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Home Office must consider banning Prince from the UK, judge rules
Credit: Wei-Te Wong on Flickr

Home Office must consider banning Prince from the UK, judge rules

No, not Prince Andrew, who has enough problems already.

Not the late American pop star either.

Prince Nasser Bin Hamad Al Khalifa of Bahrain.

According to the High Court in FF v Secretary of State for the Home Department [2021] EWHC 2566 (Admin), the Home Office is required to consider banning Prince Nasser from the UK — but not required to disclose its decision.

Torture accusations

FF — who has been granted anonymity, presumably for his own protection — is also a citizen of Bahrain. In February 2011, while taking part in a peaceful protest in the capital Manama, he was assaulted by the police, arrested without charge and tortured whilst in detention. He left Bahrain and secured refugee status in the UK.

Human rights organisations have reported that the Prince was, in the court’s words, “personally involved in the torture that detainees who were held after the protests in February 2011 were subjected to”. FF has, for many years, engaged in efforts to hold Prince Nasser accountable for his alleged actions.

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These include a successful challenge to the Crown Prosecution Service’s conclusion that the Prince was immune from prosecution in the UK. The Metropolitan Police subsequently decided that there was insufficient evidence to prosecute.

In 2016, the focus shifted from prosecution to an entry ban. FF wrote to the Home Office to request that the Prince be excluded from the UK. The Home Secretary has a general power to exclude from the UK a foreign national whose presence would not be conducive to the public good. The power is normally exercised in circumstances involving national security, international crimes (such as war crimes, crimes against humanity or genocide), and corruption.

The Home Office responded to FF’s request explaining that it is not its general policy to discuss or comment on an individual’s immigration matters with a third party. As a result, FF was left not knowing whether or not his representations had been considered.

The question for the High Court: is the Home Office required to consider the material and representations provided and assess whether the conditions for excluding the Prince from the UK are satisfied?

A duty to consider exclusion

Mr Justice Dove decided that, given the wording of the Home Office’s policy on exclusion, it must at least consider bids to have someone excluded:

… it is clear from the terms of the policy that the potential sources for the process of reaching an exclusion decision include even such material as ‘uncorroborated tip-offs by members of the public’. In other words the policy contemplates giving consideration to material which has been referred to the defendant from individual members of the public, their representatives or other organisations. Whilst the policy does not directly facilitate such communication, nor does it explicitly encourage referral by members of the public, it does not suggest that where such referral occurs the material brought to the attention of the defendant will be disregarded unread.

The Home Office argued that imposing a duty to consider material sent in would render the policy unworkable. Officials would need to devote significant resources to addressing requests which were not credible or vexatious.

Dove J wasn’t convinced:

I am unimpressed by the defendant’s expressed concerns in relation to being inundated with requests from individuals and others for exclusion decisions. It is clear that the policy has been published for a significant period of time including within it the reference to consideration being given to tip-offs by members of the public. This has not led to any onerous administrative burden.

He was therefore “in no doubt” that the answer to the question above was Yes. Considering the representations received in relation to the Prince is a requirement created by the Home Office’s own policy.

But FF was deprived of much of the benefit of this conclusion due to the court’s decision on ground 2.

No duty to inform

FF also argued that he is entitled to be informed of whether a decision has been made to exclude the Prince from the UK, and the reasons for that decision. As the person who furnished the Home Office with the material which would form the basis for the decision, he has a clear and obvious interest in the outcome. As part of the common law duty to provide reasons, the Home Office must respond to the representations with reasons for their decision.

The Home Office argued that there is no general or universal duty to give reasons for an administrative decision, and that there is no such duty in the context of this case. FF has no right or expectation under the policy to be able to demand the exclusion of another person from the UK. The Prince’s immigration affairs are a matter between him and the Home Office, and not part of the public domain: he is entitled to privacy.

This time, Dove J agreed with the Home Office:

… there is nothing in the defendant’s policy or her practice which would substantiate a requirement to give notice of any decision in respect of exclusion and its reasons in this case. The defendant is entitled to approach her dealings in relation to the immigration affairs of individuals as being sensitive and confidential to them, and not to make them available to third parties, even where those third parties have submitted evidence to her as a result of their interest in the individual under consideration. Neither the framework of the decision-making process, which apart from the opportunity to submit information provides for no role for third parties, nor the nature of the decision itself, which obviously directly impacts upon the individual under consideration for exclusion, requires a duty to give reasons to be imposed in the present case.

It is only the person being excluded who has to be notified in writing of the decision and given reasons for their exclusion from the UK.

Precedents no help

FF relied on numerous previous cases but all were from very different contexts. One was a planning case, which involves decisions being made:

… in an open forum, in the context of a statutory framework which provides specific opportunities for third parties to make representations and to expect that those representations will be taken into account in the decision making process. Public participation is a key element of the planning process.

Another was a case involving an apparent inconsistency between a coroner’s inquest returning a verdict of unlawful killing and the Crown Prosecution Service’s decision not to prosecute. The particular circumstances of that case demanded that reasons were provided to explain how the inconsistent decision had been reached.

A previous case concerning the extradition of former Chilean President Pinochet was also held to be of little assistance in understanding the scope and extent of the Home Office’s duty to give reasons in FF’s case.

As a result, FF will be left in the dark. He will not be told if the Prince is to be excluded from the UK. The Home Office is required to consider his representations, but he will never know the outcome of that consideration. No doubt a deeply dissatisfying result for him.

Iain Halliday is currently training to be an advocate (the Scottish equivalent of a barrister) at the Faculty of Advocates. Prior to this he worked as a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law.