Three far-right celebrities have been denied entry to the UK in the past week under the Home Secretary’s power to exclude people when it is conducive to the public good. But what is the law about refusing to let people come into the country and on what basis can it be done?

Big on the far right

The Home Office has confirmed that Austrian national Martin Sellner and American Brittany Pettibone were refused entry at Luton airport on 9 March, detained, and removed from the UK on 12 March. Lauren Southern, a Canadian, was refused entry at Calais on 13 March and also questioned under terrorism legislation.

The three describe their own politics as “right-wing”. Others might prefer the terms “far-right”, or even “alt-right” (the same, but with YouTube videos). Their case has become an instant cause célèbre for websites of that ilk.

Sellner is a leader of the Generation Identity white nationalist movement. He was filmed in a recent ITV documentary “using racist language and discussing the ‘Jewish Question'”, according to the charity Hope not Hate. His partner, Pettibone, is a writer and vlogger. Among her recent work is a six-part video series about George Soros. Southern, 22, has 450,000 followers on YouTube and 350,000 on Twitter. Last month she was photographed at a stand in Luton with posters saying “Allah is a gay god”. All three are associated with EDL founder Tommy Robinson, who they planned to visit while in the UK.

Why refuse entry to the UK?

Pettibone and Southern have both shared refusal letters online which refer to their past behaviour and planned activities in the UK. The authorities appear to have taken exception to Pettibone’s proposed interview with Robinson — “a far right leader whose materials and speeches incite racial hatred” — Sellner’s plan to speak in Hyde Park at which event violence was anticipated, and Southern’s recent distribution of “racist material”.

This is unbelievable . The home office arrested & detained a female American journalist for 3 days before deporting her, they gave her paper work claiming I am a far right leader who incites racial hatred. If I incite “racial” hatred then take me to court & try me you liars pic.twitter.com/4oZ6YySOzv

— Tommy Robinson 🇬🇧 (@TRobinsonNewEra) March 12, 2018

The letters refer to their request for entry “as a visitor”.

The Immigration Rules covering visitors are in Appendix V. Visitors from rich countries do not tend to need visit visas in advance unless staying for longer than six months. People who do not need visit visas are known as “non-visa nationals” and “may apply for leave to enter as a visitor on arrival at the UK border”.

Whether or not a visa is required makes no difference in terms of the “suitability requirements” in Part 3 of Appendix V. They apply to “all applications for visit visas, leave to enter, and an extension of stay as a visitor except where explicitly stated otherwise”.

The first suitability requirement is as follows:

Not conducive to the public good: exclusion and deportation

V 3.2 An application will be refused if:

(a) the Secretary of State has personally directed that the applicant’s exclusion from the UK is conducive to the public good; or

(b) the applicant is currently the subject of a deportation order or a decision to make a deportation order.

V 3.3 An application will be refused if the decision maker believes that exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant’s conduct (including convictions which do not fall within paragraph V 3.4), character, associations, or other reasons, make it undesirable to grant their application.

For good measure, a similar power to refuse applications for leave to enter is set out at paragraph 320 of the general grounds for refusal in part 9 of the Rules. Leave to enter must be refused:

(6) where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;

And should normally be refused where:

(19) The immigration officer deems the exclusion of the person from the United Kingdom to be conducive to the public good. For example, because the person’s conduct (including convictions which do not fall within paragraph 320(2)), character, associations, or other reasons, make it undesirable to grant them leave to enter.

Accompanying guidance spells out that “a person does not need to have been convicted of a criminal offence” to be refused entry on character grounds. Many different factors are mentioned in the guidance — see this post by Colin and Nath for the full list. They include public order:

Where a person has engaged in activities that are likely to give rise to a risk to public order, you would refuse under character, conduct and associations grounds because it is undesirable to allow them to enter or remain in the UK.

Examples include but are not limited to:

• the person has made speeches (or similar) with the aim of inciting ethnic and/or racial, religious or other discriminatory violence
• the person intends to come to the UK to make such speeches (or similar)
• admitting the person may lead to an offence being committed by someone else. For example, the applicant may have extreme views which if expressed could result in civil unrest and a breach of the law

And a list of “unacceptable behaviours” drawn up in 2005. This covers a range of activities — including public speaking, distributing leaflets or running a website — if among other things they “foster hatred which might lead to inter-community violence in the UK”.

Clear precedents: Geller and Wilder

The threat to public order from inflammatory rhetoric was the justification for the decision of Theresa May, as Home Secretary in 2013, to use her power under paragraph 320(6) to bar an American couple from coming to the UK to attend an EDL rally. The circumstances were a little different — that was in the aftermath of the Lee Rigby murder — but the couple involved, Pamela Geller and Robert Spencer, were also zealous right-wing, anti-Islam writers and associates of Tommy Robinson.

Neither Geller nor Spencer had any criminal convictions, but in the words of the Court of Appeal, “their views excite controversy and [they] are regarded by some, perhaps by many, as Islamophobic”. In R (Geller & Anor) v Secretary of State for the Home Department [2015] EWCA Civ 45, three judges of that court backed the Home Secretary in a judicial review challenge to the decision to refuse entry to Geller and Spencer, saying that

it is obvious that the Secretary of State had to consider whether the presence of the Applicants might lead to inter-community violence in the UK on the occasion of their proposed visit.

Free speech arguments did play a role in that case. Article 10 of the European Convention on Human Rights protects freedom of expression, and the court accepted that “a refusal of permission to enter a country which is substantially based on a desire to prevent a person expressing or others from receiving her views is an interference with their Article 10 rights and hers”, quoting R (on the application of Lord Carlile of Berriew QC and others) v Secretary of State for the Home Department [2014] UKSC 60.

But these rights are not absolute, and the court said that it had to “attach special weight to the assessment of the Home Secretary of the question whether a restriction on freedom of expression is necessary in order to prevent public disorder”. In those circumstances, at least, there was nothing disproportionate about the Home Secretary of State’s decision.

There are more stringent rules applying to the exclusion of EU citizens like Sellner, but it is still possible. Section 23(1) of the Immigration (European Economic Area) Regulations 2016 states that:

A person is not entitled to be admitted to the United Kingdom… if a refusal to admit that person is justified on grounds of public policy, public security or public health.

Section 27 fleshes out the circumstances in which such refusals are justified. Among much else, “the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”, which is similar to the language used in the refusal letters published online.

So while the reason for Sellner being refused admission may be unusual, the fact of the refusal is not by any means unique. Last year almost 4,000 EU citizens were turned away at the border, seven of whom were Austrian.

https://twitter.com/Martin_Sellner/status/973331314026995713

In 2009, the Dutch politician Geert Wilders was refused entry under the EEA Regulations. He was told:

There is a considerable risk that your presence in the UK would threaten community harmony and therefore public security. In light of this I consider that your presence could foster hate and lead to inter-community violence within the UK.

He successfully appealed that refusal, however, in GW (EEA reg 21: “fundamental interests”) Netherlands [2009] UKAIT 00050. The Upper Tribunal held that there was “no demonstrable risk of community disharmony or disorder arising from the Appellant’s arrival” and that denying him admission to the UK was a disproportionate interference with his right to freedom of expression.

Whether or not a legal challenge emerges from this week’s flurry of refusals remains to be seen.