Decision to exclude church leader was unfair

LAW REPORT 2 November 1995

Regina v Secretary of State for the Home Department, ex parte Moon; Queen's Bench Division (Mr Justice Sedley); 1 November 1995

A person applying for entry clearance to come to the United Kingdom is entitled to an opportunity to respond to matters raised against him before a decision is made.

Mr Justice Sedley declared that the Home Secretary's decision of 27 October 1995 refusing entry clearance to the applicant, Sun Myung Moon, was unlawful by reason of procedural unfairness.

The applicant, the founder and leader of the Unification Church, was required by the Home Secretary to have entry clearance to visit the United Kingdom. The applicant last came to the UK in 1978.

In 1989 the applicant was refused entry but, on appeal, an adjudicator directed that entry clearance should be issued in December 1991, and again in July 1992 with effect until January 1993.

On 18 October 1995 the applicant applied to the entry clearance officer in Seoul, Korea, for a visit to the UK from 3 to 5 November. The purpose of the visit, described as a single private visit, was to meet members of the church and to be briefed about the church here, and on 4 November to a deliver a speech to 1,200 guests, many of whom were members of the church. The application was referred to the Home Secretary, who decided on 27 October to refuse entry clearance on the ground that the proposed visit would not be conducive to the public good.

The applicant applied for judicial review of the decision on the grounds, among others, that the Home Secretary was under a continuing obligation to comply with the adjudicator's 1991 direction and the applicant had not been given the opportunity to deal with the factors taken into account by the Home Secretary , which according to the evidence included the activities of the Unification Church and its malign effects on the families of its members and widespread concern about the church and the applicant's visit.

David Pannick QC and Mark Shaw (D.J. Coombs & Co) for the applicant; Michael Beloff QC and Ian Burnett (Treasury Solicitor) for the Home Secretary.

Mr Justice Sedley said that there was now no right of appeal to an adjudicator where entry clearance was refused on the ground that the Home Secretary concluded that a person's exclusion was conducive to the public good.

It was contended that the Home Secretary's decision could not withstand the strict scrutiny required by the law. The Unification Church was a lawful organisation and enjoyed charitable status. However, many things might be contrary to the public good without being unlawful. Although the decisions in December 1991 and July 1992 were both relevant facts to which the Home Secretary must have regard, there was no obligation in law to grant entry clearance. Nothing in the history of the case or the law truncated the making of the decision of whether exclusion was in the public good.

The question therefore was whether the Home Secretary exercised his power fairly. There was no perceptible reason in the Home Secretary's decision letter for his conclusion on 27 October. There was a want of fairness in failing to afford the applicant to deal with why in 1995, unlike in 1992, it was not in the public good for him to come here. There was a departure from the ground rule that there was an obligation to listen fairly to both sides. The timescale was not such as to make that principle inapplicable. It was precisely the unpopular applicant who was entitled to that principle.

The objection to the applicant, as opposed to the organisation, was that the visit would seek to promote his church and therefore was not conducive to the public good, but there was a distinction between the promotion of the church and the encouragement of existing adherents. The applicant's plans, including addressing 1,200 guests, were for the Home Secretary to weigh.

The applicant now had the Home Secretary's reasons for his decision and could respond to them.

Ying Hui Tan, Barrister