In my previous post on this I forgot another reason why the decision to exclude Geert Wilders from the UK breaches EU law. It’s arbitrary – in this sense of treating Wilders differently from UK nationals.
One of the important European Court cases on free movement is Case C-115/81 Adoui and Cornuaille in which two French women complained about Belgium’s attempts to get rid of them on the grounds that (para. 2 of the judgment)
their conduct was considered to be contrary to public policy by virtue of the fact that they were waitresses in a bar which was suspect from the point of view of morals.
The question before the court was (para. 5) whether Belgium, which did not outlaw prostitution, could lawfully
expel from its territory a national of another member state or deny him access to that territory by reason of activities which , when attributable to the former state’s own nationals, do not give rise to repressive measures
It’s important to note that the court was considering the same rules on explusion on grounds of public policy, and the same test – whether the individual’s conduct poses a sufficiently serious threat affecting the fundamental interests of society – as are now laid down in Directive 2004/38. And the answer? It’s in paragraph 8:
conduct may not be considered as being of a sufficiently serious nature to justify restrictions on the admission to or residence within the territory of a member state of a national of another member state in a case where the former member state does not adopt, with respect to the same conduct on the part of its own nationals repressive measures or other genuine and effective measures intended to combat such conduct.
So the question must be, what law would Geert Wilders have broken in the UK?
I don’t think he’d have broken any because, thankfully, the government’s mad plan to bring in a religious hatred offence was watered down. I don’t think he would have committed any offence under sections 29B(1) or 29E(1) of the Public Order Act 1986 (as inserted by the Racial and Religious Hatred Act 2006) because he’s not to my knowledge used threatening words and his film, Fitna, isn’t threatening either. Some people might find his views and the film offensive, but that’s something else. It’s not clear that his intention is to stir up hatred – it doesn’t seem to me to be – and even if it is, it’s not clear it would be religious hatred within section 29A because he does not lambast all Muslims – he has made clear he believes some or most Muslims are peaceful and law-abiding. So he’s not having a go at them as a group because of their belief.
If his conduct wouldn’t be penalised if done by British citizens here – for example, if members of the House of Lords who show his film tomorrow are not arrested under section 29E – then Wilders’s exclusion must be unlawful under the principle in Adoui and Cornuaille.
Wilders’s case gets stronger and stronger.
I agree… a good analysis, if I may say so.
As i believe in the rule of law, like most sane people, if this is right Wilder’s exclusion would be unlawful.
The difficulty comes when political expediency overrides the application of the law – but to suggest that would happen would be absurd?
Oh, quite – it won’t end up being politically expedient either, though, if Wilders ends up winning in court and arriving at St. Pancras (that’s how I’d do it if I were him) to cheering crowds of supporters. I think he may have been handed just that moment, though.
When asked on Twitter.com whether the exclusion of Mr. Wilders was not against European rules, Dutch foreign Minister Maxime Verhagen replied that every country, including NL and UK have the right to deny people entrance on grounds of public order. [http://twitter.com/MaximeVerhagen/status/1195732267] – in Dutch.
I assume that the UK government can legally deny a EU citizen to enter the UK, if the presence of that person would present an immediate danger for the public order and safety. In this case, I strongly doubt if the threat to public order would be so serious as to warrant the exclusion of Mr. Geert Wilders. I don’t think, however, that it is a priori illegal.
Okay, but what you’ve said would apply just as much to Adoui and Cornuaille, wouldn’t it? Or to Learco Chindamo? When you look at the case law in detail, it’s more complex than that. And if you’re right, and the threat isn’t serious… then excluding him is indeed contrary to the Directive.
Carl,
I concur. The right to move and reside freely is subject only to a few exceptions, and as exemptions they must be interpreted narrowly.
Public policy, public security and public health can not be defined unilaterally by goverments to cover every facet of human life they happen to dislike.
Otherwise there would be no rule of law, only arbitrariness.
Sometimes one wonders at the ability of governments to undo themselves.
I’m very glad your view is the same as mine, Ralf.
I imagine Jacqui Smith has been given the same advice – Home Office lawyers must at least have told her he has a decent case on appeal. She’s chosen to face the legal risk, rather than the political risk of allowing him in.
Jacqui does after all have a high opinion of herself so perhaps she imagined that he would be so impressed by her arguments and stay away. However, he landed at Heathrow about an hour ago, so let’s see what happens.
Carl, thank you for going to the trouble to cover this and provide some legal insights. I live in hope that this government, and its successor, will learn that the fashionable “I am the law” attitude of the executive branch does not work in the real world. And Jacqui is no Judge Dredd.
I doubt he would have got to St Pancras. British immigration checks are on the continent before you board the train, so he would likely have been refused entry to the UK at Brussels, Lille, or Paris. When I caught a cross channel ferry a couple of months ago it was similar – a British check in Calais. If he really wanted to enter the UK, the thing to do would have been to fly to Dublin, enter Ireland, and then get a flight to London, as there are no checks when flying from Ireland to the UK, although as people are still technically subject to immigration control when making such journeys, the British could still have theoretically looked at passenger lists and turned him away.
If he really, really wanted to enter the UK, he could have flown to Dublin, then driven or caught a train to Belfast before catching a domestic flight or ferry to London. However I suspect he wouldn’t want to be seen to be doing anything evasive like that, and wanted to be either let in or pointedly turned away.
HOL: Oh okay. You are suggesting he do that after winning in court. I misread you.