The Case of Rene Gonzalez Sehwerert and Theresa May, the Secretary of State of the Home Department
Campaign News | Saturday, 16 July 2016
Mohamed Elmaazi, Rob Miller, Cuba Solidarity Campaign Director, Barristers Shivani Jegarajah and Mark McDonald and the legal team outside the Royal Courts of Justice
Mohamed A. Elmaazi, an independent legal researcher who worked with counsel at Mansfield Chambers throughout the case, reports on the long campaign to win UK visas for Rene Gonzalez and the Miami Five
In January 2014 Rene Gonzalez Sehwerert, former Counter-terrorism officer and US political prisoner, applied to visit the UK to give evidence to the International Commission of Inquiry into the Case of the Miami Five.
However it would take nearly two and a half years from this application before Rene would ultimately receive a visa and be able to set foot on British soil.
Round 1- The International Commission of Inquiry
The Entry Clearance Officer (ECO) at the British Embassy in Cuba refused Rene’s visa application on the basis that he had been sentenced to a term of “imprisonment of at least 4 years”. That was putting it mildly as Rene had in fact been sentenced to a term of 15 years imprisonment.
There is an exception to the UK immigration rules which typically refuse visas to those sentenced to 4 years or more in prison but HMG refused Rene’s visa application.
Rene’s ability to attend and give evidence to the ICI was obviously of great significance at the time because the other members of the Miami Five were still imprisoned in the US. It was hoped that the Commission would add pressure onto the US government to release the remaining men or offer them a new trial.
The only way to challenge this decision was on the basis of an urgent judicial review application to try and ensure that he could attend the Commission.
A Brief Note On Judicial Review[1]
Judicial review is the process by which the lawfulness of decisions of public bodies are challenged.
For every stage of an appeal permission must be requested from the Court or Tribunal and if only if permission is granted the appeal will be considered by the Court/Tribunal.
In immigration cases the judicial review is filed with the immigration tribunal. Because of the urgency of the case (impending Commission and then with the subsequent applications, impending meetings at the UK Parliament) and because what was in dispute was a matter of law (i.e. how a specific law was being interpreted and applied) the appeals are filed with the Upper Tribunal (Immigration and Asylum Chamber) or UT(IAC) for short.
The process, broadly speaking, proceeds as follows:
- An Application for UK visa is made.
- The Visa is Refused by UK authorities.
- An Application for permission to appeal, along with supporting documents, is filed with UT(IAC)
- If permission to appeal is granted, the appeal is decided by an judge ‘on the papers’
(i.e. based purely on written submissions without an oral hearing).
- The UT(IAC) Judge either rules in favour or against the applicant.
- If UT Judge rule against the applicant, another appeal is made before a different judge, but still with UT(IAC), this time requesting an oral hearing (with further written submissions) and
- The second Judge can then either rule in favour or against the applicant/appellant
- If there is still a point of law to appeal again (less likely) another appeal can be made but this time to the Court of Appeal.
So two appeals can potentially be made at the UT(IAC), with a further one potentially to the Court of Appeal.
At every stage in the process Court fees are being paid by the applicant (in this case it was by Cuba Solidarity Campaign) for nearly every application made. The costs run into many hundreds of pounds simply for Court fees.
Round 2 Appeals at the Upper Tribunal
Experienced human rights barrister Shivani Jegarajah[2] (Mansfield Chambers) took the case on behalf of Rene and Cuba Solidarity Campaign, and challenged the refusal to grant Rene a visa by way of judicial review at the Upper Tribunal.
The first appeal (decided on the papers) was lost and a second appeal was granted by the UT(IAC) to argue the case at an oral hearing. Legendary Appellate US lawyer Martin Garbus was in London for ther Commission of Inquiry and gave evidence to the oral hearing regarding The Five, the unfair nature of their trials and about the importance of Rene’s ability to attend the Commission to give evidence for the remainder of The Five.
The UT Judge at the oral hearing did recognise that the best evidence for the Commission should be given orally and in person by Rene.
Unfortunately, the Judge nonetheless determined that as Rene was in France at the time (waiting to enter the UK) he could simply provide evidence to the Commission via video link and therefore decided the case in favour of the UK Government in refusing Rene’s visa application.
The case was lost and Rene’s contributions to the Commission were hampered by the nature of the video link connection.
Round 3 Members of Parliament Invite Rene
Nearly seven months later Rene applied to visit the UK again. This time he applied with an invitation from 27 Members of both Houses of Parliament, including Jeremy Corbyn MP, John McDonell MP, Caroline Lucas MP, and Baroness Angela Smith.
These MPs have long supported The Five in their quest for justice including signing parliamentary motions on the issue.
This invitation, which was drafted further to the suggestion of Mark McDonald[3] (Mansfield Chambers), marked a significant shift in the nature of Rene’s visa application. The MPs, in their capacity as MPs, invited Rene to the UK to “discuss the case of the Miami Five and the humanitarian appeal for the remaining three prisoners” in face to face meetings.
It was also made clear this time that video link would not be a suitable substitute for face to face discussions because of:
- the expense and unreliability of having video link to Cuba ;
- the unreliability of video link at the Palace of Westminster; and
- the nature of the conversations themselves.
As Ms Jegarajah would later state in written submissions to the UT(IAC) there were, “core constitutional implications of [Rene’s] invitation and visa application to speak to Members of the Houses of Parliament”.
It was believed that because this time round, Rene was invited to attend meetings by a large group of distinguished MPs, with letters of support being sent to the then UK immigration minister and to the UK ambassador in Cuba, Rene’s application would be deemed to fall under ‘exceptional circumstances’ under the immigration rules. It was not.
The ECO in Cuba refused Rene’s application again, this time stating that:
“..the circumstances you have put forward are not considered to amount to exceptional circumstances as you have applied solely for the purpose of attending a Parliamentary meeting” [emphasis added].
Round 3 – Appeal to Upper Tribunal
An appeal against this second refusal was made on an urgent basis (more expensive) with the UT(IAC).
The constitutional significance of the case and the article 10 rights (freedom to receive and impart information) of the MPs was heavily emphasised.
The first appeal was lost ‘on the papers’ and we obtained an oral hearing also on an urgent basis (even more money).
At the oral hearing Rene was represented by Nishan Parmajorthy[4] (Mansfield Chambers) who forcefully and succinctly emphasised the constitutional significance of the invitation and the rather blasé manner in which the ECO dismissed the significance of the invitations from the MPs, and therefore the human and constitutional rights and privileges of the MPs.
The UT(IAC) Judge was ultimately unmoved and determined that there was no clear exception to the immigration rules, that the convictions of The Five were very serious and notwithstanding the fact that it is the very nature of the trial which was the subject of the invitation, the refusal to grant Rene the visa was within the right of the ECO and was therefore lawful.
Round 3 The Court of Appeal Hears the Case
The UT(IAC) Judge’s decision was itself appealed, this time to the Court of Appeal.
Further court bundles are prepared and filed with the Court and further court fees are paid.
It was the first week of September 2014, the last two appeals at the UT(IAC) were decided only a few days previously. The clock was ticking and we were running out of time before the 10th of September which was the date set for the meetings at Parliament. It was still possible that if a positive decision was reached by the Court then Rene could conceivably catch the next plane to attend to the meetings in Parliament.
Three judges heard oral arguments at the Court of Appeal made by Mark McDonald on behalf of Rene and the MPs. Normally such an appeal would be heard by only one judge, so this was relatively unique and quite significant (when three judges hear a case their decision can be seen as having even greater weight and authority if it is unanimous).
The judges questioned whether they had the authority under the circumstances to Order the Secretary of State for the Home Department (at the time Theresa May) or the ECO to grant the visa to Rene.
The Court also questioned whether they could make such an important ruling within such a short time frame and without the UK Government being represented in Court. The SSHD was not represented in Court (this is a much more common than you might think).
The Court however did accept that this was a very important case, particularly because of the constitutional and human rights arguments made.
The Court refused to compel the SSHD to grant a visa, however, it nonetheless Ordered that the case be considered by a judge within the Court of Appeal to determine whether permission to appeal should be granted (sounds very strange doesn’t it, what was that whole hearing about if not at the very least to determine whether to grant permission to appeal? But there you go, that’s what they decided).
To summarise, the Court said this:
“Sorry Rene won’t be able to make it to these meetings at Parliament this September. We regret the wasted time and public funds involved in setting up new meetings in the future. However, because the MPs would clearly still likely to meet Rene and new meetings can be arranged in the future, we think this case is significant enough that a decision regarding whether Rene’s case falls under an exception under the immigration rules needs to be decided once and for all”.
Rene therefore missed the meetings scheduled at Parliament for the 10th of September 2014, though his wife, Olga Salanueva, did speak to the MPs instead.
The SSHD (Home Office), presumably alarmed by the possibility of a full hearing at the Court of Appeal, decided to finally file submissions in this case. Among the arguments made was that given the 10th of September meetings in Parliament had come and gone “the case was therefore academic” and so permission to appeal should be denied.
We filed further submissions in response arguing the following key points:
- Rene’s prosecution and conviction under the rules was politically motivated and this is a clear exception to the rule denying visas to people who have been sentenced to 4 years or more in prison.
- The article 10 and constitutional rights and privileges of the MPs were disproportionally (unfairly and unlawfully) infringed upon by the SSHD.
- The MPs still desire to meet with Rene to discuss his case and that of The Five.
- The three judges at the Court of Appeal clearly felt the case was not academic.
We submitted a great many case authorities to support Rene’s case, but most notably our case rested on the decision in Lord Carlile of Berriew & others v The Secretary of State for the Home Department[5].
In the Lord Carlile case, which was quite similar to that of Rene’s (MPs invited a person to the UK and the SSHD refused the visa). The appellants in that case ultimately lost. It was deemed that there was too great a security risk to British interests if the person in question was allowed to meet MPs in the UK.
But the precedence was clear. The Court of Appeal (later affirmed by the UK Supreme Court) in the case of Lord Carlile of Berriew emphasised the fundamental importance of the article 10 rights of the MPs to meet those they wished to meet in face to face meetings.
Our case was bolstered by the fact that Rene posed no security risk whatsoever, he posed no risk of overstaying or breaching the terms of his visa and the visit would be relatively short.
Permission to appeal to the Court of Appeal was ultimately granted only days after the remaining members of The Five were released back to Cuba by the Obama administration in December 2014.
Round 4 The Court of Appeal Hears the Case, Again
A hearing was finally set, to decide the case once and for all, on 20 October 2015
Shivani Jegarajah represented Rene at the hearing (with solicitors from Duncan solicitors from Public Interest Lawyers Limited and represented the MPs who also intervened in the case.
The night before the big day Shivani and I were still discussing the viability of convincing a British Court to make a determination that a prosecution/conviction in the United State was ‘politically motivated’ (regardless of how painfully often it may occur in practice).
I had spent many an hour gathering information and evidence from activists, journalists and others here and in the United States of the politically motivated nature of the case.
I poured over hundreds of pages of documents released by the US State Department in Freedom of Information Requests to journalists and others in the US (themselves only released after very lengthy and expensive battles on their part).
These documents proved that the US Government was, in violation of its own laws, secretly paying ant-Castro journalists during the trial of The Five tens of thousands of dollars, while they were regularly pronouncing the Five guilty before and during their trial - in, print, radio and televised press - and in violation of an Order of the trial judge.
The politically motivated nature of the claim was therefore forcefully argued within the written submissions filed with the Court of Appeal.
When I went home it was 11 at night and Shivani was still in Chambers preparing for the big day.
The hearing lasted one full day. Once again, three judges heard the case.
The Big Day
To my shock and surprise Shivani completely ditched the ‘Politically motivated conviction’ argument and stuck only to the constitutional principles in play, which was emphasised by Mark McDonald.
As it turns out, this was a very wise decision, as the Court made it repeatedly clear that it “had no interest in going over or re-litigating the original US trial of the Five”. That being said, the human rights, UN and other reports all about the nature of the case and their (kangaroo) trial clearly had the desired effect.
Quite significantly it was made clear by Counsel acting on behalf of the UK Government that the Secretary of State for the Home Office (SSHD) herself (Theresa May) specifically, and personally, backed the refusal and therefore this was no longer simply the case of a lowly ECO in Cuba (or New York, we never were quite clear on where the decision was made) making the decision.
It was still the position of the UK Government that what the MPs wanted in this case was trumped by what the SSHD wanted, despite it being accepted that Rene posed no threat to the UK.
After a non-stop marathon of arguments the Court finally adjourned.
It is worth reading the whole judgment[6] of the Court of Appeal, but in short, we won.
Lord Justice Richards, who wrote the unanimous decision of the Court, quoted Lord Justice Kerr of the Supreme Court (in the case of Lord Carlisle of Berriew and Others) who said:
“Article 10 rights are, in any context, of especial significance but the critical importance of free speech in this case should not be underestimated.
Our Parliament is the sovereign part of our constitution. Its laws prevail over everything else. The courts accord greater deference to the decisions of Parliament than to those of any other body.
When a distinguished group of parliamentarians wishes, in the interests of democracy, to conduct a face-to-face exchange with someone whose views they consider to be of critical importance, only evidence of the most compelling kind will be sufficient to deny them their right to do so. This court has a bounden duty to uphold that right unless convinced of the inescapable need to interfere with it” [emphasis added]
I couldn’t have put it better myself.
The Court also issued an Order effectively saying that Rene should be granted a visa as the UK Government had ‘disproportionately’ interfered with the rights of the MPs in refusing Rene the visa and denying them the opportunity to meet with him face to face.
Before I complete the story – about what could rightly be called The Mysterious Case of the Judicial Review that Never Ends’ – it is that the costs of this case, excluding Court fees, would normally have run into thousands upon thousands of pounds.
This case involved, multiple veteran barristers of high level seniority who can normally command highe rates of fees, conferences with solicitors, clients, liaising with the Court and others, along with the many hours of painstaking research, drafting and review of legal and other documentations conducted by yours truly (I was ultimately compensated as my landlord refuses to accept rent paid with hugs and kisses)
However, all of this work (excluding my own contributions) was without charges of professional fees from counsel and the solicitors firms of any kind.
This case was taken as a matter of principle and solidarity by Ms Jegarajah, Mr Parmajorthy, Mark McDonald, and the Chambers of Michael Mansfield QC as a whole, on a completely pro bono basis.
Now normally this would be the end of the story. The second highest Court in the land clearly stated that Rene could come to the UK. They determined that the SSHD & the ECO unlawfully interfered with the article 10 rights of the MPs by refusing Rene the visa. Permission to appeal to the UK Supreme Court was denied. But …….
Round 5 – Rene applies for a UK visa for the Third Time (and this time Gerardo Hernandez applies as well)
Another invitation was sent by 28 MPs. This time it included the names of all of the Five. Now the list of those making the invitation included Jeremy Corbyn MP, now Leader of HM Opposition, John McDonnell MP now Shadow Home Secretary and Baroness Angela Smith, now leader of the opposition at the House of Lords.
Rene and Gerardo Hernandez and their families applied for UK visas.
Along with their applications they included, the new invitation letter, a copy of the Court of Appeal judgment in Rene’s case, and specially tailored legal representations explicitly explaining how the case has been litigated, the law has been settled and both Rene and Gerardo should be able to come to meet the MPs.
On the assumption that the law was now settled and the applications were a mere formality, an entire schedule, even bigger than before was organised by trade unions and CSC at great cost and time, with funds raised for the plane tickets and other costs associated with the Tour.
To our surprise, Rene and Gerardo both received a response from the UK Immigration & Visas that their cases were “complicated” and would therefore take longer than the normal 15 business days to process and no date was given as to when the decision would be taken. Any protracted delay would mean that the Five would again miss the scheduled parliamentary meetings and the MPs would again be thwarted in their desire to meet with the men at the Houses of parliament.
Round 6 – TKO
We filed yet another judicial review, this time challenging the UKVI and SSHD’s ‘failure to act’.
It was somewhat risky, the UT(IAC) might decide that not enough time had passed and that the case was complicated (even though by now it clearly was quite simple).
We argued in our latest submissions to the UT(IAC) that the UKVI and the SSHD - in failing to promptly grant a visa to Rene - was ‘frustrating’ the Court of Appeal decision, and violating the Court Order of the Court of Appeal, potentially placing the SSHD (still Theresa May) in contempt of Court.
Letters were sent out, MPs were contacted and government ministers were pushed.
As was the case with the previous application I was involved in a race against the clock, and in constant communication, persuasion, and at times even cajoling UK government lawyers and staff at the UT(IAC) to get the hearings listed on an urgent basis. Rob Miller of CSC played a crucial role throughout this process as well, liaising between Rene, Gerardo, the UT(IAC), UKVI, the MPs, Shivani, Mark McDonald and myself. He even managed to convince the UT(IAC) to reschedule one of the hearings to an earlier date.
More than 500 people responded to an urgent action appeal made by CSC and contacted their MPs in support of Rene and Gerardo’s visa application. Baroness Angela Smith, Baroness Gloria Hooper, Jeremy Corbyn (at this point the Leader of HM Opposition) also personally intervened in this case, and the new Shadow Justice Minister Richard Burgon MP personally contacted his counterpart in HMG. Around 20 other MPs and a number of key trade unions helped by contacting senior Government figures.
It seemed like the SSHD was planning on fighting to the bitter end, until that is, we received a call from a senior government lawyer on the case.
Quite literally at the 11th hour, the night before the case was to be heard orally at a full substantive hearing before the President of the UT(IAC), the SSHD caved.
Rene was to be granted a visa, in exchange for withdrawing the appeal. Perhaps it wouldn’t have looked too good for a person in the middle of a leadership contest for the highest political office in the land, to be subject to an Order from the President of the UT(IAC) finding that either she or her Ministry were in contempt of Court. It quickly became clear that Gerardo and the other family members would also receive their visas.
The victory was complete and the Five would be able to visit Britain – a country that had provided such valuable solidarity to the men and their families for so many years in their campaign for justice and freedom.
Ultimately, this case has been about far more than whether Rene and Gerardo could visit the UK, as important and central as that was. This case was also about the limits of Executive authority, the independence of the judiciary and the rights of our MPs.
This is a victory for the (article 10) human and constitutional rights and privileges of our Members of Parliament and it is a victory for the rule of law. No branch of government can above the law in a democracy and as such this result should be a cause of celebration for all of those who believe in democracy and support the rule of law.
The significance of the grassroots involvement and activism in this case as well as the political solidarity and interventions from sympathetic politicians cannot be understated.
In my personal view, the activism, public and political pressure proved as important, if not more so, than the legal actions taken, in achieving success in this case.
Congratulations and thanks should be given to everyone who played a part.
Mohamed A. Elmaazi is an independent legal researcher who has worked with counsel at Mansfield Chambers throughout this case.
[1] It is one of the very few mechanisms which exist to challenge decisions made by the state and other bodies deemed to be providing a public function see https://www.judiciary.gov.uk/you-and-the-judiciary/judicial-review/
[2] http://www.mansfieldchambers.co.uk/shivani-jegarajah/
[3] http://www.mansfieldchambers.co.uk/mark-mcdonald/
[4] http://www.mansfieldchambers.co.uk/nishan-paramjorthy/
[5] https://www.supremecourt.uk/cases/docs/uksc-2013-0098-press-summary.pdf
[6] http://www.cuba-solidarity.org.uk/resources/r%20sehwerert%20v%20eco%20cuba%20-%20approved%20judgment.doc
