Analysis

Britain could legally ban Donald Trump from entering the country, but would we want to?

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53

It’s do-able, but perhaps unwise, say top immigration lawyers

lead1

The UK is calling for Donald Trump to be banned from entering the country, following shockingly anti-Islamic comments made by the outspoken billionaire.

And it’s not just for show — in law, it looks like it might actually happen.

This week, the Republican presidential candidate sent shockwaves around the world when he called “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on”.

These comments have been described as “wildly dangerous” by top American legal commentator Glenn Greenwald, and have been met with universal anger and outrage.

Over 100,000 enraged Brits have signed an online petition asking Theresa May, the Home Secretary, to invoke anti-extremist legislation and ban Trump from entering the UK. With this number of signatures, the issue will be considered for debate in parliament.

Lead

This isn’t the first time the UK has made use of outrageous petitions, particularly when controversial celebrity figures are involved. A change.org petition calling for Katie Hopkins to be swapped for 50,000 Syrian refugees has amassed support from over 60,000.

But while we’re not so convinced that Hopkins will be shipped off to Syria any time soon, it looks like Trump may actually be blocked from entering the UK.

Really.

Legal Cheek spoke to S Chelvan, an immigration barrister at No 5 Chambers, who pointed out that the Home Secretary does have a right to ban non-UK citizens from entering the country under paragraph 320 of the Immigration Rules — the same law that saw rapper Tyler the Creator barred from entering the UK earlier this year.

What does someone have to do to get banned, and has Trump done it?

Chelvan draws our attention to the case of Geller, where two US citizens with known Islamophobic views were denied entry into the UK for fear that their views may provoke serious violence and undermine community cohesion. The court confirmed the earlier case of Naik, where a non-exhaustive list of unacceptable behaviours justifying exclusion was laid down — many of which could apply to Trump.

His presence and actions in the UK could, for example, “seek to provoke others to terrorist acts”, or “foster hatred which might lead to inter-community violence in the UK”.

Garden Court Chambers’ Colin Yeo agrees that, in law, Trump’s Islamophobic remarks justify exclusion, but is less convinced that a ban would actually be put into effect. He told us:

Trump’s call to ban all Muslims from entering the United States could certainly be said to foster inter-community hatred so there is an arguable case that he could be excluded. Whether that would be wise or counterproductive by just adding more grist to his attention-seeking, populist mill is another question.

If Trump was banned from entering the country, there is no right to appeal available, and he would have to apply for a judicial review to challenge the decision.

Given his recent comments about London communities being so radicalised that police “fear for their lives”, we’re not so sure he’d want to come here anyway.

53 Comments

Not Amused

I disagree on the law. It wasn’t a statement of hatred, it was a proposition of policy. Whether that policy would be illegal in the US is for US lawyers. But it is not an incitement to hatred or violence.

I agree it would only give him more air time and thus be counter productive.

I also feel that the modern desire to ‘ban’ or hurt anyone who you disagree with is unhelpful. We really need to address this one. It is linked to cases like Proudman. It is part of what twitter does. It’s not healthy in a western state.

We also need to address why we treat left wing hate speech differently from right wing hate speech. Both seem pretty abhorrent to me – but there has been no petition against stop the war.

(33)(7)

Concerned Citizen

Firstly, 100,000 people singing a petition is not exactly representative to the population of the UK.

What ever happened to the freedom of expression? I am in agreement with you. What trump said is going to be construed by the media as hate speech, and yes, people may be offended by what he has said. There has been talk of his hate speech being construed to mean that all muslims are banned – even servicemen/women. However this is not the case; only those who are seeking immigration. The former are protected by the constitution of the US – the latter are not.

Conversely, it could be argued that he is acting as a response to the threat of global terrorism. The statement he made is on his website if you want to check it out. He is not calling for a complete ban on all muslims; he is seeking to ban muslims until he can identify the current situation. I’m not arguing that this is right or flawless, but it has been misrepresented by the media. Does it make him a racist or a xenophobe to respond to the threat of Sharia law, which contradicts the fundamental rights of humans? It may be more suitable to label him as beheadaphobic or drownaphobic. His statement is based off the polling statistics of those who sympathise with Jihad in the USA, and those who agree with the violence that is taking place.

What is more, a similar situation is already taking place in Israel. They are conducting genetic testing to determine if immigrants are jewish. This has been given no media coverage whatsoever. Where is this petition I ask?

Asking for someone to be banned from a country is childish, and it goes against the fundamental values that we hold in our society. If you don’t want to be offended, remain coddled in the comforts of your own home.

(11)(12)

Anonymous

I vehemently disagree with your premise and argument. Trump is talking out of both sides of his mouth. He currently has deals in place with wealthy “muslims” in Dubai, which will net him millions of dollars and increase his bottom line…

He then states that “his muslim” friends agree with him, that there should be a ban on muslim immigration to the US… highly unlikely, and more importantly where is the evidence of such a conversation taking place?

So it begs the questions if there is a muslim ban, would that include his “muslim friends”/business partners who are overseas who may on occasion want or need to pop over to the US for a spot of lunch and a business deal…

Further to his populist nonsense, why is he not calling for gun control in general? And please do not use the weak argument if there was gun control then all of the “bad people” will be the only ones with guns… Its because he knows he would lose the very audience to which he is pandering, the conservative right who are card carrying members of the NRA… who value the “right to bear arms” (whether it be hand guns or assault rifle) over all other rights.

Also this is one gun incident (albeit horrific), but what about the home grown terrorist such as the disaffected young white males that are constantly shooting up their schools and malls etc… Why simply focus on the two muslims… what makes their crime more heinous than all of the others?

I think you know the answer… I await your thoughts…

(8)(5)

Boh Dear

The next most illogical step would be to ban all Americans from American. Finally putting an end to the needless killings of 30,000+ Americans every year from gun related violence.

If that’s a tad too extreme the US could always consider implementing more rigorous gun control.

(8)(1)

Not Amused

“He then states that “his muslim” friends agree with him, that there should be a ban on muslim immigration to the US… highly unlikely, and more importantly where is the evidence of such a conversation taking place?”

Ok. Provided I can make it very clear that I disagree with the crazy haired loon (sadly not Sumption this time) …

I suspect he would mean Saudi Arabia and Iran, both of whom are refusing to take Syrian refugees because they believe ISIS fighters will form part of the refugees.

I’m also not saying that Saudi or Iran are right. I’m just saying they have done this and that that is probably what Trump means.

(2)(2)

Anonymous

They’re not taking refugees because they are morally bankrupt genuinely awful countries, particularly Saudi. Saudi Arabia itself is essentially responsible for funding a huge quantity of the elements making up ISIS, as funding some of the more shady mosques in the West that promote extremist interpretations of Islam. The entirety of the Islamic philosophy of ISIS and Al Qaeda has its roots in Saudi Wahhabiism.

They’re not concerned about terrorists, they just want to watch the West collapse. It’s genius soft relations – indirectly encourage others to become threats to the west, watch as the west consumes itself with hard right anti-Islamic hatred to create a self-perpetuating cycle of hatred on both sides, and eventually they have what they wanted all along, which is the whole of Islam radicalised and the West completely crippled.

Anonymous

In answer to your questions again, I state, what is the evidence of his statement… yes Saudi Arabia is not taking refugees, but I believe the greater question to be asked it why?

I suspect it is because it is not in their interest both globally and financially to be seen taking in the refugees…

However I counter with the question who is funding ISIS… as they seem to be fairly well-funded? I highly suspect it is Trump?

And lets go with the premise that Trump did have such a conversation (conveniently) before he then unleashed his latest populist rhetoric… Why would they agree with him… and why didn’t he parade such people in front of the cameras?

It is my opinion that he (as he has been found to do in the past) just spews any and everything that he feels will grant him cover for his bombastic statements and views… regardless if it is true or even what he truly believes…

Pantman

Firstly, 100,000 people singing a petition…

I want to see this massed choir, that’s got to be a world record!

(5)(1)

Anonymous

Most liberal countries (the U.S. and the EU are a good sampling) allow and even encourage restrictions on freedom of expression as necessary in a democratic country- a clear boundary has been drawn between hate speech likely to incite and reasoned, substantiated argument and Trump’s dismissal of fact checkers pointing out his flagrant lies would arguably place him within the former category.

My issue with Trump is the leeway and extensive platforms that’s been given to hearing out his views likely due to his money and influence where they would have been denigrated ages ago in someone less powerful and wealthy.

(1)(0)

MalcolmX'sMum

Just a question – isn’t making inflammatory public speeches tantamount to inciting racial hatred? You can’t deny that his speech was inflammatory by virtue of its reference to a particular group of people.

(6)(5)

hello

Christianity and Islam are religions, not races. Dangerous ideologies can be challenged, it does not mean the person challenging is a racist. Arguably xenophobic, but in this case it is statistically proven.

(6)(5)

Anonymous

Incitement to religious hatred is also illegal.

(9)(0)

Anonymous

it is not incitement, it is simply pointing out the danger of Sharia and the current beliefs held by potential immigrants.

Anonymous

‘…simply pointing out’. A bit reductive, no? A man who has designs of being at the helm of the free world does not ‘simply point out’. In the point of whether or not his remarks could incite racial hatred, just ask the Pentagon.

Anonymous

Moot point.

Post-Trump, ask any south-asian-looking person with a beard whether the matter is racial or religious.

Anonymous

You can argue that, that is your right.

However, it is entirely possible for there to be an agenda behind his words. He may not be inciting hatred in that he is not specifically saying something to the tune of “let’s purge our land of Muslims” however, his words are intended to play on the fears of those in his audience and underline the feeling of divide.

Anonymous

Why would there be outrage at stop the war?

(0)(0)

Anonymous

Freedom o’speech, man!

(8)(7)

Anonymous

With a Scottish mother Donald Trump is unfortunately a British citizen by right so presumably cannot be banned from the UK. Thoughts?

(3)(6)

Anonymous

Fortunately he isn’t a British citizen by right, despite having a Scottish mother.

(1)(0)

Daniel Olive

As far as I can see, he isn’t entitled to British citizenship. His mother was born in the UK and was British, which would be sufficient after 1983, but before that only men could transmit British citizenship. As he had US citizenship we could deprive him of British nationality anyway in all or almost all circumstances in which we could make an exclusion order, so it doesn’t really matter.

(0)(0)

Boh Dear

The man makes a statement that only just falls short of saying “All Muslims are terrorists”. People seem to think this can be justified because it’s a ‘proposed policy’?!

I don’t agree he should be banned but you can’t make discriminatory statements and expect to hide behind some twisted concept of free speech. It’s ‘freedom of expression’ not ‘freedom of oppression’.

(5)(3)

Not Amused

The man didn’t say the thing that you didn’t say he said.

He proposed a policy. I don’t need to get in to the merits of the specific policy. I just need to apply the current law. Trusting (courageously) LC to be the source of that law for me, as that law appears drafted, I do not see how he has incited community violence or terrorist acts.

Of course we could ban him on other legal grounds. But I think a law worded “we will ban anyone who irritates a small amount of vocal left wingers” might raise human rights concerns.

This is very similar to the ‘right not to be offended’ argument. He’s a very silly man. He might be president of the free world – scary. He’s irritated you. But no that doesn’t mean you can just ban him. And as I said – hate speech from the left is being glibly ignored.

(4)(2)

Boh Dear

“I don’t need to get in to the merits of the specific policy” – that’s because there are none.

If he doesn’t see all Muslims as terrorists then why does he want to ban them all? Why not just ban the ones with terrorist links/sympathies? When exactly would the ban be lifted i.e. what counts as figuring out ‘what is going on’?

Hardly have to be left-wing to be offended – GOP members and DC being key examples here (not that I think political leaning is relevant – see below). I’m personally not offended – nothing happens when you’re offended anyway. I can see how others i.e. 1.6bn Muslims might be offended. I find Donald Trump irritating/annoying because of his embodiment of knee-jerk extreme reactions such as this which are only rational on a very weak specious level.

Your point about left-wing hate speech it totally irrelevant here. One man’s act is not void because someone somewhere else has supposedly done something similar without repercussions. It also shows how political leanings can affect rational decision making – what relevance is it which way someone leans?

(1)(0)

Not Amused

“If he doesn’t see all Muslims as terrorists then why does he want to ban them all?”

We’ve not had thought crime since the 1534 Treason Act … He didn’t say all Muslims were terrorists, I don’t think it is right to try to argue he did.

I am also very concerned at a form of faux outrage (not from you, but from the press). Sometimes I do feel that the Guardian acts like a bad influence in a school playground fight. Deliberately misinterpreting what is said, over dramatizing issues, seeking out division and effectively pointing at the wider community and saying “oo he said you are all evil, what are you gonna do about it? huh? huh? You gonna take that?”. It seems unnecessarily polarising to me at a time when moderate muslims and normal people need to come together.

Trump is an idiot. Idiocy is not a crime. Nothing I can see in what was actually said breaks the law. Changing the law to make it catch comments like Trumps would be a dangerous development to my mind. Trump and ISIS are as bad as each other. Normal people need to work together to live in peace – we share a world with these crazies.

(1)(2)

Anonymous

I agree with you in regard to the faux outrage by the press… however we disagree when it comes to what he meant in his carefully crafted phrasing…
As you know, in law “inferences can be drawn”… and I do not think it objectionable the inference drawn by Boh Dear… especially considering the sector of the community to which he is pandering… and the source itself.

He could have said ban all extreme muslim believers… but he didn’t… instead he said ban all muslims from entering into the country… that is a blanket statement, which matches the sentiment of many uninformed people in the US who view this issue in very “black and white” terms denoted by “Islam is bad and evil”… therefore all muslims are “bad and evil”

His statement is not happenstance and it is therefore subject (IMHO) to inference.

Not Amused

“especially considering the sector of the community to which he is pandering… and the source itself.”

I think that is a very dangerous road to go down (and I would be confident that the judiciary would agree with me were a case ever brought).

Imagine that someone different had said it, is it inciting hatred and violence then? Did the man (whoever he was) who suggested we intern all Germans during WW2 incite hatred and violence during WW2?

It just seems to me that people don’t like the man, so they want him convicted. I don’t like the man, but I would be extremely wary of advancing any law we have to encapsulate this form of words.

Anonymous

“Imagine that someone different had said it…” However someone else didn’t say it… he did…

Further to your point of the judiciary agreeing with you… that might be the case… however as is the mantra from the judiciary… “All cases fall on their particular facts”… considering his historical rhetoric, and the timing of such rhetoric and inflammatory statements… his case could be considered distinct and separate from “someone different”.

I don’t like the man (clearly), but do I think he should be convicted… I don’t know, but do I think he should be held accountable for what he says and the reason (by inference based on the circumstances) why he is saying it… Yes.. just as I would and you would… whatever that entails…

Boh Dear

Rightly or wrongly we interned Germans because we were at war with Germany. We made it a crime to trade with German countries because we were at war with Germany. It was, with hindsight, extreme and wouldn’t be necessary today due to enhanced state security.

We are not at war with Islam or Muslims. We are, and I use this term loosely, ‘at war’ with terrorist organisations which attempt to derive their legitimacy from Islam. The two scenarios are beyond comparison.

Anonymous

Surely at this stage it has been established that Trump is a bit of a fool whose perceived support derives solely from media attention to his degenerate statements.

In Northern Ireland we have our own Trump called Willie Frazier. A man who says silly things but nobody pays serious attention because we are confident he will never access the levers of power.

The point at which we begin to worry about Trump is if he is endorsed by American voters and becomes President. Let democracy run its course here, that is what it is for. Then and only then, can we start giving this insignificant pest attention.

(7)(1)

Anonymous

Pumpy trumpy getteth his sweet candy ass kicked by 100,000 British Muslims with an online presence.

(1)(1)

Anonymous

As the petition makes clear, this is about consistent and fair application of the Home Secretary’s power to ban visitors. She banned Zakir Naik and Pamela Geller. It would be absolutely right and fair to ban Trump too. Personally I am not in favour of bans, but if it is to be done at all, it should be done consistently.

(2)(0)

Trump/Cruz 2016

Looool, look at you little sharts squeal!

You can ban him, belittle him, criticise him, name-call him and mock him all you want dear Brits, but the truth is that once all this jihadist shit will hit the proverbial fan (courtesy of Frau Merkel & the Politically Correct Brigade), you’re gonna come squirming to us Americans for help, as you’ve done more than twice in the last 100 years.

Trump frankly doesn’t give two fucks whether some tiny, overcrowded and diminished island that used to be an empire allows a petition to float around. He’s gonna smash this election and you’re gonna reap the Islamist whirlwind that you and Western Europe had so gleefully sown by taking all that filth in.

As they say: get on the Trump Train or get run over by it.

#letsmakeamericagreatagain #trumpcruz2016

(8)(3)

Anonymous

Is it Niteowl?

(0)(0)

Gemma

I signed the petition for Trump to be banned from the UK because he is playing into Daesh’s hands with his suggestion that the US stops all Muslim immigration temporarily. It smacks too much of the Nazi regime albeit this time it’s Muslims who are targeted. Where will that lead to? Right into Daesh’s hands. I don’t doubt for a second that Daesh’s goal is to have the majority or all Muslims living in the lands they control, under their rule. In other words I consider him, and others like him, to be a threat to our national security, however indirectly.

(3)(0)

Trump/Cruz 2016

This post has been removed because it breaches Legal Cheek’s comments policy.

(0)(0)

Boh Dear

Obvious Troll is obvious.

(1)(0)

The Trump Truck

Obvious libtard is obvious. Go hug Corbyn and fuck off.

(1)(1)

Invincible Irwin

Congrats on curtailing this person’s opinion LegalTurd. It’s nice to see freedom of expression is alive and well in 21st century Britain.

(2)(0)

T

Mr Trump’s comments are extreme when taken out of context. His anti Muslim comments were made in Idaho a few days after mass killings in the US. However, this is a good publicity stunt for Trump and he can afford to say whatever he likes

(0)(1)

MoWasAPerv

Many races and religions have made their home in these islands.

Very few have had significant numbers of their populations make it abundantly clear that their aim is to change the government and religion of the country to suit their own, rather than asimilate.

Keeping others from objecting protects the extremists.

(0)(0)

Disgusting of Tonbridge Swells

We in the west weren’t all that different until a short time ago.

For example, in the UK:

– Child marriage permitted until 1885 (age of consent 13).

– No votes for women on equal terms with men until 1928.

– No pay equality for women until 1970.

– Judicial flogging last used in 1947.

– Judicial execution last used in 1964.

– Marital rape permitted until 1991.

And in France it’s even worse:

– Last PUBLIC beheading 1939

– Last use of guillotine 1977.

(2)(1)

Disgusting of Tonbridge Swells

Forgot to mention:

Homosexuality illegal and punished in law in:

England and Wales until 1967
Scotland until 1980
N. Ireland until 1982
Rep. Ireland until 1993

Some US states: still technically illegal, as anti-gay laws are still on the statute books. Symbolic only though as the Supreme Court has struck down the state laws and permitted gay marriage throughout the USA. Last prosecutors for adult homosexuality: 2003!

(0)(0)

Daniel Olive

I’m inclined to think he doesn’t meet the test for exclusion because Britons just find him silly. We may have many flaws in our national character, but we just find people like him silly. It’s one of the reasons we didn’t really have many fascists, they just looked ridiculous to us.

He’s too absurd to put anyone up to doing anything, and therefore doesn’t pose the necessary threat to be excluded.

(0)(0)

Not Amused

Fascists don’t just look ridiculous to us, they are ridiculous. Indeed all authoritarians and all extremists are ridiculous.

Our best defence against communism and fascism was always our sense of humour.

(0)(0)

Daniel Olive

If you really want to exclude him, you could try excluding him as more or less a known criminal. People don’t from from 1-A (fully fit for all military service) to 4-F (not fit for any military service), with heel spurs in both feet, then one foot, but they can’t remember which, during a draft, without corrupting a public official.

(0)(0)

Anonymous

I can’t believe we are wasting Parliamentary time on this fool!

(0)(0)

chumpawumpa

If you agree with Trump you are lolersome idiot. Probably a racist too.

If you want to ban him from the country you are also an idiot.

The best way to defeat Trump is to let him speak, the more he says the more of an idiot he appears to be and the more idiotic those who support him.

(1)(0)

Anonymous

Trump’s mother was born in Scotland – that makes him a British Citizen by descent.

He can’t be banned.

Pointless petition.

(0)(1)

Lord Lyle of the Isles

Nice to see some legal points here. and some people who are actually lawyers. if his mum is British he is British by descent and can’t be banned. he would need to apply for British citizenship and all that.

petitions have no purpose or function at Law.

Can LC please remove the non lawyers? it’s so tedious to go through their span span

(0)(1)

Ali G

Snobbybastaaaaaad!!!!!

(0)(0)

Anonymous

It all goes back to people’s right to be heard, that is the purpose of petitions to allow the voice of the public to be heard and the 100,00 and 10,000 limits for certain actions were put in place as a reasonable amount of people had to sign for such an action to be carried out. 100,000 has been passed and this may be debated in parliament 10,000 and the government has to act the petition has now got to just over 500,000 at last check maybe more, if it quickly passes 10,000 the government would have to seriously consider putting a bill through which may pass before the government breaks, depending on how long it takes, and regardless of whether he becomes president. His title doesn’t excuse him from our legal system if he is banned, he is banned. My only thought is that it may look bad on American – England ties to ban if he does become president as we would be banning their leader, mentioning our law he would have the right to
defend himself and appear before his peers to clerify his position and be heard, before being condemned for his actions.

(0)(1)

Trevor Oakley

Apparently, people are not discussing the basic fact that what Trump said is widely supported in the United States.

(0)(0)

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