Hasan Piker and Cenk Uygur – What can be done following the cancellation of an ETA?

The Home Office have recently cancelled the ETA for other prominent individuals such as musician Kanye West under the same grounds, preventing him from travelling to the UK for Wireless Festival. Despite the extensive media attention surrounding the cancellation of these individuals’ ETAs, there is confusion over what this actually entails for potential entry to the UK. In this article, we look at how the cancellation of an ETA works in practice, and what options are available if an individual still wants to travel to the UK after their ETA is cancelled.

What is the ETA?

The ETA scheme was first introduced by the Home Office in October 2023 as part of attempts to deliver a more streamlined, digital immigration system. An ETA is advance permission to travel to the UK as a visitor and is required for specified non-visa nationals. These are individuals who do not need a visa to visit the UK.

However, it should be emphasised that the ETA does not replace a visa – it provides the individual with permission to travel to the UK, but they must still obtain permission to enter upon arrival in the country.

Cancellation or refusal of the ETA

An ETA may be either cancelled or refused on suitability grounds, including where the person’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons.

As provided in a Home Office notice, following the cancellation of the ETA, the individual cannot appeal this decision, and they cannot travel to the UK without a visa.

However, the cancellation of an ETA does not mean that an individual cannot apply for a visit visa in order to travel to the UK. 

Applying for a visit visa and Freedom of Expression arguments

The application process for a visit visa is more extensive than the process of applying for an ETA, where the applicant must show that they are a genuine visitor, and they meet the relevant validity and suitability criteria.

In the present situation, where an ETA has already been cancelled as it was deemed that Hasan or Cenk’s presence in the UK would not be conducive to the public good, it may be difficult to convince the Home Office that the suitability grounds are met by the applicants, as the concept of being ‘conducive to the public good’ is ultimately broad and up to the Home Office’s discretion. However, a key benefit of the visit visa application process, as opposed to the ETA application process, is that supporting documents and representations can be submitted to the Home Office. This would allow applicants such as Hasan and Cenk to submit a comprehensive application, supported by detailed representations addressing the factors the Home Office must consider.

A key element that must be considered is whether this represents an infringement on Cenk and Hasan’s freedom of expression, a position taken by Green Party leader Zack Polanski, and by MP Jeremy Corbyn amongst other public figures. In a case that we took to the Upper Tribunal last year, it was confirmed that the right to freedom of expression, enshrined under Article 10 of the ECHR and UK common law, does extend to foreign nationals in the UK, where an individual’s immigration status had been affected by publicly expressed political views. However, what must be noted is that ECHR rights usually only apply to those individuals within its jurisdiction, in this instance the UK (see Article 1 ECHR). This includes added difficulties in arguing that these rights would be extended to individuals looking to visit the UK, who are therefore not necessarily within the jurisdiction at the time of the application.

Freedom of speech issues also engage the freedom to receive information and hear speech, as well as engaging freedom of association at common law and under Article 11 ECHR, as regards meetings and events. In any representations made in support of a visa application, these fundamental rights for those present in the UK who would hear them speak would also be engaged. Thus, people in the UK and to whom human rights protection unambiguously applies are also affected. There is a value on in person meetings even in the electronic age, and political speech at such meetings enjoys special protection.

Therefore in submitting a new application for a visit visa, there is an opportunity to expand on these crucial arguments, and if the application is rejected, look to challenge the decision by way of Judicial Review. This could potentially establish a significant precedent regarding the protected nature of free speech within the Home Office’s immigration system, and the importance of safeguarding this principle generally when it comes to differing political views.

Conclusion 

Although the cancellation of an ETA may appear to block any travel plans for Hasan Piker or Cenk Uygur, the possibility of applying for a visit visa remains open to them, and would allow them to challenge the Home Office’s position on whether their presence in the UK is not conducive to the public good. Irwin Mitchell’s Immigration Team, led by Mandeep Khroud, offers the specialist expertise needed to explore this complicated process, and look at the potential options available following the cancellation of an ETA.