An Egyptian NHS doctor who mocked Israeli festival-goers for fleeing Hamas gunmen on Oct 7 has won a legal challenge against deportation.
An immigration tribunal judge backed Dr Mennah Elwan in her claim that James Cleverly, the home secretary at the time, was wrong to cancel her leave to remain in the UK after ruling that her presence was “not conducive to the public good”.
It followed what Stephen Davies, an upper tribunal judge, said were three “shocking and inexcusable” posts on X.
He agreed with Mr Cleverly that 34-year-old Dr Elwan had supported, justified and glorified the terrorist attacks by Hamas. He also accused her of “gloating” over the success of the attacks in which 364 Israelis were killed.
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Dr Elwan, a neurology specialist, had reposted harrowing footage of Israelis running from gunmen at a music festival and written that “if it was your home, you would stay and fight”.
However, the judge quashed the expulsion decision on the basis that it was not “reasonable or proportionate” and breached her rights under both the European Convention on Human Rights (ECHR) and common law.
He said Mr Cleverly should have had “proper regard” to the “short-lived and one-off nature” of the posts, which were quickly taken down, and her previous “blameless” record during her seven years in the UK.
He asked Yvette Cooper, the Home Secretary, to “take the decision afresh” on whether to cancel Dr Elwan’s right to remain. However, he rejected her appeal against the decision to refuse her indefinite leave to remain in the UK.
Dr Elwan was working for an NHS trust in Liverpool, with the right to remain as a skilled worker until 2027, when she posted three times on X on the evening of Oct 7.
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The first post, at 6.52pm, of a picture of fleeing Israeli festival-goers, said: “If it was ur home, u would stay and fight. U wouldn’t just run away.” It was accompanied by a smiling emoji.
A second post, three hours later, said: “Israel was never a country. They illegally occupied Palestine. Would u support Russia invading Ukraine? Israel kill Palestinians everyday, didn’t see anyone caring… Also there are no civilians in Israel.”
A third, responding to a tweet by Rishi Sunak condemning the attacks, said: “Just take all the Israelis to UK away from terrorist Palestine [emojis] a win for everyone, no?”
The judge said: “The combination of the reposting of the video, the barely concealed sneer of cowardice against unarmed civilians seeking to flee the attack, and the smiling face emoji clearly expressing Dr Elwan’s satisfaction at what had happened, convey the clear message that the attack by Hamas on unarmed Israeli citizens within Israel was a matter for celebration and, thus, amounted to expressions of support and justification for, and indeed glorification of, Hamas terrorist violence.”
The judge said Dr Elwan’s second tweet was a “clear message… that no-one should care about the Israeli citizens killed in the Hamas attack, because no one living in Israel could be considered as a citizen as opposed to a member of an illegally occupying army”.
‘Shocking and inexcusable’
The judge said all the tweets, including the third, were in part “protected expressions of political opinion”, but that they all “supported, justified and even glorified terrorist violence by Hamas”.
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He said: “The content and the timing of the offending parts of the posts was shocking and inexcusable and, frankly, involved gloating in the success of the Hamas terrorist attack against Israeli civilians.”
The Home Office told Dr Elwan her tweets merited expulsion “on the basis they seek to justify terrorist violence and/or foster hatred which might lead to inter-community violence”.
Dr Elwan denied the accusations, arguing the tweets were protected under the right to free speech in Article 10 of the ECHR. Her lawyer argued: “The tweets are not support for terrorism but protected political speech of a strong, partisan nature that comment on the wider political context.”
The judge criticised her for not apologising despite taking down the tweets and making her X account private.
However, he said: “To be balanced against the factors identified above, the [Home Office] also needed to have proper regard to the short-lived and one-off nature of that conduct, in the context of a lengthy and overwhelmingly positive and otherwise blameless length of permitted leave within the UK.”
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The judge said that instead of expulsion, “the reasonable and proportionate reaction” would have been to allow her to remain and give her a “clear warning that her posts were unacceptable”.
The warning should have also included telling Dr Elwan that she would face deportation if she engaged in further conduct, he added. He said this “proportionate” alternative option did not appear even to have been considered by the Home Office, which he judged was an error of law.
He said current UK laws adopt an “all or nothing approach”, which meant the Home Office could not be flexible in its sanction of Dr Elwan.
The decision was quashed, and the Home Office will re-examine the case. Chris Philp, the shadow home secretary, urged it to challenge the decision and expel Dr Elwan, adding: “Celebrating and laughing at the victims of the murders, rapes and kidnapping by the Hamas terrorists on October 7 is sickening.
“People who think these attacks were funny have no place in the UK and, if not citizens, should be kicked out.
“Once again, we see the ECHR being abused to allow this person to stay in the UK. Apparently ECHR rights now extend to laughing at murder and rape victims. The judge has required Yvette Cooper to take the decision again – we will now find out whose side she is on.”
Mr Cleverly said he stood by his decision and urged Ms Cooper to stand firm and expel Dr Elwan.
He told The Telegraph: “I stand by the decision I made. Celebrating murder, championing the vile acts of a terrorist organisation, and victim blaming, all tell me this is a person who does not share our country’s values and does not deserve our hospitality.
“The Home Secretary should stand firm and have this person removed for our country.”
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