Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 20 - 39)




20.  What was put to us the other day was that there are people seeking entry to the country upon whom there is intelligence information that they have been involved in one way or another with terrorism. The port authorities use the right to say no, they will not admit the person, at which point they are trumped by that individual claiming asylum. That is the problem they are seeking to address.

  (John Wadham) I am sure that happens, but we say that there is a mechanism and the mechanism is that they will then have to claim their right in SIAC and SIAC can make a decision and then they can be sent out of the country, subject to Article 3 provision.

21.  The problem is that they cannot be sent out of the country because they are liable to go back to a place where they face torture or even death. That is the problem they are trying to address.

  (John Wadham) If we are identifying that problem, the first thing I say is that the first condition must be that regardless of the allegations against them it cannot be right to send them to a country where they are likely to be killed, tortured or subject to inhuman treatment.

22.  No, everybody is agreed about that.

  (John Wadham) The next question is what you do with this group of people. The first solution seems to me that if there is sufficient evidence, then they should be prosecuted in this country, or prosecuted in another country.

23.  There is not sufficient evidence for that, that is the suggestion.

  (John Wadham) If there is not sufficient evidence for that —

24.  Or they may have committed a crime in another country but not this one.

  (John Wadham) Obviously if that other country protects their fair trial rights then they could be extradited to that other country. Assuming there is a small group of people who cannot be extradited to countries where they can have a fair trial, then what seems to be being suggested by the Government and in this Bill is that we can somehow avoid the usual presumption of innocence which will apply to British citizens and that because these people are foreigners we can lock them up for indefinite periods. The reason that the Government can get away with that is because of the procedures which exist in the Immigration Act. We say that the foreigners who are in this country should be treated no differently from British citizens in the context of indefinite detention, in the context of internment, in the context of a presumption of innocence. Otherwise it seems to me that we are suggesting that somehow people who just do not happen to have obtained British citizenship have fundamentally fewer rights than others.

25.  You would let that category of people in.

  (John Wadham) We have to let them in. There are questions as to what other mechanisms there might be to ensure that they do not commit atrocities here. The answer to that seems to be supervision, intelligence and all of the panoply the Security Services have. Otherwise I would ask the question of the Government: what do you do if somebody has been involved in terrorism in the past and it is suspected is going to be involved in terrorism in the future and has foreign origins but happens to have got British citizenship. You cannot use these mechanisms. The next debate we are going to have is what to do about British citizens in those circumstances. The idea that we are going to detain people without trial, on the basis of mere suspicion, and that suspicion might not turn out to be true, is a problem. Some of these people—who knows whether it is going to be one or ten—may be innocent and that is our problem.

26.  It could be better than mere suspicion. It may be people known to have been involved in terrorism in countries you do not want to send them back to and you would not wish to send them back to because they face death or torture there.

  (John Wadham) It could be.

27.  There are such people, are there not?

  (John Wadham) I accept that there are such people, but I also say to this Committee and to the Government that there are people in this country that the Security Services and the police know are going to commit other offences. Some of those offences may be horrific and some of those offences may be terrorist related offences. Because those people are British citizens, they cannot take steps. To say we can treat foreigners in a completely different way from the way we treat British citizens, in the context of the presumption of innocence, is fundamentally wrong.
  (Nicola Rogers) One very short point on committing offences outside. It is also within the realms of the Terrorism Act 2000 for a person to be convicted for inciting terrorist offences outside the UK. So we are not just dealing with people who have committed offences within the UK, it is also people who have incited violence outside the UK. That category of person is already covered.

Mr Malins

28.  How would you deal with this problem or how would you advise the Government to deal with this problem? A foreign national arrives at a port, claims asylum, is thought by the authorities to be involved in plotting terrorism either abroad or here. One foreign national arrives or 41 or 141. Our procedures put them through the Special Immigration Appeal. They then lose all the way but then bring into play Article 3; all of them. Sri Lanka is a country where nobody has been removed to. They have all been granted exceptional leave. Is Article 3 not the killer point? How do you deal with it?

  (Rick Scannell) Article 3 is pivotal. May I correct one thing? The Article 3 claim would have to be made as part of the asylum claim, when the person says he wants to claim asylum. The idea that this trumps it, is not strictly true. It does not prevent them being treated within the present regime in the context of SIAC.

29.  How do you deal with it though?

  (Rick Scannell) You have to determine and assess the claim. Since everyone accepts that you do not return somebody to face treatment contrary to Article 3 and that is not in issue between us at all, since that is the —

30.  May I query that? I do not say it is an issue between us but I leave the question open. Are you actually saying that when anybody comes from Sri Lanka, Somalia, Afghanistan, wherever, if the Article 3 point is thought to be good, namely that they will return to some sort of inhuman treatment, it follows as a matter of practice that they must stay here?

  (Rick Scannell) It follows that they cannot be removed indeed to face treatment which would put us in breach of Article 3. That of course follows.

31.  Can the Government overcome that?

  (Rick Scannell) That is the principle. It cannot. I would say that in principle it cannot and should not, nor is it seeking to do because it is committed to the protection of people's fundamental human rights. One of the most fundamental human rights is that enshrined in Article 3.
  (Nicola Rogers) It has to be looked at in the context of the Convention as a whole and the European Convention on Human Rights as a whole requires that contracting states secure the rights of all persons on their territory. That means neither can they torture nor subject them to inhuman or degrading treatment here, nor can they send them somewhere else.

32.  Do we lock them up then or let them plot?

  (Nicola Rogers) We use surveillance mechanisms, if that is what is required, to find the information we need in order to prosecute them under the very wide ranging powers under the Terrorism Act.


33.  If there is already evidence that they have been involved in terrorism abroad, they may come here and actually, since they know they are being looked at, not get involved in organising terrorism here for a considerable time.

  (Nicola Rogers) I am not sure I am following.

34.  You are saying use surveillance methods and you will pick up the evidence sooner or later to put them away. I am saying that since these people will know they are being watched, they will be very cautious. In fact we can think of one or two examples who have got very cautious in recent years.

  (Nicola Rogers) If there is sufficient evidence on which to expel subject to the Article 3 point, there surely ought to be sufficient evidence on which to prosecute under the powers of the Terrorism Act which allows not just for activities here—you do not have to commit any activities here—but it can be in respect of activities you carried out abroad.

35.  Right. You are an Algerian. Intelligence tells us and perhaps you even accept that you have been in a training camp in Afghanistan. You arrive here and ask for entry. What should the British authorities do?

  (Rick Scannell) There will likely be a certification excluding the person.

36.  At which point you play your next card. You claim asylum.

  (Rick Scannell) That claim would have to be considered. The same material would be considered whether it was a refugee convention claim or whether it was an Article 3 claim. The claim would be considered and an assessment would have to be made as to whether removal should take place.

37.  In the meantime where is this individual? Do we allow him to wander the country?

  (Rick Scannell) There are ample powers to detain people in respect of whom it is thought that not to do so would put the UK at danger in any shape or form. There are very, very wide detention powers under the Immigration Act.
  (John Wadham) Nobody here is suggesting that in those circumstances the individuals you have mentioned should necessarily obtain bail. There may be a good case in any particular case for them to be detained while these investigations are going on, while the process is going on.

38.  Okay. The asylum case is rejected. Then what? You cannot deport them to Algeria or Afghanistan. What do you do next?

  (John Wadham) The answer is that certain groups of these people can be prosecuted for offences they have committed in this country. A second group of people can be prosecuted in this country for offences they committed in other countries. That is what the Terrorism Act says and that is what the previous 1998 measures did. Lastly, there does remain a category of people who cannot be prosecuted for offences. If they are released, we say they can be watched, so at least the British public is protected from them, so they will not be able to commit offences. The question is —

39.  Do you see the problem the authorities are trying to deal with?

  (John Wadham) I do see this, but the problem —

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