Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 120 - 137)




120.  Yes; most certainly. Sticking with fingerprints for a moment, I understand the position is that fingerprints in immigration and asylum cases have to be destroyed after the case is dealt with. That is the existing position. The plan is to keep them for up to ten years in order to improve the identification of individuals. Are you saying you are against that or for it?

  (Nicola Rogers) I am against it in the same way as data being kept for a very long time. If a person came in ten years ago and has been recognised as a refugee and has been living here for ten years, I can see no reason why a fingerprint would need to be kept for that length of time. However, I do accept that there may be circumstances in which fingerprints should be kept in respect of persons the Secretary of State is worried about. Perhaps he should have to have a system by which he specifically has to apply for the keeping of that fingerprint. For instance, if it were the sort of case we have talked about today, where a person has been allowed to remain but the Secretary of State were not happy about that and he had brought it to the attention of SIAC that the person had ended up remaining, then perhaps there could be a procedure whereby he applied if he wanted to keep this fingerprint.

121.  I guess what they are worried about is people coming back on multiple identities, which does happen in the world of terrorism. I see you raise your eyebrows.

  (Rick Scannell) No, I was acknowledging that.
  (Nicola Rogers) We do acknowledge the problem.

Mr Prosser

122.  I thought that part and parcel of the Dublin convention was that asylum seekers coming in are automatically fingerprinted and that becomes part of the international/European Union fingerprint databank.

  (Nicola Rogers) The Eurodac convention requires that member states fingerprint. That is said to be going to facilitate the Dublin convention.

123.  Are they kept on record?

  (Nicola Rogers) Yes, they are kept.
  (John Wadham) What we are suggesting is that once the case has been dealt with they should be destroyed unless there is some suspicion and that suspicion should be justified to a court or someone else in a particular circumstance.


124.  To SIAC?

  (John Wadham) Yes; exactly and that may be justified. I would have thought that the vast majority, 90 per cent, 99 per cent of asylum seekers who do obtain asylum or are entitled to stay in this country, probably are not a threat and it would be wrong in principle to keep their fingerprints in the way you would people who have been convicted merely because they have been persecuted in another country.

Mr Prosser

125.  But that is happening now.

  (John Wadham) There is a two stage process. There is collecting the information for fingerprints at the beginning and there is how long those are kept. I am trying to suggest that there should be controls and protections in relation to the length of time that those fingerprints are subsequently kept. For instance in criminal law your fingerprints are taken when you go to the police station, but if you are not convicted or you are not charged they are subsequently destroyed. That is the kind of mechanism I am suggesting should apply generally, except where there is some good reason for that particular individual's fingerprints being kept for a longer period.
  (Rick Scannell) The current obligation is to destroy as soon as reasonably practicable where someone is recognised as a refugee. That is a protection which we would not wish to see diluted.


126.  May I just take you back briefly to the business about the scope for appeals against removal? I am not sure we were talking specifically enough. The Bill proposes to limit the scope of appeal which could lead to an increase in judicial reviews unless removed. Under the Bill SIAC could only cancel the Secretary of State's certification and remit it back to the Secretary of State. That is the change. Or they could dismiss the appeal. If somebody appeals against detention, the appeal could be dismissed but all that happens if they uphold the appeal is that it is referred back to the Secretary of State who in the end may have the final decision I suppose.

  (John Wadham) The first question to ask is whether that process is right in principle. I would say that it is not and it probably does not comply with the ruling which started this SIAC process all off, Chahal. The key issue in his case was the right to an effective independent remedy against the decision of the Home Secretary. We would say that the key reason for SIAC to exist is to be able to make decisions overturning the view of the Home Secretary, so that would be wrong in principle and we would say contrary to Article 13 and probably challengeable in the European Court of Human Rights. The second point is if they do limit the appeal in the way suggested, then the courts are very likely to want to open up that process with a judicial review, precisely because it will not comply with Article 13 and the European Convention on Human Rights. If in the legislation the Government tries to shut the door by ousting the jurisdiction of the judicial review, then there will be a battle about that and that matter will go to the House of Lords. It is difficult without seeing the text to know which way that would go, but I am sure once it gets to the Strasbourg court, the Strasbourg court would say you have to have a better mechanism than you have suggested. That of course takes five years.
  (Rick Scannell) It sounds also from what you have just said that status determination would be cut out of the appeal process, in other words, the question as to whether the removal would itself engage Article 3 or whether the person is or is not a refugee. If that were right—and I am slightly alarmed to hear the proposal put in that way—it seems to suggest that what is contemplated is only a form of review—we object for reasons which have been given to what would appear to be anticipated—is one which engages with the detention. Going back, there are far more fundamental questions which should be asked first: whether the person is a refugee or whether there would be a risk that if removed to a country such removal would put the UK in breach of its obligations under Article 3. Both those substantive questions are questions in respect of which any removal of appeal rights would be in fundamental contradiction of any proper notion of the rule of law. We would object vehemently to the withdrawal of an appeal in respect of status to determination. That is what SIAC is there to do and that is what it does. One more sentence about that. In the context of the refugee convention, there are already ample powers within that convention to exclude from its application people who are considered to have been involved in acts of terrorism. I am talking in the broadest possible way now. Article 1F deals with exclusion in three discrete circumstances and there is the ability under Articles 32 and 33 in effect to prevent people who are regarded as a danger to the national security of the country being able to enjoy the protection of that convention. Those are all sensitive issues of fact and they would have to be assessed and determined on appeal by SIAC.

127.  Sticking with the refugee convention, that gets you to the point where you reject an application but there is still the question of what you do with them whilst you process that application if you cannot send them back to where they came from.

  (Rick Scannell) Indeed, which then engages with the last question. My concern was that if I understood correctly, what may be proposed is something which cuts out completely the review of the former substantive status determination and that would be something we would have profound concerns about.

Mr Cameron

128.  Our understanding of what is going to be in the Bill is that the Government wants to remove access to judicial review of all SIAC cases. That is our understanding. Can you explain whether there are any other examples where the Government has tried to exempt a series of procedures from judicial review and has it worked?

  (John Wadham) Yes. In our notes we refer to cases such as Anisminic and other cases where the Government in the past has tried to avoid judicial review.


129.  Could you spell that out?

  (John Wadham) It is in our document.

Mr Cameron

130.  Just in case you think we have been slack, I am afraid we only received your memorandum minutes before the meeting, so we have not had time to read it all.

  (John Wadham) Absolutely and that was our fault. A-N-I-S-M-I-N-I-C against the Foreign Compensation Commission and another case involving ex parte Fayed against the Home Secretary. These are different circumstances of course because there will be something fundamental about the decision the Secretary of State is making, which is not just whether compensation is paid—I am not suggesting that is not fundamental—but actually whether somebody is a genuine asylum seeker, whether they are going to be sent back to a country where their Article 3 rights were violated and whether or not they are going to be detained indefinitely, I cannot imagine there are more fundamental questions that those three. In that context the courts will be very concerned to see their jurisdiction ousted and will be looking for ways in which they can provide an independent element, particularly because the European Convention on Human Rights says in Article 13 that there must be an independent element in relation to those decisions.

131.  To a non-lawyer such as myself, your answer to my question is yes, they tried to do it before and no, it does not really work.

  (John Wadham) It only works in some circumstances and the question for the courts will be the nature of the issue for the person, as to whether or not it works or not.
  (Professor Gearty) The judges hate it. It is very hard to construct something that succeeds in avoiding their distaste.


132.  You wanted to make one or two points about the sunset clauses. Who is our sunset clause correspondent?

  (Professor Gearty) I am not sure, but perhaps we all feel that one of the most important elements to this might be to put some kind of time limit on it. The reason for that would be that it would keep the issue alive and there would be a need for reports and it would maintain the sense of the urgency and the importance and one hopes the temporary nature of the crisis that provoked these powers. We see it as a fundamental importance from the point of view of principle to maintain the idea that this is a deviation from the norm.

133.  Would you have an annual review or an annual report to Parliament?

  (Professor Gearty) Yes. Also there are some analogies here with some other areas within the Home Office remit where independent inspectorates and inspectors have really made a difference. We had hoped there might be a truly independent person trusted with the oversight of the exercise of these powers.

Mr Camero

134.  You would not sunset clause the whole thing, would you, just the key parts?

  (John Wadham) We would say: as the prevention of terrorism used to be. There was a five-yearly sunset clause where the legislation fell unless it was completely re-enacted. In addition to that there was a yearly review where if it was not re-enacted—I am not sure what the technical expression is—then it would fall as well. In relation to the yearly process, there was an annual report from a reviewer which reported to Parliament setting out his understanding of the ways in which the Act had been used. I must say that our experience of some of those reviewers in the past has been that they have not been as independent of government as we would like them to have been. We would want to see someone who reviewed these provisions who was respected not just by government but by the likes of us, so we could trust them to delve into the circumstances and difficulties in a way which would mean there was a real challenge to the proposals every year. Then it would be for Parliament, having read their report, to make decisions about whether they re-enacted the legislation.


135.  An annual review reporting back to Parliament and renewal every how often?

  (John Wadham) Five years was selected presumably because each time of the review there would be a new Parliament.

136.  Was the Prevention of Terrorism Act not annual?

  (Professor Gearty) Initially it was only six months. Mr Jenkins, the then Home Secretary, said that he hoped very much not to have to come back and ask for it. So there was an initial enormous reluctance to think of it as other than very, very temporary and that gradually grew and grew until it became an extended period. Here the main purpose would be to flush out which bits they really think are integral to our criminal justice system and are here to stay and which bits they think are reactive to 11 September. We should not just glumly accept that 11 September is here for ever; that would keep the issue alive as to the length. The annual renewal might be an important discipline; an annual renewal which is fed by a report from an independent scrutineer which the whole community can understand.

137.  Good, I am glad we clarified that. Any other points you want to make.

  (Nicola Rogers) The terms of Article 15 and the derogation particularly in respect of one of the most serious questions which would be the indefinite detention require that there is a present threat and that implicitly implies that there ought to be very strict and continuous review of that mechanism, particularly when you are involving yourself in measures which are so crucial to fundamental liberties.

  Chairman: Any other points? In that case the session is closed, though not before I thank you very much for coming, secondly also say to you again that we have a Home Office Minister coming on Wednesday next week. If you have suggestions for questions we ought to be putting to her, and by that time you may have seen the Bill, do not hesitate to get in touch.

  Mr Cameron: It does seem to me that it is very important we look at what is going to be in the Bill and ask what is most related to 11 September, an emergency, and what is least related to 11 September and what is not really an emergency. I should be very interested in your thoughts on that in particular.

  Chairman: The session is closed.

previous page contents

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 19 November 2001