APPENDIX 2
Memorandum submitted by Amnesty International
1. In the wake of the attacks of 11 September
2001 in the United States, on 15 October 2001 the Home Secretary
announced a package of emergency measures which will be placed
before Parliament in the near future.
2. UK emergency legislation has been of
grave concern to Amnesty International since the 1980s. The organisation
has documented how provisions of such legislation consistently
facilitated serious abuses of human rights. Amnesty International
is concerned that some of the measures proposed by the Home Secretary
may contravene internationally recognised human rights standards.
Derogation
3. The Government is seeking to derogate
from the European Convention on the Protection of Fundamental
Freedoms and Human Rights (ECHR) in order to permit the indefinite
detention of foreign nationals, who allegedly pose a threat to
national security and whom the Government is unable to remove
or deport.
4. Amnesty International notes that on 15
October the Home Secretary stated that "[t]here is no immediate
intelligence pointing to a specific threat to the United Kingdom".
5. In view of this statement, Amnesty International
calls on the Government to give precise details of:
— why it believes that there is a public
emergency threatening the life of the nation in the UK;
— why it believes that it needs the
extraordinary powers, which violate international human rights
law, leading to a derogation;
— whether those powers are strictly
required by the exigencies of the situation.
6. The UN Human Rights Committee expressed
concern on 2 November 2001 about the Government's proposals to
derogate and to adopt "legislative measures which may have
potentially far-reaching effects on rights guaranteed in the Covenant"
and urged the Government to "ensure that any measures it
undertakes in this regard are in full compliance with the provisions
of the Covenant ... ".1
Indefinite detention
7. Amnesty International is opposed to states
detaining people who are considered to be a threat to national
security unless:
— the people are charged with, and
prosecuted for, recognisable criminal offences without delay;
— action is being taken to deport within
a reasonable period—there must be a realistic possibility
of deportation being effected.
8. Amnesty International believes that it
is a violation of fundamental human rights to detain people who
the authorities do not intend to prosecute and whom they cannot
deport. People should be charged with a recognisable criminal
offence within a reasonable period or released.
9. The government has to date not provided
evidence demonstrating that any inadequacies which may exist in
current criminal laws cannot be rectified to permit prosecution
of people whose conduct threatens the UK or for the prosecution
of extra-territorial crimes.
10. Amnesty International is concerned that
people will be categorised as a national security risk or a "terrorist",
the effect of which is tantamount to a criminal charge, on the
basis of secret and therefore possibly inaccurate or misinterpreted
information. This occurred during the Gulf War, when about 90
Arab nationals were detained pending deportation on national security
grounds. Amnesty International considered many of them to be possible
prisoners of conscience.
11. If the Government proceeds with the
derogation and the introduction of the proposed measure, then
the legislation must contain safeguards that comply with international
standards. Such safeguards should include:
— the grounds for detention must be
specifically related to the emergency situation;
— the detainees should be treated in
compliance with all human rights standards ;2
— the detainees should be entitled
to see and challenge all the evidence used to determine whether
they are "national security risks" ;3
— the emergency law should be temporary,
subject to renewal by Parliament;
— the Government should be required
to publish regularly information about the application of the
law, eg how many people are detained and the places of detention.
Exclusion from protection under the UN Refugee
Convention
12. The Home Secretary stated that he was
"looking to take power to deny substantive asylum claims
to those who were suspected of terrorist associations".
13. "Acts of terrorism" are not
expressly included as one of the recognised grounds for exclusion
from refugee status under the 1951 Convention relating to the
Status of Refugees (UN Refugee Convention). However, such acts
are grounds for exclusion when they constitute crimes against
peace, war crimes, crimes against humanity, serious non-political
crimes outside the country of refuge, or acts contrary to the
purposes and principles of the United Nations.
14. Nobody should be prevented from lodging
an asylum application. Amnesty International believes that a determination
to exclude an individual from refugee status in application of
Article 1(F) of the UN Refugee Convention should only be made
after full consideration of the claim in a fair and satisfactory
procedure. A preliminary consideration that someone might fall
under the provisions of the exclusion clauses should not hinder
the full examination of the claim for asylum. No one should be
forcibly removed without having had their individual need for
protection assessed. In view of the serious consequences of determining
an individual to be excluded from refugee protection, the procedure
should comply with all the safeguards provided in human rights
and refugee law.4
15. The issue of exclusion has been the
subject of extensive consultation. As part of the UNHCR's ongoing
Global Consultations on International Protection, a meeting of
experts took place earlier this year and presented some summary
conclusions on the issue of exclusion. One of the clear recommendations
coming out of this meeting was the importance of taking a "holistic
approach" to refugee status determination, and in this regard
determining the inclusion elements of refugee protection before
exclusion elements.5
November 2001
Endnotes
1. In addition to derogating from Article
5 of the ECHR, the Government may also have to derogate from Article
9 of the International Covenant on Civil and Political Rights
(ICCPR). The ICCPR, under Article 4, similarly provides that "in
time of public emergency which threatens the life of the nation
and the existence of which is officially proclaimed, the States
Parties to the present Covenant may take measures derogating from
their obligations under the present Covenant to the extent strictly
required by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations under
international law..."
2. The following safeguards apply to detained
people, who:
— should be informed immediately of
the reasons for the detention and be notified of their rights,
including right of prompt access to and assistance of a lawyer,
assigned free of charge if necessary; right to communicate and
receive visits; right to inform family of detention and place
of confinement;
— should be brought promptly before
a judicial authority to determine the lawfulness of and necessity
for the detention and there should be regular periodic reviews
thereafter;
— should be entitled to challenge their
detention [habeas corpus];
— should not be detained with people
convicted of crimes;
— should have effective judicial remedies
for those detained, including full reparation for arbitrary detention
and other human rights violations;
— should be treated in compliance with
all human rights standards for conditions of detention.
3. Amnesty International has noted with
concern that the statute and rules permit the Special Immigration
Appeals Commission (SIAC) to receive secret evidence and for the
proceedings to take place without the potential deportee or their
counsel being provided with the full reasons for the decision
to deport or exclude. In addition, these rules permit SIAC to
hold all or part of the proceedings in secret, excluding the potential
deportee or their counsel. If such in camera proceedings are held,
an advocate is appointed to represent the interests of the potential
deportee. The advocate, however, may not communicate with the
deportee or their counsel, after they have been provided with
information about the case, without leave from SIAC.
4. Notably that the question of exclusion
is not used to determine admissiblity to the asylum procedure,
to be informed that exclusion is under consideration and to have
the right to be informed of the evidence, to rebut the evidence
and to appeal against a decision to exclude on the above grounds.
5. The reasons for the inclusion before
exclusion were:
— Exclusion before inclusion risks
criminalising refugees;
— Exclusion is exceptional and it is
not appropriate to consider an exception first;
— Non-inclusion, without having to
address the question of exclusion, is possible in a number of
cases, thereby avoiding complex issues;
— Inclusion first enables consideration
to be given to protection obligations to family members;
— Inclusion before exclusion allows
proper distinction to be drawn between prosecution and persecution;
— Textually, the 1951 Convention would
appear to provide more clearly for inclusion before exclusion,
such an interpretation being consistent in particular with the
language of Article 1F(b);
— Interviews which look at the whole
refugee definition allows for information to be collected more
broadly and accurately.
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