APPENDIX 3
Memorandum submitted by Nicholas Blake
QC
The Proposals:
1. In this submission, I examine three proposals
mooted by the Home Secretary as part of the legislative response
to the events of September 11. These are:
(i) excluding terrorists from consideration
for refugee status;
(ii) removing the power of judicial review
of decisions of the Special Immigration Appeals Commission;
(iii) detaining indefinitely those considered
to be a threat to national security but whom cannot be removed
because of the terms of Art 3 of the ECHR, even if this requires
a derogation from Article 5 of the ECHR.
2. These measures are said to be necessary
to deal with "those suspected of terrorist acts who seek
to misuse our asylum and immigration systems". The difficulty
always in such cases is to distinguish between legitimate use
of rights and the alleged abuse of them, frequently the evidence
of the alleged abuse, is merely the successful and appropriate
reliance on these rights to prevent abuse of power by the executive.
I attach to this submission as Annex 1 a brief outline of the
existing law as the context for this proposals.
Exclusion of Asylum Claims
3. It is important for Parliament to be
satisfied that any new legislative measures do not go beyond the
terms of the Refugee Convention as discussed in the decision of
the House of Lords in T. There are three critical requirements:
(i) before any exclusion of protection is
based on conduct before arrival in the United Kingdom, a person
must be guilty of conduct against the principles of the UN or
serious non-political crime (see Article 1(F). This means that
Rehman criteria of risk to national security are inappropriate.
Membership or support of foreign organisations, even those that
we would now consider terrorist, cannot engage the exclusion clause
by itself. Participation in the planning of atrocities is another
matter altogether.
(ii) Where exclusion is based on activities
in the United Kingdom, the criterion is "danger" to
the community. Again this is very different from and narrower
than reasons to justify deportation. The power to remove on grounds
conducive to the public good: can be exercised in a broad range
of cases: to promote cooperation from friendly governments, to
deter adherence of a particular cause, to anticipate future dangerousness.
The Refugee Convention is only concerned with people who are a
direct threat to the host community and its personal security.
(iii) There must be an effective judicial
scrutiny of this decision. In the former case to determine whether
there are reasonable grounds for the conclusion of guilt; in the
latter to determine whether there is evidence of danger , and
whether there is an effective overall balance between the danger
in question and the legitimate concerns of the family and human
rights of subject. Where such scrutiny touches on sensitive material
it must be done by SIAC.
4. Legislation can thus fast track terrorist
asylum claims, and can allocate them to SIAC, but it cannot remove
them from judicial scrutiny altogether. The essence of the international
obligation is that the executive is not judge and jury in its
own cause, but has to justify its conduct before another responsible
branch of the state.
5. Suggested questions to the Home Office:
(i) Does the UK intend to abide by its Refugee
Convention (RC) obligations?
(ii) Will terrorist asylum claims go to SIAC
for review?
(iii) If not why and how is that consistent
with judicial application of RC?
(iv) What advantage is there in the exclusion
if the Art 3 claim will have to be judicially considered in any
event?
(v) Who is a terrorist for the purpose of
the RC. Is this the same as the Rehman grounds for exclusion?
(vi) Is support of a proscribed organisation
sufficient to deny refugee claims and how can that be consistent
with Article 1 F and the requirement of guilt or commission of
a serious offence?
Judicial review of SIAC
6. At present the proposal seems to be
to abolish the possibility of something that has never been done.
It may be that this heralds a more substantial assault on the
fundamental principles of judicial protection of human rights,
if an alarmist reading of some of the Home Secretary's recent
comments is correct.
7. There should be close examination of
the supposed justification for this proposal. The argument of
delay should be treated with particular caution. Delays in the
asylum system are almost exclusively the product of Home Office
decision making: either it takes years or many months to come
to a decision at all, or that the decision is so defective in
terms of its reasoning, opportunity to engage the issues, or otherwise
that it has to be remitted for reconsideration.
8. The High Court itself strongly discourages
judicial review if there is an alternative remedy, and interlocutory
appeals against decisions of the Immigration Appellate Authority
have nearly always been taken by the Home Office itself. Appellants
are told wait and see how the eventual decision turns out. It
is perhaps of some interest that the three judicial reviews of
the Saville Inquiry into the Bloody Sunday events have been instigated
and/or supported by the Ministry of Defence, who considered that
that distinguished judicial body has given insufficient protection
to soldier witnesses. SIAC cases are likely to involve more immediate
questions of risk to the appellant.
9. The case law is in its infancy and a
great many questions about the disclosure of evidence, procedural
rulings on who must proof what and how, have the greatest importance
on the eventual outcome. It would be premature to exclude all
possibility of judicial review before final decision. The courts
can and must be trusted to police against abuse of this vital
remedy of central importance in regulating the relationship between
citizen and executive according to law.
Detention
10. In reality, it seems that the Home Office
would not wish to derogate if a practical solution could be reached
to the problem of the person who is a genuine danger to the community
(in the Refugee Convention rather than Rehman sense of
the word). It is recognised that SIAC confronted the problem in
Singh.
11. The first question to pursue is why
prosecution under the extensive existing legislation is not a
solution. It is impossible to be a real danger to the community
and not to have committed a criminal offence of one sort or another
even if merely inciting, conspiring, procuring such an offence
or joining or supporting a proscribed organisation. If it claimed
that this is not possible because of sensitivities in the data
available to the security forces, then consideration should be
given to revisiting Lord Lloyd's second conclusion: use of intercept
material in criminal prosecutions. Other western states do it,
and the case law on the ECHR has demonstrated that the admission
of even unlawful surveillance material does not make trials unfair.
12. Lord Lloyd's speech in the House of
Lords in the passage of the 1998 Act remains eloquent and relevant
to this problem. It should also be noted that foreign witnesses
can give evidence on commission without actually coming to the
UK, and extensive protections in terms of anonymity and shielding
visual or voice recognition from the suspect are available. If
there is no surveillance data and no witness willing to testify
even in these circumstances that must be at least a starting point
as to doubt as to dangerousness.
13. The second question, should be within
the civil contest of SIAC itself. The very breadth of the term
terrorism is unhelpful here. The Home Secretary's victory in Rehman
may prove counter productive. Human rights discourse will not
permit the indefinite detention without trial of someone whom
cannot be deported, and whose "dangerousness" justifying
the expulsion itself may be no more than a matter of cautious
executive policy seeking to win friends elsewhere that SIAC is
powerless to review. The contemporary definition of terrorism
or threat to national security can mean everything or nothing,
and does not inform the suspect or the general public of the gravamen
of the allegation. It may mean that a Kurd is sympathetic to the
PKK in Turkey: many if not most Kurds are, similarly Tamils and
the LTTE, Kashmiris and the struggle against Indian occupation,
etc.
14. Is there not a case for a more precise
description of unacceptable conduct that will then be proved on
a civil balance in SIAC with the flexibility in terms of admissible
material. People who are not being expelled, could then be made
subject to a restriction order requiring residence, reporting,
and other conditions that might be appropriate in the bail context.
Even house arrest must be preferable to incarceration. Exclusion
for a period from meetings, or political activities may be consistent
with human rights and Article 16 of the ECHR.
15. Thirdly, instead of exclusions and derogations
there may be a case for extending the authority to detain a person
who is an immediate danger to the host community even though he/she
can not be expelled at present. The trick here is proportionality,
and access to a regular review. Frequently the fact of enforcement
action and the detention during the proceedings has a significant
impact on dangerousness itself. Mr Chahal spent 6½ years
in detention fighting his case, and emerged with all the consequences
of the labels thrown at him during this time. Whatever he was
suspected of doing before this experience, there is no reason
to believe that he was likely to do at the end of it. Disruption
by the threat of expulsion may itself prove effective and cause
a change of heart by the suspect.
16. Where it is not and the lesser alternative
of restricted release is not available, SIAC should have the power
to determine that the suspect be detained for a period not exceeding
12 months for a review of the case, subject to liberty to apply
in the event of a change of circumstances. If the risk has by
then disappeared then removal can proceed. If not a thorough review
of dangerousness, "prosecutability" and the like should
be engaged in. If the problem remains as serious as ever then
a final period of 12 months may be granted. This is likely to
make the maximum time for detention three years in total the equivalent
of a five years sentence and ample to disrupt and deter dangerous
activity.
17. This course would not need derogation
from the Convention. If the intent to remove "if possible"
persisted throughout this period, and there were regular judicial
scrutiny of detention Article 5(1)(f) of the ECHR would be satisfied.
Instead of being an "obstruction" to public safety,
judicial review is an essential safeguard to give effect to it.
November 2001
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