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Select Committee on Home Affairs Appendices to the Minutes of Evidence


APPENDIX 7

Memorandum submitted by the The Immigration Law Practitioners' Association (ILPA)

  1.  ILPA is the professional association which represents the interests of some 1100 immigration practitioners in the United Kingdom.

  2.  It is unsurprising that the appalling events of 11 September should have caused some re-evaluation of the anti-terrorist measures at the Government's disposal. However, ILPA has profound concerns at the linkage between anti-terrorism measures and the immigration and asylum systems which have been only recently majorly overhauled and which already provide ample scope to deal with any abuse. ILPA is also concerned at the speed at which legislation proposed by the Government might be passed. In the absence of any draft Bill this submission can only touch on points of principle in a few key areas[34]. However ILPA would urge Parliament to insist on a high degree of scrutiny of any proposed legislation since it will doubtless affect the fundamental human rights of everyone in the United Kingdom.

Removal of access to judicial review in SIAC cases

  3.  This proposal is fundamentally misconceived. To ILPA's knowledge there has never been judicial review of any SIAC decisions. Indeed, it is believed that since SIAC's creation it has only considered two appeals substantively[35]. The fact is that SIACA 1997[36] provides a right of appeal to the Court of Appeal on any material question of law[37] and the mere availability of such statutory appeal right means that judicial review would be unavailable. Furthermore, in the only case that has been appealed beyond SIAC (Shafiq Ur Rehman[38]) it was the Home Secretary who appealed to obtain vindication of his own interpretation of the meaning to be ascribed to national security in terrorist cases.

Rejection of asylum claims where person certified to be a threat to national security

  4.  Parliament established SIAC in response to the decision of the Strasbourg Court in Chahal[39]. The use of "special advocates" to protect the interests of appellants during "closed" sessions strikes the necessary balance between the interests of the individual and the state. It is SIAC which is properly seised of the questions whether a person is entitled to Refugee Convention protection and ECHR protection, and, fundamentally whether the person is a threat to national security[40]. It could not be suggested that SIAC is ill-equipped to carry out these tasks, nor could withdrawal of these appeal rights be justified[41].

  5.  Seen in this context the proposal is at best unclear. A suspected terrorist will still appeal to SIAC and it thus makes no sense at all for the asylum claim to have been rejected on certification apparently without substantive consideration since this will have to be undertaken by SIAC in any event. The Home Secretary surely would not wish that SIAC undertakes such assessment without his own views of the merits of any claim. As to the possibility of exclusion from the Refugee Convention, SIAC would have to be satisfied that there were "serious reasons" for considering an appellant to have committed acts which could lead to exclusion[42]. And under the ECHR there is no possibility of exclusion where removal would engage Article 3 which is similarly an issue of fact for SIAC.

  6.  Furthermore, since the Home Secretary has reaffirmed his commitment to Article 3 ECHR and any such "human rights" asylum claim that is made will plainly have properly to be considered, any attempted distinction between a human rights claim and a Refugee Convention claim would be one without a difference since evaluation of the same factual material will determine the outcome of both applications.

  7.  The proposal as outlined poses more questions than it answers. ILPA recalls the wide use of national security deportation powers (on the basis of security services' information) leading to the detention of many Iraqis and others from the Middle East during the conflict in Kuwait, none of whom were deported because they were never in fact a risk to national security. SIAC can now (potentially at least) vindicate the rights of such persons. Its powers must not be undercut at time of crisis. Rather it is essential in suspected terrorist cases that early access to legal advice is guaranteed so that SIAC's ultimate task is made the easier[43].

Detention and derogation from the European Convention on Human Rights

  8.  The right to liberty contained within Article 5 of the ECHR is a fundamental human right which underpins a democratic and free society. It is for this reason that Article 5 only permits detention in certain narrow circumstances and that the European Court of Human Rights has jealously guarded the right to liberty for individuals.

  9.  ILPA understands that the Home Secretary proposes to legislate for the detention of those whom he suspects are terrorists but cannot remove from the United Kingdom because it would be contrary to Article 3 ECHR. Article 5(1)(f) does not permit the detention of a person who is irremovable since detention must be with a view to deportation or extradition[44]. It is for this reason that a derogation under Article 15 of the Convention is proposed.

  10.  ILPA is opposed to the use of long-term detention and considers that it is not necessary or proportionate. A derogation under Article 15 will only be permissible where there is a state of emergency threatening the life of the nation and measures taken strictly required by the exigencies of the situation. Parliament must scrutinise scrupulously whether there is sufficient evidence of such a state of emergency. As far as the necessity of the measures proposed, ILPA calls into question the rationale for such measures. In order to be justified any such detention would have to be based on cogent evidence of the terrorist links or activities. The Terrorism Act 2000 provides extensive powers for the arrest and prosecution of those reasonably suspected of involvement in terrorism[45].

  11.  ILPA believes such threshold of reasonable suspicion to be both necessary and appropriate lest administrative detention will come to be used in preference to trial under the Terrorism Act. The lack of evidence to sustain prosecution must not be the excuse for indeterminate administrative detention without trial based on mere suspicion.

  12.  If derogation is to be relied on detention in such circumstances must be necessary[46]. Such threshold of necessity is consistent at the very least with evidence of reasonable suspicion of the commission of terrorist offences. In these circumstances it is difficult to see how administrative detention as opposed to prosecution can ever be justified. ILPA's concern is not the prosecution of persons reasonably suspected to have committed terrorist acts, rather it is the administrative detention of such persons where there is insufficient evidence to justify prosecution.

  13.  It is self evident that entering a derogation under Article 15 will not automatically render the proposed detention measures lawful. The Government will have to be prepared for a close degree of scrutiny for such a wide reaching and disproportionate measure both in the United Kingdom and in Strasbourg.

  14.  Parliament must ensure that whatever detention measure is enacted it is accompanied by appropriate safeguards.

Measures to allow quicker and more effective co-operation with fellow EU countries

  15.  It is assumed that the Home Secretary intends to give effect to the European Commission's proposal on European arrest warrants and the surrender procedures (COM (2001) 522 final -2001/0215 (CNS)). That proposal aims at enforcing the transfer of a person from one Member State to another for criminal prosecution, effectively replacing existing extradition proceedings.

  16.  ILPA is extremely concerned at this proposal which abolishes due process and a body of European case law and practice. In particular, ILPA sees no justification whatsoever for abolition of the "political offence" and other restrictions[47] on extradition. The political offence restriction in particular has been an extremely long and jealously guarded tradition. Such important safeguards must be retained.

  17.  ILPA considers that the proposal must not undermine the right to seek international protection, yet the procedures envisaged would circumvent the proper application of an asylum procedure. Parliament must ensure that the right to seek international protection is at the forefront of any measures, as must be appropriate safeguards and procedures to guard such right. This does not undermine the right of States to prosecute suspected terrorists or criminals, but ensures that the United Kingdom's obligations under international human rights law are both observed, and seen to be observed, by the international community.

November 2001


34   We focus on the matters mentioned in the Home Office's press release dated 15 October 2001(BLUNKETT OUTLINES FURTHER ANTI-TERRORIST MEASURES) which provides more specific detail that in the Home Secretary's actual Statement to the House. Back

35   Shafiq Ur Rehman's appeal was allowed by SIAC but has since been remitted for re-hearing because of the SIAC's erroneous approach to the meaning of "national security": see the decision of 11 October of the House of Lords dismissing Mr Rehman's appeal ([2001] UKHL 47) from the decision of the Court of Appeal ([2000] IBNLR 531) allowing the Home Secretary's appeal from the original SIAC decision. The appeals of Mukhtiar Singh and Paramjit Singh were allowed by SIAC in July 2000 on the grounds that removal to India would result in treatment contrary to Article 3 ECHR; there was no subsequent appeal against that decision. Back

36   Special Immigration Appeals Commission Act 1997. Back

37   S. 7 SIACA 1997 refers. Back

38   See footnote 1 above. Back

39   Chahal v United Kingdom [1996] 23 EHRR 413. Back

40   Although, following the House of Lords decision in Rehman, this is widely interpreted and SIAC is required to give substantial deference to the executive's view. Back

41   Indeed the SIAC appeal rights are expressly retained. Back

42   See Article 1F. The "refugee" cases of Mukhtiar Singh and Paramjit Singh were rejected in Article 1F(c) grounds. But the necessary threshold is higher than mere suspicion. Back

43   See the ILPA/Justice/ARC publication "Providing Protection" which demonstrates the fundamental importance of early access to good legal advice. Back

44   See Ali v Switzerland [1999] 28 EHRR 304 Back

45   See, for example, the power of arrest without warrant in s. 41(1): "A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist". Back

46   It will be recalled that the UK's derogations under Article 15 have on the whole in recent times related to a limited extension of the permissible period of detention prior to charge; what appears to be presently proposed is of a wholly different order. Back

47   The restrictions on extradition contained in s. 6(1) Extradition Act are "(a) that the offence of which that person is accused or was convicted is an offence of a political character; (b) that it is an offence under military law which is not also an offence under the general criminal law; (c) that the request for his return (though purporting to be made on account of an extradition crime) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or (d) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions." Back


 
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Prepared 19 November 2001