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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