Joint Committee On Human Rights Third Report

4  Immigration Asylum and Nationality Bill


153. On 15 September 2005 the Home Secretary indicated that the Government would be bringing forward amendments to the Immigration, Asylum and Nationality Bill in order to give effect to certain of the counter-terrorism measures which it had decided to take following the events of July. On 12 October the Home Secretary published draft clauses for consultation. The Government subsequently brought forward amendments to the Bill in Committee and they now form part of the Bill.[142]

154. Because the new clauses have been brought forward by way of amendment to an existing Bill, there is no ministerial statement of compatibility with ECHR rights,[143] nor are there any explanatory notes accompanying the clauses or considering their human rights impact. For the purposes of this Report, we have therefore considered the explanations of the clauses given by the Home Secretary in his letters dated 15 September and 12 October 2005, and the Minister's explanations when proposing the amendments in Committee.[144] We have also received representations on the new clauses from the Immigration Law Practitioners Association (ILPA)[145] and the Law Society.[146]

Deprivation of British citizenship

The effect of the new clause

155. New clause 52 of the Bill would introduce a new test for the deprivation of a person's British citizenship by the Secretary of State. Under the present law, the Secretary of State can by order deprive a person of their British citizenship if he is "satisfied that the person has done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory" and does not think that it would make the person stateless.[147] The requirement that the person not be rendered stateless[148] means that the power is in practice available only in relation to people holding dual nationality. However, it is not confined to people who have acquired their British citizenship by naturalisation. The power to deprive of citizenship was made available, for the first time, against a person who was born a British citizen by the Nationality, Immigration and Asylum Act 2002.[149]

156. The new clause would replace the "serious prejudice to the vital interests of the UK" test with the same test which applies to the Secretary of State's powers of exclusion and deportation of non-nationals: the Secretary of State will have the power to deprive a person of their British citizenship if he is "satisfied that deprivation is conducive to the public good".[150] There would be a right of appeal against the deprivation, either to the Asylum and Immigration Tribunal, or to the Special Immigration Appeals Commission ("SIAC") if the Secretary of State certified that the case concerned national security.[151] The statutory framework does not, however, prescribe the grounds on which such an appeal can be brought, or the matters which can or must be taken into account by the tribunal on appeal, and the scope of the appellate jurisdiction is therefore uncertain.[152]

157. Although this is not stated on the face of the Bill, the Minister introducing the amendment in Committee, Mr. Tony McNulty MP, made clear that it is the Government's intention that the list of "unacceptable behaviours" which the Secretary of State has adopted to guide the exercise of his discretion to exclude and deport non-nationals will also apply to the exercise of his similarly worded discretion to deprive a person of their British citizenship. The Minister said, after referring to the list of unacceptable behaviours:[153]

    "It is, in our view, now essential that we have similar powers to withhold and to remove British nationality and the right of abode in the United Kingdom where an individual is found to have engaged in such activity. It is wrong that certain individuals with rights of residence elsewhere should be allowed to acquire and then to shelter behind their British citizenship, or their right of abode here, so as to avoid the consequences that would otherwise befall them."

158. Although the Minister referred in his speech to the power being exercised against individuals who acquire British citizenship, the scope of the power is very much wider: it applies also to British born citizens, that is, people who acquired their nationality not by naturalisation, but by birth. Under the new clause, a person who was born a British national, but has dual nationality, will therefore be able to be deprived of their British citizenship if the Secretary of State is satisfied that he or she has engaged in one of the unacceptable behaviours, including "justifying" terrorism.

The human rights implications

159. Human rights law does not confer any free standing right to be a citizen of any country. However, deprivation of citizenship has such serious consequences for the individual concerned that it indirectly engages a number of other human rights.[154] It may, for example, deprive the person of their right of abode in the UK, rendering them subject to immigration control, and therefore liable to be removed or excluded from the UK, which engages, for example, the right to be free of degrading treatment (Article 3 ECHR), the right to liberty (Article 5 ECHR), the right to respect for family life (Article 8 ECHR), and the right not to be arbitrarily deprived of the right to enter one's own country (Article 12(4) ICCPR).[155] Deprivation of British citizenship also entails loss of the right to a UK passport, which may affect the person's ability to travel, loss of British diplomatic protection, loss of status, loss of the ability to participate in the democratic process in the UK, and serious damage to reputation and dignity.

160. In view of the extremely serious consequences of deprivation of British citizenship for other human rights, the main question which arises is whether there are sufficient safeguards against the arbitrary exercise of the power. There are three reasons to be concerned about the adequacy of the safeguards against arbitrariness.

161. First, it is a well established principle of international law, including human rights law, that states have the right to control the admission and expulsion of non-nationals to and from their territories. This explains the width of the administrative discretion accorded to the Secretary of State to exclude or deport non-nationals, on the ground that their presence is not conducive to the public good, subject to the requirements of due process. States do not, however, enjoy the same degree of discretion in relation to their own nationals. British citizens who acquired their nationality by birth do not owe their citizenship status to an exercise of the Government's discretion. The effect of the new clause is to make the test for the deprivation of citizenship from a British national (with dual nationality) the same as the test for exclusion or deportation of a non-national. The "serious prejudice to the vital interests of the nation" test contained a very much higher threshold, reflecting the seriousness of the consequences of the decision. The new "conducive to the public good" test imports a very much lower threshold and therefore introduces greater scope for arbitrariness in the exercise of the power. This greater scope for arbitrariness is demonstrated by the fact that, under the new power, a British born citizen will be liable to be deprived of their citizenship if they have said something which in the Secretary of State's view "justifies" terrorism.[156]

162. Second, although there is a statutory right of appeal against the decision to deprive of citizenship, there is no explicit requirement that the Secretary of State's decision be based on objectively reasonable grounds, and it is not clear whether the scope of the appellate jurisdiction is broad enough to enable an appeal to be brought on that ground. The Secretary of State need only be "satisfied" that deprivation of citizenship is conducive to the public good. There is no requirement that he have objectively reasonable grounds for his subjective belief. When the Joint Committee on Human Rights reported in the last Parliament on the changes to the power to deprive of citizenship in the Nationality, Immigration and Asylum Act 2002, it expressed its concern about the lack of a requirement that the Secretary of State show that there were objectively reasonable grounds for exercising the power to deprive.[157] The lack of such a requirement seemed to the Committee "to put at risk a person's legal status without adequate safeguards against arbitrariness." The Committee drew to the attention of each House its view that, "as a matter of general principle … it is a far more effective guarantee against arbitrariness, and a better way of assuring good administrative decision-making (as well as being far more compatible with the rule of law which underpins human rights), to require public authorities to justify the deprivation of a person's status to a standard of reasonableness".[158] Notwithstanding the Committee's concerns, the clause was not amended by the Government and was enacted using the same subjective language as the clause which was the subject of the Committee's concern. The clause currently under consideration uses the same subjective formula.

163. Third, the measure could also be said to discriminate between British nationals, by applying only to dual nationals. This amounts to treating them differently on the basis of their also having another nationality, a difference of treatment which could not be objectively justified because who happens to be a dual national, and therefore liable to deprivation, will depend on the nationality laws of other countries which are not uniform in this respect. ILPA point out, for example, that a British-born citizen of Jamaican or Zimbabwean parentage may be a dual national and therefore liable to deprivation of their British citizenship under this new clause, while a British-born citizen of Indian or Ugandan parentage will not, because India and Uganda do not permit dual nationality.

164. We therefore conclude that the new test for deprivation of citizenship in new clause 52 contains insufficient guarantees against arbitrariness in its exercise in light of (i) the significant reduction in the threshold, (ii) the lack of requirement of objectively reasonable grounds for the Secretary of State's belief, (iii) the arbitrariness of the definition of the class affected, and that it therefore gives rise to a risk of incompatibility with Article 12(4) ICCPR, Articles 3, 5 and 8 ECHR and Article 14 in conjunction with those Articles, and Article 26 ICCPR.

Deprivation of right of abode

165. British citizens are not the only group with the right of abode in the UK. Certain other Commonwealth citizens also have the right of abode in the UK under section 2 of the Immigration Act 1971.[159] The Bill also provides for the deprivation of such a right of abode enjoyed by a non-national. New clause 53 would empower the Secretary of State by order to remove such a right of abode if he "thinks that it would be conducive to the public good for the person to be excluded or removed from the UK".[160]

166. Again, although not on the face of the Bill, it is the Government's intention that the exercise of the power "would be informed, but not wholly constrained, by the published list of 'unacceptable behaviours'".[161] A Commonwealth citizen with a right of abode in the UK could therefore have that right of abode taken away for speech which the Secretary of State thinks amounts to "justifying" terrorism. There would be a right of appeal against any deprivation to the asylum and immigration tribunal, or to SIAC where sensitive information might otherwise be disclosed in the course of the appeal.[162]

167. Deprivation of the right of abode has many of the same serious consequences as deprivation of citizenship. Effective guarantees against arbitrary deprivation are therefore also important. Two of the concerns set out above in relation to the power to deprive of citizenship do not seem to apply in this case.

168. First, although there is again a lack of any requirement on the face of the Bill that the Secretary of State has reasonable grounds for believing that exclusion or removal from the UK would be conducive to the public good (the test is whether he "thinks" it would be so conducive), this is less problematic in this case because it is clear that the statutory right of appeal is to a body with full jurisdiction,[163] which would have the power to reverse the Secretary of State's decision if not satisfied itself on the evidence that exclusion or removal would be conducive to the public good.

169. Second, the power to deprive of the right of abode does not give rise to the same discrimination problem: whereas only some British nationals (those holding dual nationality) are subject to the power to have their citizenship removed, all non-nationals with a right of abode are potentially liable to have their right of abode taken away. There are no arbitrary distinctions within the class affected.

170. This leaves as the main issue whether the power to deprive of a right of abode contains sufficient guarantees against arbitrariness in light of, first, the sheer breadth of the concept of "conducive to the public good" and, second, the relatively low threshold which it sets for the exercise of a power of deprivation which has very serious consequences for the individual concerned. We consider that (i) the same problems with the significant reduction in the threshold referred to in relation to clause 52 powers (set out in paragraphs 161 and 164) apply to the use of this power and that (ii) the legal uncertainty caused by the width of the current definition of unacceptable behaviours as set out in paragraph 118 above means that there are not at present sufficient guarantees against arbitrariness in the exercise of the power to deprive of a right of abode, and that therefore the power as currently set out gives rise to a substantial risk of incompatibility with Articles 3, 5 and 8 ECHR. However if these two concerns were addressed, the availability of a full right of appeal in relation to this power would provide a sufficient guarantee.

Terrorists and asylum

171. New clause 51 of the Bill lays down a statutory construction of a provision of the Refugee Convention. Article 1F of the Refugee Convention sets out the categories of people who are not considered to be deserving of international protection as refugees. It provides:

    (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

    (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

    (c) he has been guilty of acts contrary to the purposes and principles of the United Nations."

172. The new clause provides that in the construction and application of Article 1F(c), the reference to "acts contrary to the purposes and principles of the UN" shall be taken as including acts of committing, preparing or instigating terrorism, and acts of encouraging or inducing others to commit, prepare or instigate terrorism, whether or not the acts themselves amount to an actual or inchoate offence.[164]

173. The Minister introducing the new clause in Committee said that the purpose of the new clause is to make explicit that "terrorists should be excluded from asylum".[165] He said that this was already implicit in Article 1F(c) itself, but it was appropriate to make it explicit that terrorists should not be afforded the protection of the Refugee Convention. He cited UN Security Council Resolution 1373 as evidence of the UN's acceptance that terrorist acts are contrary to the purposes and principles of the UN:

    "Any act of international terrorism constitutes a threat to international peace and security … acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations."

174. Insofar as the Government's purpose in new clause 51 is merely to ensure that Article 1F(c) of the Refugee Convention, properly interpreted in accordance with the purposes of that Convention, is given proper effect in domestic law, it is unobjectionable in human rights law terms. The necessity for such a provision may be questionable, in light of the Minister's acceptance in Committee that he could not point to any cases where the absence of the new clarifying clause had led to an individual being granted asylum by the courts who should not have been granted it because he was a terrorist,[166] but the absence of such evidence does not mean that it is not appropriate to make explicit what is implicit in the Refugee Convention to avert such a possibility in the future.

175. As drafted, however, the new clause 51 goes considerably further than the Government's stated purpose, and would significantly widen the scope of the exclusion from protection in Article 1F(c) in two important ways.

176. First, "terrorism" is given its domestic definition in s. 1 of the Terrorism Act 2000 for the purposes of the new clause.[167] That definition includes a very wide range of conduct. It also covers acts wherever they are committed. Like clause 1 of the Terrorism Bill, the provision therefore directly raises the possibility that it will be used to deny asylum to individuals who may have been engaged abroad in resistance to an oppressive regime but are caught by the UK's very wide definition of "terrorism." The Minister very fairly accepted that this is the effect of the clause. He said "terrorist acts committed abroad will be covered by the definition of Article 1F(c) and subsection (1) of the clause".[168] He also repeated the Home Secretary's position that there are today no circumstances in the world in which violence can be justified as a means of political change. He said "We have also made it clear that we do not believe that there are any circumstances in which terrorism is justified, wherever the terrorist act is committed; we cannot condemn terrorist acts in the United Kingdom but tolerate them elsewhere."[169]

177. The second way in which the new clause would significantly widen the scope of the exclusion from protection in Article 1F(c) is by its inclusion of the phrase "whether or not the acts amount to an actual or inchoate offence." The effect of these words is to make the applicability of the exclusion from asylum wider than the actual commission of terrorist offences. Again this is the Government's explicit intention. The scope of the exclusion from asylum is intended to be wider than the new encouragement offence in clause 1 of the Terrorism Bill, and to include the "unacceptable behaviours" in the Home Secretary's published list which include behaviours which are not criminal offences. That this is he Government's intention was made clear in the letter from the Home Secretary dated 15 September 2005 and it was confirmed by the Minister in Committee.[170] The new clause would therefore operate to exclude from asylum individuals who have not committed any terrorist crime under UK law.

178. Guidance on the proper interpretation of Article 1F(c) is available from the United Nations High Commission for Refugees, which is responsible for supervising the application of the provisions of the Refugee Convention. The most up to date guidance on from the UNHCR in relation to Article 1F is to be found in its Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees.[171] Those Guidelines state that, given the possible serious consequences of exclusion from refugee status, the exclusion clauses in Article 1F should always be interpreted restrictively and used with great caution, and only after a full assessment of all the individual circumstances of the case. In relation to Article 1F( c), the Guidelines say that it should be read narrowly: it is "only triggered in extreme circumstances by activity which attacks the very basis of the international community's coexistence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights, would fall under this category." To redefine the scope of the Article 1F(c) exclusion so as to catch anyone who has threatened damage to property as a means to political change anywhere in the world, and anyone who in the Secretary of State's view has engaged in one of the unacceptable behaviours such as "justifying" terrorism, is in our view to broaden the scope of the exclusion in Article 1F( c) in a way which is not itself compatible with the Refugee Convention.[172]

179. In order to be compatible with the Refugee Convention, and to give effect to the Government's stated purpose of merely making explicit what Article 1F( c) implicitly requires, the clause would need to be amended to decouple it from both the broad definition of "terrorism" in s.1 of the Terrorism Act 2000 and the published list of unacceptable behaviours in its present form. The Minister has helpfully indicated the Government's preparedness to keep the drafting of the clause under review in light of debates on the Terrorism Bill. To achieve compatibility it is in our view necessary to combine a narrower definition of terrorism with confining the scope of the exclusion to actual—rather than inchoate—existing terrorist offences in UK law, including, if it is satisfactorily defined in its enacted form, the proposed new offence of encouragement.

Out of country appeals against deportation in national security cases

180. New clause 7 would require appeals against deportations on national security grounds to be brought out-of-country, except where the deportation is challenged on human rights grounds.[173] The Secretary of State has the power to certify that removal would not breach the ECHR, but the new clause provides a right of appeal to SIAC against such a certificate.[174]

181. The purpose of the new clause, according to the Minister introducing it in Committee, is to streamline the process of appeals against deportation orders in national security cases:[175] "the aim is to be sure that those who threaten the security of the UK and its people will be removed from the UK more quickly than is currently the case." The rationale for the measure is that in cases where deportation orders have been made on national security grounds, the current appeals system results in unnecessary delays because the hearing of the national security aspects of the case can be the most time-consuming element of an appeal. The new clause would speed up the system, because the national security aspects of the case would only be dealt with after removal, whilst retaining judicial scrutiny, prior to removal, of the Secretary of State's decision that removal would not breach the individual's human rights.

182. In cases where the deportee has an arguable case that he or she will be tortured on their return, to provide only for an out-of-country right of appeal against such deportation would, it seems to us, be incompatible with the right to an effective remedy as stipulated in Article 13 ECHR in conjunction with Article 3, and with Article 3 of UNCAT. The preservation of an in-country human rights appeal in the new clause meets this concern. A person who is the subject of a deportation order will have an opportunity, in-country, to challenge their deportation on human rights grounds. This would not only enable Article 3 claims, concerning risk of torture, to be properly determined before removal, but it would also enable a person who challenges their removal on the grounds that it constitutes a disproportionate interference with their family life, contrary to Article 8 ECHR, to have their claims determined, even though the proper determination of such Article 8 claims is likely to involve consideration of the strength of the national security justification for deportation as part of determining the proportionality of any interference with family life.

183. The drafting of the new clause does, however, give rise to one concern about compatibility with the Refugee Convention. It preserves an in-country right of appeal on human rights grounds, but not on asylum grounds. The Minister in Committee explained that the reason for this is that a person who is a national security threat is excluded from the protection of the Refugee Convention, and as the purpose of the clause is to ensure that the national security aspect is only to be challenged from abroad, there would be no point in granting an appeal right on asylum grounds in-country as the appeal would certainly fail.[176]

184. The European Commissioner for Human Rights, Mr. Alvaro Gil-Robles, in his recent report on the UK, expressed "grave concerns" about non-suspensive (i.e out-of-country) appeals in asylum cases.[177] He said that this requirement is difficult to reconcile with the Geneva Convention, as it puts potentially successful applicants at serious risk of persecution upon their return to their countries of origin. He also observed that it is clearly harder to lodge an appeal from abroad and difficult for applicants to maintain contact with their lawyers. He concluded that removing the essential guarantee that an in-country right of appeal provides cannot be considered appropriate.

185. We consider that the failure of the new clause to preserve an in-country appeal on asylum grounds, as well as on human rights grounds, gives rise to a risk of incompatibility with the Refugee Convention. The problem with the Minister's argument that an in-country asylum appeal would certainly fail because national security risks are excluded from protection is that it presupposes the correctness of the Secretary of State's certificate that the person is a national security threat. The effect of the new clause is that there is no mechanism for independent review of that assertion by an asylum seeker before his or her removal. In order to be compatible with the Refugee Convention, we consider that the new clause ought to preserve in-country appeals on asylum grounds as well as human rights grounds.

142   HC Bill 70, as amended in Standing Committee E (printed 27 October 2005) Back

143   Section 19 of the Human Rights Act 1998 does not require ministers to make statements of compatibility in relation to Government amendments to Bills Back

144   Hansard, 27 October 2005, cols. 251-316 (Standing Committee E) Back

145   Appendix 15 Back

146   Appendix 18 Back

147   Section 40(2) of the British Nationality Act 1981.The language of the test in the current law reflects the language used in the European Convention on Nationality, which requires that no one shall be arbitrarily deprived of his or her nationality, and that there should only be power to deprive of nationality in very narrowly defined circumstances, including "conduct seriously prejudicial to the vital interests of the State Party" (Article 7(1)(d)).The UK has not yet ratified the Nationality Convention, but in a written answer in response to Lord Lester on 18 July 2002 Lord Filkin on behalf of the Government said "If the Nationality, Immigration and Asylum Bill is enacted in its present form, we shall, once its provisions are brought into force, be in a position to sign and ratify the convention and would hope to do so." Back

148   The requirement flows from the UK's obligations under the UN Convention on the Reduction of Statelessness 1961 Back

149   Section 4(1), inserting a new s. 40 into the British Nationality Act 1981 Back

150   New clause 52(1), substituting a new s. 40(2) of the British Nationality Act 1981 Back

151   Section 40A of the British Nationality Act 1981, also inserted by s. 4 of the Nationality, Immigration and Asylum Act 2002 Back

152   There have so far been no such appeals because the power to deprive of citizenship conferred by the 2002 Act has yet to be exercised Back

153   Hansard, 27 October 2005 at cols. 254-255 (Standing Committee E) Back

154   Article 3 of the Fourth Protocol to the ECHR, which provides that no-one shall be expelled from, or deprived of the right to enter, the territory of the State of which he is a national, would be engaged, but the UK has not ratified it. Back

155   Although the UK has entered a reservation to Article 12(4) ICCPR, reserving its right to continue to apply such immigration legislation governing entry into, stay in and departure from the UK as they deem necessary from time to time", this does not permit arbitrary deprivation of the right, which would frustrate one of the central purposes of Article 12(4). Back

156   The Minister indicated, in Committee, op cit. at col. 254, as did the Secretary of State in his evidence to the JCHR, that the list of unacceptable behaviours might be amended so as to be consistent with the wording used in the enacted version of clause 1 of the Terrorism Bill. Back

157   Seventh Report of Session 2001-02, Making of Remedial Orders, HL Paper 58, HC 473, at paras. 27-31 Back

158   ibid at para. 30 Back

159   In Committee the Minister described this group as comprising, primarily, citizens of Commonwealth countries such as Australia and Canada whose mothers were born in the UK and Commonwealth citizen women married before 1983 to men with the right of abode here: op. cit. at col. 255. Back

160   New clause 53(1), inserting new section 2A into the Immigration Act 1971 Back

161   Standing Committee E Hansard, op cit. at col. 256 Back

162   New clause 53(2), inserting news s. 82(2)(ib) into the Nationality, Immigration and Asylum Act 2002 Back

163   The right of appeal is under s. 82 of the Nationality, Immigration and Asylum Act 2002: new clause 53(2).On such an appeal the appellate body may take into account any matter which might have led the Secretary of State to reach a different decision. Back

164   New clause 51(1) Back

165   Standing Committee E Hansard, op cit. at col. 284 Back

166   ibid., at cols. 285 and 297 Back

167   New clause 51(3) Back

168   SCE Hansard, op cit. at col. 296 Back

169   ibid., at col. 284 Back

170   ibid., at col. 296. "The clause is about excluding those who commit, prepare or instigate acts of terrorism or encourage or induce them. Some of the unacceptable behaviours fall in the area of terrorism and encouraging terrorism and the clause covers them". Back

171   HCR/GIP/03/05, 4 September 2003 Back

172   For similar concerns about the compatibility of a statutory construction of the Refugee Convention, see 22nd Report of Session 2003-04, The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, HL Paper 190, HC 1212, in which the Committee expressed its concern that the order was incompatible with the Refugee Convention because it included within its scope a number of offences which do not amount to "particularly serious crimes" within the meaning of the Convention itself properly interpreted. Back

173   Inserting new s. 97A into the Nationality, Immigration and Asylum Act 2002 Back

174   New s. 97A(3) NIAA 2002 Back

175   SCE Hansard, op cit. at col.298 Back

176   ibid., at col. 299 Back

177   CommDH(2005)6 (8 June 2005) at para. 67 Back

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