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:
"1F. The provisions of this Convention shall
not apply to any person with respect to whom there are serious
reasons for considering that:
(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
