2. Copy of letter from Rt Hon Charles
Clarke MP, Secretary of State for the Home Department to Rt Hon
David Davis MP and Mark Oaten MP, re draft clauses to the Immigration,
Asylum and Nationality Bill as counter-terrorism measures
I am writing to provide you with further details
of the counter terrorism measures we plan to include in the Immigration,
Asylum and Nationality Bill and to seek your views on them. I
wrote to you on 15 September indicating that I planned to legislate
on a number of points. I am now attaching draft clauses on the
measures covered in that letter, and on an additional measure
providing for a streamlined appeal process aqainst deportation
orders in national security cases. I would welcome your comments
on them by 18 October.
In my letter of 15 September I set out my intention
to take forward the following measures: to clarify the position
where an immigration officer or constable may obtain a warrant
issued in anticipation of arresting someone who is liable to detention
upon service of intention to deport; in granting British citizenship,
to extend the statutory requirement that the Secretary of State
must be satisfied that all applicants must be of good character;
to deny right of abode where it is conducive to the public good;
and to give enhanced powers to Immigration Officers operating
embarkation controls. I am now attaching draft clauses relating
to these measures.
I also said I wished to clarify our ability
to deny asylum to terrorists. The draft clause I am now enclosing
interprets the exclusion clause in the Refugee Convention relating
to "acts contrary to the principles and purposes of the United
Nations" to include acts of committing, preparing or instigating
terrorism, as well as encouraging or inducing others to commit
such acts. It also provides that in an asylum appeal where the
case has been refused in reliance on one of the exclusion clauses
in the Refugee Convention, the AIT or SIAC must consider the exclusion
issue first and if they agree that the case has been made on that
point they must dismiss the asylum appeal.
I also referred deprivation of citizenship in
my previous letter. The draft clause provides for the Secretary
of State to deprive a person of a British citizenship status if
he is satisfied that deprivation is conducive to the public good.
This will replace the current test for deprivation of citizenship,
which is that the person concerned must have done something seriously
prejudicial to the vital interests of the United Kingdom. The
new power will apply only to dual nationals and cannot be used
to make a person stateless. It is designed to enable the Secretary
of State to take away British citizenship from someone who has
committed one of the unacceptable behaviours set out in the list
which we published on 24 August. This will operate alongside my
existing power to exclude or deport foreign nationals whose presence
is not conducive to the public good because their behaviour is
unacceptable.
In addition, I am proposing a streamlined appeal
process against deportation orders in national security cases.
It will make the substantive appeal against the deportation order
non-suspensive; in particular, the person concerned will be able
to challenge the national security case against them only from
abroad. They will however be able to appeal on human rights grounds
before removal. This will speed up the deportation process but
will still allow judicial scrutiny before deportation of arguments
about the treatment the person concerned would be exposed to if
removed.
We intend to move these clauses in Committee,
and so I would welcome comments by 18 October.
I am copying this letter and attachments to
the Chairs of the Home Affairs Committee, John Denham, the Intelligence
and Security Committee, Paul Murphy, the Joint Committee on Human
Rights, Andrew Dismore, the Constitutional Affairs Committee,
Alan Beith and the Independent Reviewer of the Terrorism Act 2000,
Lord Carlile. I am also placing a copy in the Library of the House
of Commons and on the Home Office website.
12 October 2005
IMMIGRATION, ASYLUM
AND NATIONALITY
BILL
Arrest and detention pending deportation
Mr Tony McNulty
To move the following Clause:
"At the end of paragraph 2(4) of Schedule
3 to the Immigration Act 1971 (c 77) (deportation: power to detain)
insert "; and for that purpose the reference in paragraph
17(1) to a person liable to detention includes a reference to
a person who would be liable to detention upon receipt of a notice
which is ready to be given to him.".
Information: embarking passengers
Mr Tony McNulty
1
To move the following Clause:
"(1) Schedule 2 to the Immigration Act
1971 (c 77) (control on entry, &c) shall be amended as follows.
(2) In paragraph 3(1) for the words from
`and if he is not' to the end substitute—`and, if he is
not a British citizen, for the purpose of establishing—
(b) whether he entered the United Kingdom
lawfully;
(c) whether he has complied with any
conditions of leave to enter or remain in the United Kingdom;
(d) whether his return to the United
Kingdom is prohibited or restricted by virtue of an enactment.
(1A) An immigration officer who
examines a person under sub-paragraph (1) may require him, by
notice in writing, to submit to further examination for a purpose
specified in that sub-paragraph.'
(3) After paragraph 16(1A) insert—
`(1B) A person who has been
required to submit to further examination under paragraph 3(1A)
may be detained under the authority of an immigration officer,
for a period not exceeding 12 hours, pending the completion of
the examination.'
(4) In paragraph 21(1) after `16' insert
`(1), (1A) or (2)'.".
Refugee Convention: construction
Mr Tony McNulty
1
To move the following Clause:
"(1) In the construction and application
of Article 1(F)(c) of the Refugee Convention the reference to
acts contrary to the purposes and principles of the United Nations
shall be taken as including, in particular—
(a) acts of committing, preparing or
instigating terrorism (whether or not the acts amount to an actual
or inchoate offence), and
(b) acts of encouraging or inducing others
to commit, prepare or instigate terrorism (whether or not the
acts amount to an actual or inchoate offence).
(2) Where the Secretary of State rejects
an asylum claim on the grounds that Article 1(F) of the Refugee
Convention applies, the Asylum and Immigration Tribunal, or the
Special Immigration Appeals Commission—
(a) must begin substantive deliberation
on any appeal in which the rejection is to be considered by considering
whether or not Article I (F) applies, and
(b) if it concludes that Article 1(F)
applies, must dismiss the appeal in so far as it relies on the
Refugee Convention.
`asylum claim' means a claim by a person that
to remove him from or require him to leave the United Kingdom
would be contrary to the United Kingdom's obligations under the
Refugee Convention,
`the Refugee Convention' means the Convention
relating to the Status of Refugees done at Geneva on 28th July
1951, and
`terrorism' has the meaning given by section
1 of the Terrorism Act 2000 (c 11).".
Mr Tony McNulty
1
Schedule 3, page 29, line 40, second column,
at beginning insert "In section 40A(3), the word `and' before
paragraph (d).".
Deprivation of citizenship
Mr Tony McNulty
2
To move the following Clause:
"(1) For section 40(2) of the British
Nationality Act 1981 (c 61) (deprivation of citizenship: prejudicing
UK interests) substitute—
`(2) The Secretary of State may by order
deprive a person of a citizenship status if the Secretary of State
is satisfied that deprivation is conducive to the public good."
(2) At the end of section 40A(3) of that
Act (deprivation: appeal) add—
(and omit the word `and' before section 40A(3)(d)).".
Deprivation of right of abode
Mr Tony McNulty
3
To move the following Clause:
"(1) After section 2 of the Immigration
Act 1971 (right of abode) insert—
`2A Deprivation of right of abode
(1) The Secretary of State may by order
remove from a specified person a right of abode in the United
Kingdom which he has by virtue of section 2(1)(b).
(2) The Secretary of State may make an
order under subsection (1) in respect of a person only if the
Secretary of State thinks that it would be conducive to the public
good for the person to be excluded or removed from the United
Kingdom.
(3) An order under subsection (1) may
be revoked by order of the Secretary of State.
(4) While an order under subsection (1)
has effect in relation to a person—
(a) section 2(2) shall not apply to him, and
(b) any certificate of entitlement granted to
him shall have no effect.'
(2) In section 82(2) of the Nationality,
Immigration and Asylum Act 2002 (c 41) (right of appeal: definition
of immigration decision) after paragraph (ia) insert—
`(ib) a decision to make an order under
section 2A of that Act (deprivation of right of abode),'.".
Acquisition of British nationality, &c
Mr Tony McNulty
4
To move the following Clause:
"(1) The Secretary of State shall not
grant an application for registration as a citizen of any description
or as a British subject in accordance with a provision listed
in subsection (2) unless satisfied that the person is of good
character.
(2) Those provisions are—
(a) sections 1(3) and (4), 3(1), (2)
and (5), 4(2) and (5), 4A, 4B, 4C, 5, 10(1) and (2), 13(1) and
(3) of the British Nationality Act 1981 (c 61) (registration as
British citizen),
(b) sections 15(3) and (4), 17(1), (2)
and (5), 22(1) and (2), 24, 27(1) and 32 of that Act (registration
as British overseas territories citizen, &c),
(c) section 1 of the Hong Kong (War Wives
and Widows) Act 1996 (c 41) (registration as British citizen),
(d) section 1 of the British Nationality
(Hong Kong) Act 1997 (c 20) (registration as British citizen),
and
(e) article 6(3) of the Hong Kong (British
Nationality) Order 1986 (SI 1986/948) (registration as British
Overseas citizen).
(3) Where the Secretary of State makes arrangements
under section 43 of the British Nationality Act 1981 for a function
to be exercised by some other person, subsection (1) above shall
have effect in relation to that function as if the reference to
the Secretary of State were a reference to that other person.".
Appeals: deportation
Mr Tony McNulty
1
To move the following Clause:
"(1) After section 97 of the Nationality,
Immigration and Asylum Act 2002 (c 41) (appeals: national security)
insert—
`97A National security: deportation
(1) This section applies where the Secretary
of State certifies that the decision to make a deportation order
in respect of a person was taken on the grounds that his removal
from the United Kingdom would be in the interests of national
security.
(2) Where this section applies—
(a) section 79 shall not apply,
(b) the Secretary of State shall be taken to
have certified the decision to make the deportation order under
section 97, and
(c) for the purposes of section 2(5) of the Special
Immigration Appeals Commission Act 1997 (c 68) (appeals from within
United Kingdom) it shall be assumed that section 92 of this Act—
(i) would not apply to an appeal against
the decision to make the deportation order by virtue of section
92(2) to (3D),
(ii) would not apply to an appeal
against that decision by virtue of section 92(4)(a) in respect
of an asylum claim, and
(iii) would be capable of applying
to an appeal against that decision by virtue of section 92(4)(a)
in respect of a human rights claim unless the Secretary of State
certifies that the removal of the person from the United Kingdom
would not breach the United Kingdom's obligations under the Human
Rights Convention.
(3) A person in respect of whom a certificate
is issued under subsection (2)(c)(iii) may appeal to the Special
Immigration Appeals Commission against the issue of the certificate;
and for that purpose the Special Immigration Appeals Commission
Act 1997 shall apply as to an appeal against an immigration decision
to which section 92 of this Act applies.
(4) The Secretary of State may repeal
this section by order.'".
(2) In section 112 of that Act (regulations,
&c) after subsection (5A) insert—
"(5B) An order under section
97A(4)—
(a) must be made by statutory instrument,
(b) shall be subject to annulment in pursuance
of a resolution of either House of Parliament, and
(c) may include transitional provision.'".
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