18. Further submission from the Law
Society on additional amendments to the Immigation, Asylum and
Nationality Bill
APPEALS: DEPORTATION
This clause provides for out of country appeals
against the decision to make deportation orders and any related
asylum claim of an applicant whose case has been certified on
the grounds of national security. Any appeal on human rights grounds
could be heard in country unless the Secretary of State certifies
that removal of the person from the UK would not breach the UK's
obligations under the ECHR. If the human rights claim is certified
there will be an in country right of appeal to SIAC against the
certification. The Government's aim in introducing the amendment
is to speed up deportations of applicants who pose a threat to
national security.
The Law Society welcomes the Government's decision
to allow judicial scrutiny before deportation of arguments about
the treatment the person concerned may be exposed to if removed.
However, the Society understands that the person concerned will
be able to challenge the security case against them only from
abroad. This separation of the grounds on which the person concerned
can appeal is potentially problematic. It is conceivable, for
instance, that evidence relating to the security case against
the person may impact on whether they will be subject to inhumane
treatment or torture on return to the country or origin. The inability
to fully explore the implications of and to challenge such evidence
as part of the human rights appeal may inhibit effective scrutiny
of whether return will. constitute a breach of Article 3.
It is not apparent on the face of the amendment
how the suggested certification of the human rights element of
a claim will be decided. The Law Society suspects that this will
involve consideration of diplomatic assurances given by countries
of origin. Very careful thought needs to be given by both Ministers
and the courts to the weight to be attached to any relevant diplomatic
assurances and the Society would welcome clarification of how
these will feature in the certification process.
INFORMATION: EMBARKING
PASSENGERS
This clause provides new powers to Immigration
Officers (IOs) to question a person leaving the UK as to their
identity; whether or not they entered the UK lawfully; they have
complied with conditions of leave to enter or remain; and whether
their return to the UK is prohibited or restricted in some way.
The clause also provides for the power to detain the person for
12 hours if further examination is required. The Society is not
clear as to the Government's aim in extending the powers of IOs
in this way. The logical conclusion must be that the person's
passport will be endorsed according to the IO's findings. We would
welcome clarification on this point.
It is arguable that this clause is not compliant
with Article 5 of the ECHR. Despite falling within the exception
in the second limb of Article 5(1)(b), ie lawful detention in
order to secure fulfilment of any obligation provided by the law,
the power could be used in an arbitrary manner through abuse or
disproportionate application. This is particularly the case as
IOs are not subject to adequate supervision or scrutiny when exercising
their powers. We would welcome an assurance that proper supervision
and monitoring will be put in place.
As this measure has been introduced as part
of a package of measures dealing with terrorist activity, the
danger is that IOs may use the examination to identify people
suspected of involvements in terrorist activities. If this is
the case, the Society believes that any power of detention should
be exercised by specialist police on notification by an IO following
proper procedures.
October 2005
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