Joint Committee On Human Rights Written Evidence

18.  Further submission from the Law Society on additional amendments to the Immigation, Asylum and Nationality Bill


  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.


  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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