What is deportation on grounds of national security?
Under section 15 of the Immigration Act 1971, the Home Secretary has a very broad power to deport any foreign national whose removal from the UK he or she believes would be ‘conducive to the public good’. In Secretary of State for the Home Department v Rehman,(( UKHL 47 at para 8)) Lord Slynn said that ‘there is no definition or limitation of what can be ‘conducive to the public good’ and the matter is plainly in the first instance and primarily one for the discretion of the Secretary of State’.
Although the Home Secretary enjoys a very broad ground to deport foreign nationals, this power is traditionally exercised in two kinds of cases:
- where a foreign national is engaged in criminal activity;
- where a foreign national is deemed to be a threat to the national security of the UK.
How is deportation on grounds of national security different from other kinds of deportation?
The primary difference is the way in which the appeal is handled. The individual still has a right of appeal, but it is to the Special Immigration Appeals Commission (SIAC) instead of the Asylum and Immigration Tribunal, which normally handles appeals against deportation orders.
Why is it in the news?
Because deportation is currently a major plank of the government’s counter-terrorism policy. Following the 7/7 bombings, the government has made clear its intention to pursue deportation of suspected terrorists wherever possible.
In particular, the government has repeatedly expressed its frustration with the existing rules governing deportation to countries where torture is practised. To this end, it has intervened in a case before the European Court of Human Rights (ECtHR), Ramzy v Netherlands,((Application Number 25424/05)) due to be heard sometime in 2007. The purpose of this intervention is to argue that the court’s 1996 decision in the case of Chahal v United Kingdom(( ECHR 54 ))should be reversed.
What is the Chahal decision?
The 1996 decision of the ECtHR in Chahal v United Kingdom concerned the UK government’s attempt to deport Mr Chahal, an Indian national of Sikh origin, to India on the grounds that his alleged involvement in Sikh separatist activities constituted a threat to the national security of the UK.
Mr Chahal complained to the court that, if he was sent back to India, he would face torture at the hands of the Indian authorities. Mr Chahal also argued that the procedures governing his appeal against deportation on national security grounds were unfair: in particular, he had no opportunity to view or challenge the evidence against him. Instead, his only avenue for appeal against deportation was to an internal Home Office review committee, known informally as the ‘Three Wise Men’. The committee had the power to examine the secret evidence upon which the Home Secretary had based his decision. It could also make recommendations to the Home Secretary. However, the committee did not operate like a court and the Home Secretary was under no obligation to follow its recommendations.
The ECtHR upheld Mr Chahal’s complaint on both grounds. First, it affirmed that the prohibition against torture under Article 3 of the European Convention on Human Rights (ECHR) prohibited returning any person to a country where they faced a real risk of torture, even if that person was deemed to pose a threat to national security.
Secondly, the court held that the lack of procedures allowing Mr Chahal to challenge the evidence breached his right to liberty under Article 5(4) ECHR (because he had been detained pending his deportation) and his right to an effective remedy under Article 13 ECHR. The court said, ‘there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice’.((Chahal, ibid, paras 130-131))
How has the Chahal decision affected the government’s counter-terrorism policy?
The Chahal decision has had a lasting impact on the use of deportation as a counter-terrorism measure in the UK. First, it led Parliament to pass legislation in 1997 replacing the internal Home Office review panel with an appeal in national security cases to an independent judicial trial, the Special Immigration Appeals Commission or ‘SIAC’. Controversially, however, the 1997 Act also introduced the use of special advocates – a special, security-cleared lawyer appointed to represent an appellant in ‘closed’ hearings, involving intelligence material which the Home Secretary is unwilling to disclose to the appellant and his or her lawyers. Special advocates act on behalf of appellants in closed hearings but are forbidden from discussing the closed evidence with them, which means that they effectively act for the most part without proper instructions from their client.
In an unusual way, the Chahal decision also helped to shape the government’s response to 9/11. Because Article 3 ECHR cannot be derogated from, even in times of emergency, the rule in Chahal prevented the government from deporting foreign nationals it suspected of involvement in Al-Qaeda-related terrorism back to countries where they faced a real risk of torture. Instead, the government derogated from the right to liberty under Article 5(1)(f) ECHR, in order to detain indefinitely the suspects in the UK under Part 4 of the Anti-Terrorism Crime and Security Act 2001. In December 2004, however, the House of Lords in A and others v Secretary of State for the Home Department(( UKHL 56 ))held that the government’s derogation from Article 5 ECHR was unlawful, because there were less restrictive measures that could be taken in respect of foreign terrorist suspects, and because the use of indefinite detention against foreign nationals was discriminatory (because UK nationals who were suspects were not subject to any restriction). This judgment, in turn, led the government to introduce the use of control orders (which apply to UK nationals and foreign nationals alike) under the Prevention of Terrorism Act 2005.
Since the 7/7 bombings, the government has announced a renewed determination to use deportation as a counter-terrorism measure. It is intervening in Ramzy (see Why is it in the news? above) to argue, in effect, that the decision in Chahal should be overturned. It is also seeking to evade the rule in Chahal by negotiating memoranda of understanding with governments known to use torture against their citizens. By securing diplomatic assurances from these countries, the government hopes that it will be able to convince SIAC that suspects deported under such assurances will not face a real risk of torture or other ill-treatment contrary to Article 3 ECHR. So far, it has concluded memoranda of understanding with Jordan and Libya and has been in negotiations with Algeria and Morocco.
Are diplomatic assurances effective in minimising the risk of torture?
No. In the 2003 case of Agiza v Sweden, the UN Committee Against Torture found that the Swedish government was in breach of its obligations under the 1984 UN Convention against Torture when it returned two asylum seekers to Egypt on the basis of assurances that they would not be tortured and it subsequently emerged that those assurances were breached.
As the UN Special Rapporteur against Torture has noted, governments such as Algeria, Libya and Jordan have all signed the Convention against Torture and yet there is ample evidence to show that these governments continue to engage in torture. If such governments cannot honour their obligations under international conventions, what reason is there to believe that they will honour bilateral agreements with the UK? In any event, the memoranda of understanding offer no safeguards or mechanisms that protect the rights of individuals who are returned and then are subsequently tortured.
What other steps has the government taken?
The government has also taken various steps to broaden the category of people who may be subject to deportation. This includes consulting on the kinds of activities which the government considers to be ‘non-conducive’ to the public good (eg ‘glorifying’ terrorism). Under section 56 of the Immigration, Asylum and Nationality Act 2006, it has also greatly expanded the power of the Home Secretary to strip dual nationals of their UK citizenship, which would leave them open to being deported.
Is deportation an effective counter-terrorism measure?
The government maintains that deportation is an effective way of disrupting the activities of suspected terrorists in the UK. However, the committee of Privy Counsellors appointed to review the Anti-Terrorism Crime and Security Act 2001 noted that: ‘Seeking to deport terrorist suspects does not seem to us to be a satisfactory response, given the risk of exporting terrorism. If people in the UK are contributing to the terrorist effort here or abroad, they should be dealt with here. While deporting such people might free up British police, intelligence, security and prison service resources, it would not necessarily reduce the threat to British interests abroad, or make the world a safer place more generally’.
Where can I get more information?