Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum submitted by Amnesty International

  1.  In the wake of the attacks of 11 September 2001 in the United States, on 15 October 2001 the Home Secretary announced a package of emergency measures which will be placed before Parliament in the near future.

  2.  UK emergency legislation has been of grave concern to Amnesty International since the 1980s. The organisation has documented how provisions of such legislation consistently facilitated serious abuses of human rights. Amnesty International is concerned that some of the measures proposed by the Home Secretary may contravene internationally recognised human rights standards.


  3.  The Government is seeking to derogate from the European Convention on the Protection of Fundamental Freedoms and Human Rights (ECHR) in order to permit the indefinite detention of foreign nationals, who allegedly pose a threat to national security and whom the Government is unable to remove or deport.

  4.  Amnesty International notes that on 15 October the Home Secretary stated that "[t]here is no immediate intelligence pointing to a specific threat to the United Kingdom".

  5.  In view of this statement, Amnesty International calls on the Government to give precise details of:

    —  why it believes that there is a public emergency threatening the life of the nation in the UK;

    —  why it believes that it needs the extraordinary powers, which violate international human rights law, leading to a derogation;

    —  whether those powers are strictly required by the exigencies of the situation.

  6.  The UN Human Rights Committee expressed concern on 2 November 2001 about the Government's proposals to derogate and to adopt "legislative measures which may have potentially far-reaching effects on rights guaranteed in the Covenant" and urged the Government to "ensure that any measures it undertakes in this regard are in full compliance with the provisions of the Covenant ... ".1

Indefinite detention

  7.  Amnesty International is opposed to states detaining people who are considered to be a threat to national security unless:

    —  the people are charged with, and prosecuted for, recognisable criminal offences without delay;

    —  action is being taken to deport within a reasonable period—there must be a realistic possibility of deportation being effected.

  8.  Amnesty International believes that it is a violation of fundamental human rights to detain people who the authorities do not intend to prosecute and whom they cannot deport. People should be charged with a recognisable criminal offence within a reasonable period or released.

  9.  The government has to date not provided evidence demonstrating that any inadequacies which may exist in current criminal laws cannot be rectified to permit prosecution of people whose conduct threatens the UK or for the prosecution of extra-territorial crimes.

  10.  Amnesty International is concerned that people will be categorised as a national security risk or a "terrorist", the effect of which is tantamount to a criminal charge, on the basis of secret and therefore possibly inaccurate or misinterpreted information. This occurred during the Gulf War, when about 90 Arab nationals were detained pending deportation on national security grounds. Amnesty International considered many of them to be possible prisoners of conscience.

  11.  If the Government proceeds with the derogation and the introduction of the proposed measure, then the legislation must contain safeguards that comply with international standards. Such safeguards should include:

    —  the grounds for detention must be specifically related to the emergency situation;

    —  the detainees should be treated in compliance with all human rights standards ;2

    —  the detainees should be entitled to see and challenge all the evidence used to determine whether they are "national security risks" ;3

    —  the emergency law should be temporary, subject to renewal by Parliament;

    —  the Government should be required to publish regularly information about the application of the law, eg how many people are detained and the places of detention.

Exclusion from protection under the UN Refugee Convention

  12.  The Home Secretary stated that he was "looking to take power to deny substantive asylum claims to those who were suspected of terrorist associations".

  13.  "Acts of terrorism" are not expressly included as one of the recognised grounds for exclusion from refugee status under the 1951 Convention relating to the Status of Refugees (UN Refugee Convention). However, such acts are grounds for exclusion when they constitute crimes against peace, war crimes, crimes against humanity, serious non-political crimes outside the country of refuge, or acts contrary to the purposes and principles of the United Nations.

  14.  Nobody should be prevented from lodging an asylum application. Amnesty International believes that a determination to exclude an individual from refugee status in application of Article 1(F) of the UN Refugee Convention should only be made after full consideration of the claim in a fair and satisfactory procedure. A preliminary consideration that someone might fall under the provisions of the exclusion clauses should not hinder the full examination of the claim for asylum. No one should be forcibly removed without having had their individual need for protection assessed. In view of the serious consequences of determining an individual to be excluded from refugee protection, the procedure should comply with all the safeguards provided in human rights and refugee law.4

  15.  The issue of exclusion has been the subject of extensive consultation. As part of the UNHCR's ongoing Global Consultations on International Protection, a meeting of experts took place earlier this year and presented some summary conclusions on the issue of exclusion. One of the clear recommendations coming out of this meeting was the importance of taking a "holistic approach" to refugee status determination, and in this regard determining the inclusion elements of refugee protection before exclusion elements.5

November 2001


  1.  In addition to derogating from Article 5 of the ECHR, the Government may also have to derogate from Article 9 of the International Covenant on Civil and Political Rights (ICCPR). The ICCPR, under Article 4, similarly provides that "in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law..."

  2.  The following safeguards apply to detained people, who:

    —  should be informed immediately of the reasons for the detention and be notified of their rights, including right of prompt access to and assistance of a lawyer, assigned free of charge if necessary; right to communicate and receive visits; right to inform family of detention and place of confinement;

    —  should be brought promptly before a judicial authority to determine the lawfulness of and necessity for the detention and there should be regular periodic reviews thereafter;

    —  should be entitled to challenge their detention [habeas corpus];

    —  should not be detained with people convicted of crimes;

    —  should have effective judicial remedies for those detained, including full reparation for arbitrary detention and other human rights violations;

    —  should be treated in compliance with all human rights standards for conditions of detention.

  3.  Amnesty International has noted with concern that the statute and rules permit the Special Immigration Appeals Commission (SIAC) to receive secret evidence and for the proceedings to take place without the potential deportee or their counsel being provided with the full reasons for the decision to deport or exclude. In addition, these rules permit SIAC to hold all or part of the proceedings in secret, excluding the potential deportee or their counsel. If such in camera proceedings are held, an advocate is appointed to represent the interests of the potential deportee. The advocate, however, may not communicate with the deportee or their counsel, after they have been provided with information about the case, without leave from SIAC.

  4.  Notably that the question of exclusion is not used to determine admissiblity to the asylum procedure, to be informed that exclusion is under consideration and to have the right to be informed of the evidence, to rebut the evidence and to appeal against a decision to exclude on the above grounds.

  5.  The reasons for the inclusion before exclusion were:

    —  Exclusion before inclusion risks criminalising refugees;

    —  Exclusion is exceptional and it is not appropriate to consider an exception first;

    —  Non-inclusion, without having to address the question of exclusion, is possible in a number of cases, thereby avoiding complex issues;

    —  Inclusion first enables consideration to be given to protection obligations to family members;

    —  Inclusion before exclusion allows proper distinction to be drawn between prosecution and persecution;

    —  Textually, the 1951 Convention would appear to provide more clearly for inclusion before exclusion, such an interpretation being consistent in particular with the language of Article 1F(b);

    —  Interviews which look at the whole refugee definition allows for information to be collected more broadly and accurately.

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