Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum submitted by Nicholas Blake QC

The Proposals:

  1.  In this submission, I examine three proposals mooted by the Home Secretary as part of the legislative response to the events of September 11. These are:

    (i)  excluding terrorists from consideration for refugee status;

    (ii)  removing the power of judicial review of decisions of the Special Immigration Appeals Commission;

    (iii)  detaining indefinitely those considered to be a threat to national security but whom cannot be removed because of the terms of Art 3 of the ECHR, even if this requires a derogation from Article 5 of the ECHR.

  2.  These measures are said to be necessary to deal with "those suspected of terrorist acts who seek to misuse our asylum and immigration systems". The difficulty always in such cases is to distinguish between legitimate use of rights and the alleged abuse of them, frequently the evidence of the alleged abuse, is merely the successful and appropriate reliance on these rights to prevent abuse of power by the executive. I attach to this submission as Annex 1 a brief outline of the existing law as the context for this proposals.

Exclusion of Asylum Claims

  3.  It is important for Parliament to be satisfied that any new legislative measures do not go beyond the terms of the Refugee Convention as discussed in the decision of the House of Lords in T. There are three critical requirements:

    (i)  before any exclusion of protection is based on conduct before arrival in the United Kingdom, a person must be guilty of conduct against the principles of the UN or serious non-political crime (see Article 1(F). This means that Rehman criteria of risk to national security are inappropriate. Membership or support of foreign organisations, even those that we would now consider terrorist, cannot engage the exclusion clause by itself. Participation in the planning of atrocities is another matter altogether.

    (ii)  Where exclusion is based on activities in the United Kingdom, the criterion is "danger" to the community. Again this is very different from and narrower than reasons to justify deportation. The power to remove on grounds conducive to the public good: can be exercised in a broad range of cases: to promote cooperation from friendly governments, to deter adherence of a particular cause, to anticipate future dangerousness. The Refugee Convention is only concerned with people who are a direct threat to the host community and its personal security.

    (iii)  There must be an effective judicial scrutiny of this decision. In the former case to determine whether there are reasonable grounds for the conclusion of guilt; in the latter to determine whether there is evidence of danger , and whether there is an effective overall balance between the danger in question and the legitimate concerns of the family and human rights of subject. Where such scrutiny touches on sensitive material it must be done by SIAC.

  4.  Legislation can thus fast track terrorist asylum claims, and can allocate them to SIAC, but it cannot remove them from judicial scrutiny altogether. The essence of the international obligation is that the executive is not judge and jury in its own cause, but has to justify its conduct before another responsible branch of the state.

  5.  Suggested questions to the Home Office:

    (i)  Does the UK intend to abide by its Refugee Convention (RC) obligations?

    (ii)  Will terrorist asylum claims go to SIAC for review?

    (iii)  If not why and how is that consistent with judicial application of RC?

    (iv)  What advantage is there in the exclusion if the Art 3 claim will have to be judicially considered in any event?

    (v)  Who is a terrorist for the purpose of the RC. Is this the same as the Rehman grounds for exclusion?

    (vi)  Is support of a proscribed organisation sufficient to deny refugee claims and how can that be consistent with Article 1 F and the requirement of guilt or commission of a serious offence?

Judicial review of SIAC

  6.   At present the proposal seems to be to abolish the possibility of something that has never been done. It may be that this heralds a more substantial assault on the fundamental principles of judicial protection of human rights, if an alarmist reading of some of the Home Secretary's recent comments is correct.

  7.  There should be close examination of the supposed justification for this proposal. The argument of delay should be treated with particular caution. Delays in the asylum system are almost exclusively the product of Home Office decision making: either it takes years or many months to come to a decision at all, or that the decision is so defective in terms of its reasoning, opportunity to engage the issues, or otherwise that it has to be remitted for reconsideration.

  8.  The High Court itself strongly discourages judicial review if there is an alternative remedy, and interlocutory appeals against decisions of the Immigration Appellate Authority have nearly always been taken by the Home Office itself. Appellants are told wait and see how the eventual decision turns out. It is perhaps of some interest that the three judicial reviews of the Saville Inquiry into the Bloody Sunday events have been instigated and/or supported by the Ministry of Defence, who considered that that distinguished judicial body has given insufficient protection to soldier witnesses. SIAC cases are likely to involve more immediate questions of risk to the appellant.

  9.  The case law is in its infancy and a great many questions about the disclosure of evidence, procedural rulings on who must proof what and how, have the greatest importance on the eventual outcome. It would be premature to exclude all possibility of judicial review before final decision. The courts can and must be trusted to police against abuse of this vital remedy of central importance in regulating the relationship between citizen and executive according to law.


  10.  In reality, it seems that the Home Office would not wish to derogate if a practical solution could be reached to the problem of the person who is a genuine danger to the community (in the Refugee Convention rather than Rehman sense of the word). It is recognised that SIAC confronted the problem in Singh.

  11.  The first question to pursue is why prosecution under the extensive existing legislation is not a solution. It is impossible to be a real danger to the community and not to have committed a criminal offence of one sort or another even if merely inciting, conspiring, procuring such an offence or joining or supporting a proscribed organisation. If it claimed that this is not possible because of sensitivities in the data available to the security forces, then consideration should be given to revisiting Lord Lloyd's second conclusion: use of intercept material in criminal prosecutions. Other western states do it, and the case law on the ECHR has demonstrated that the admission of even unlawful surveillance material does not make trials unfair.

  12.  Lord Lloyd's speech in the House of Lords in the passage of the 1998 Act remains eloquent and relevant to this problem. It should also be noted that foreign witnesses can give evidence on commission without actually coming to the UK, and extensive protections in terms of anonymity and shielding visual or voice recognition from the suspect are available. If there is no surveillance data and no witness willing to testify even in these circumstances that must be at least a starting point as to doubt as to dangerousness.

  13.  The second question, should be within the civil contest of SIAC itself. The very breadth of the term terrorism is unhelpful here. The Home Secretary's victory in Rehman may prove counter productive. Human rights discourse will not permit the indefinite detention without trial of someone whom cannot be deported, and whose "dangerousness" justifying the expulsion itself may be no more than a matter of cautious executive policy seeking to win friends elsewhere that SIAC is powerless to review. The contemporary definition of terrorism or threat to national security can mean everything or nothing, and does not inform the suspect or the general public of the gravamen of the allegation. It may mean that a Kurd is sympathetic to the PKK in Turkey: many if not most Kurds are, similarly Tamils and the LTTE, Kashmiris and the struggle against Indian occupation, etc.

  14.  Is there not a case for a more precise description of unacceptable conduct that will then be proved on a civil balance in SIAC with the flexibility in terms of admissible material. People who are not being expelled, could then be made subject to a restriction order requiring residence, reporting, and other conditions that might be appropriate in the bail context. Even house arrest must be preferable to incarceration. Exclusion for a period from meetings, or political activities may be consistent with human rights and Article 16 of the ECHR.

  15.  Thirdly, instead of exclusions and derogations there may be a case for extending the authority to detain a person who is an immediate danger to the host community even though he/she can not be expelled at present. The trick here is proportionality, and access to a regular review. Frequently the fact of enforcement action and the detention during the proceedings has a significant impact on dangerousness itself. Mr Chahal spent 6½ years in detention fighting his case, and emerged with all the consequences of the labels thrown at him during this time. Whatever he was suspected of doing before this experience, there is no reason to believe that he was likely to do at the end of it. Disruption by the threat of expulsion may itself prove effective and cause a change of heart by the suspect.

  16.  Where it is not and the lesser alternative of restricted release is not available, SIAC should have the power to determine that the suspect be detained for a period not exceeding 12 months for a review of the case, subject to liberty to apply in the event of a change of circumstances. If the risk has by then disappeared then removal can proceed. If not a thorough review of dangerousness, "prosecutability" and the like should be engaged in. If the problem remains as serious as ever then a final period of 12 months may be granted. This is likely to make the maximum time for detention three years in total the equivalent of a five years sentence and ample to disrupt and deter dangerous activity.

  17.  This course would not need derogation from the Convention. If the intent to remove "if possible" persisted throughout this period, and there were regular judicial scrutiny of detention Article 5(1)(f) of the ECHR would be satisfied. Instead of being an "obstruction" to public safety, judicial review is an essential safeguard to give effect to it.

November 2001

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