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Immigration, Asylum and Nationality Bill

Part of the debate – in the House of Lords at 4:45 pm on 7th February 2006.

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Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs 4:45 pm, 7th February 2006

My Lords, the purpose of the amendment is to maintain the status quo in national security appeals whereby both risk of breach of human rights on return and the national security case are heard before the applicant leaves the UK.

The Immigration Law Practitioners' Association has done a good deal of work and I am grateful for the information and briefing it has supplied to us. These proposals for a variety of measures relating to terrorism were published over the summer months. Many are now part of the Terrorism Bill. On 15 September, the Home Secretary set out draft clauses that would be introduced into this Bill.

It is right that we respond to public concern after the events of 7 July. However, we need to work out the implication of what is proposed in this legislation. It should be emphasised that all the provisions, with the exception of Clause 52, go wider than any current definition of terrorism and cover broad questions of national security and "the public good". They fall to be tested, therefore, not only on the question of whether they are reasonable ways to deal with cases where people pose a threat to national security but also with those convicted or merely suspected of other crimes.

A large number of organisations working in this field are of the view that the case for new legislation in this area has not been made and that the new provisions fail to respect rights and civil liberties. Existing immigration law contains ample powers to deal with those who pose a threat to national security. The debate in Grand Committee was characterised by the Minister sketching extreme cases for which more than adequate provision is already made under existing legislation; and then seeking to use those to contend for an extension of existing powers. All arguments about better provision in the Terrorism Bill are relevant but the clauses introduce a few new problems of their own.

Let me spell those out. Clause 7 provides that if a case raises national security concerns the part of the appeal dealing with whether the appellant's human rights will be breached on return will be dealt with before removal and the part which deals with national security will be dealt with after removal as an out-of-country appeal. This creates a two-stop appeal out of a one-stop appeal. It is wholly at variance with the Government's approach in other parts of the appeal system that we discussed only recently.

In Committee, the Minister said that the new clause is designed to streamline the process of appeals against deportation orders in national security cases. However, it streamlines nothing: it creates a two-stop appeal process, as the Minister acknowledged in Grand Committee. She said:

"Our view is that SIAC is well and best placed to deal with what is, as the noble Lord said, the potential for a two-part appeal".—[ Official Report, 11/1/06; GC 99]

In Committee in the Commons, the Minister of State reaffirmed and supported statements by the noble Lord, Lord Filkin, during the passage of the Nationality, Immigration and Asylum Act 2002: that the person is sent back and only then the question of whether they are a risk to the safety of the United Kingdom is examined; there are powers to prosecute people here, and powers to extradite them. The approach proposed by Clause 7 is, therefore, irresponsible. It may put the applicant at risk. In some cases the risk on return is born from the national security case against the appellant. That the British Government suspect persons of being a threat to national security, whether or not the suspicion is well founded, may be what turns their own government against them. If the British Government provided only details of the national security case once the appellant was back at home, this could put him or her at risk of torture. Those points were all put to the Minister in Grand Committee.

SIAC cannot take into account what it does not know. If it does not know what is the national security case against the appellant, it cannot look at the relevance of this to the risk of torture or other flagrant breaches of human rights on return at the in-country stage of the appeal. One result of Clause 7 is likely to be that people are returned and then tortured. Another will be attempts to raise risk through judicial review challenges before removal.

In other cases, where the national security case is known, it is likely to be rehearsed in detail as part of the human rights case pre-removal; and yet these points cannot be decided. Instead, the evidence must all be considered again at an out-of-country appeal post-removal involving repetition and wasting resources. It will result in the United Kingdom exporting risk. The Government have accepted that this is an effective way of tackling the threat from international terrorism. In practice, it would be difficult or impossible to separate the human rights and national security aspects of the appeal—for example, the threat to the appellant could derive from the national security case against him or her; that is, the fact that he or she has been labelled as a terrorist. This proposal is inconsistent with the general aim of a single appeal. It requires at least two appeals which would often involve the same question and evidence. The clause would result in unfairness for the appellant, who, having been deported, would not be present in the United Kingdom while the national security case against him or her is heard. I beg to move.