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As the Home Secretary said in her statement to the House on extradition issues on 16 October, and again in her statement about Abu Qatada on 12 November, it takes too long to remove foreign nationals who pose a threat to national security. This new clause intends to limit the circumstances in which national security related deportations attract in-country rights of appeal on human rights grounds. The provision will take away an appellant’s right to have his substantive appeal against deportation heard in country where the Secretary of State certifies that removal prior to his appeal being finally determined would not breach the UK’s obligations under the European convention on human rights.
The Secretary of State may certify in particular on the grounds that the applicant’s human rights claim is clearly unfounded, or that the individual would not face a real risk of serious, irreversible harm if we moved before the appeals process is exhausted. The clearly unfounded test is well established as it is already set out in section 94 of the Nationality, Immigration and Asylum Act 2002. The test of serious irreversible harm is that used by the European Court of Human Rights when deciding whether to issue a rule 39 direction to suspend removal from a country prior to its substantive consideration and appeals against deportation or removal.
The new clause also implements the approach that the European Court of Human Rights has adopted in its jurisprudence on when domestic regimes must grant in-country appeals. On 13 December 2012, the Grand Chamber of the European Court of Human Rights confirmed, in its judgment in de Souza Ribeiro v. France, that there must be a suspensive appeal in cases where there is a threat to life or risk of torture, but in cases raising issues as to family or private life, a suspensive appeal is not always required. Appellants will have a right to appeal to the Special Immigration Appeals Commission for the certificate to be set aside. The intention is that SAIC would review such an application fairly but expeditiously.
As national security deportation cases often involve human rights claims, where it is alleged that individuals may face the risk of torture or worse on return, there are significant constraints on our ability to deport before an appeal is heard in the UK. The Government take deportation action only ever when they consider it lawful to do so and would not deport if they thought that there was a real risk that the person would be tortured on return. However, we accept that deportees are entitled to challenge that assessment. Moreover, we think it right that they are able to do so before being deported, as an appeal on the basis that one would be tortured is worthless if, in practice, the person has been deported and tortured before the appeal is heard.
Nevertheless, the new clause will support our ability to deport in future cases, in particular, where individuals raise less fundamental human rights issues, such as the right to a private life, or if their human rights claim is unfounded. For example, a person may suffer no serious irreversible harm in being away from their family for a few months while they appeal, even if they claim that permanent deportation would be contrary to the right to family or private life. The person will still have an appeal, and if they win they will be able to return to the UK. Nevertheless, having the individual out of the UK pending the appeal could be of real benefit in the context of the relatively small number of national security deportation cases. This measure is one of a number of reforms being explored by the Home Office and Ministry of Justice to support the Government’s ability to deport foreign national terrorists more quickly than at present. As such, I commend it to the Committee.