Commentary on the Anti-Terrorism, Crime and Security Bill 2001
16 November 2001
Human Rights Watch is deeply concerned that the measures included in the “Anti-Terrorism, Crime and Security Bill” (the bill) introduced by the Home Office on November 13 contravene fundamental European and international human rights guarantees. While we understand the need to enhance internal security in the aftermath of the 11 September attacks in the United States and in the context of on-going armed conflict in Afghanistan, we are dismayed by U.K. proposals that would permit the arbitrary detention of persons suspected of terrorist activity, as well as the denial of the right to seek asylum, the exclusion, and indefinite detention of certain individuals without adequate safeguards contrary to the 1951 Refugee Convention. Public statements by the Home Secretary suggest that a public emergency was declared in the U.K. to avoid compliance with certain human rights obligations—threatening basic rights in the U.K. and providing a dangerous model for other states.
Definition of Terrorism
Clause 21 of the bill would task the Home Secretary with certifying a “suspected international terrorist.” The Home Secretary may certify a "suspected international terrorist" if he believes that the person’s presence in the U.K. is a risk to national security and he suspects that the person is an international terrorist. The definition of a “suspected international terrorist” is vague and over-inclusive. Of particular concern is clause 21(2)(c), which states that a person is a suspected international terrorist if he or she “has links with a person who is a member of or belongs to an international terrorist group.” A “link” with a member of a terrorist group is too tenuous a relationship to signify that a person has been involved in the commission of terrorist activities.
Broad, undefined terms such as “links” could result in findings of “guilt by association” for persons sharing the same political ideology, nationality, ethnicity, social grouping or even family with persons who commit acts of terrorism.
Extended Immigration Detention
Clauses 22 and 23 of the proposed law deal with problems related to removal or deportation of a suspected terrorist. Clause 23 would permit the indefinite detention of foreign nationals suspected of terrorism-related activities who cannot be returned to their own country or to a different country because of practical problems related, for example, to securing proper documentation or because they might be subject to torture or to inhuman or degrading treatment or punishment in violation of Article 3 of the European Convention on Human Rights (ECHR). The bill would require that such persons be detained as national security threats and released only when they no longer pose such a risk or at such time when a country agrees to accept them and protect them from Article 3 violations.
Appeals to the Home Secretary’s certification of a person as a suspected terrorist would have to be made to the Special Immigration Appeals Commission (SIAC) within three months of the certification. The SIAC could cancel a certificate if it disagreed with the Home Secretary’s belief or suspicion, or it could dismiss an appeal if it found in favor of the Home Secretary. The SIAC would also be tasked with reviewing each certificate every six months to determine if the person is still a national security threat and thus subject to the certification. Appeals against a decision by SIAC regarding the initial certification and on-going review of certification could be lodged only on points of law to the Court of Appeal.
It is well-established in European and international law that detention without adequate recourse to effective judicial review by a court or other quasi-judicial body is a violation of fundamental human rights guarantees. The bill’s detention provision would violate Article 5 of the ECHR, which guarantees the right to liberty and security of person. Article 9 of the International Covenant on Civil and Political Rights (ICCPR), provides key procedural guarantees to ensure that no person is detained arbitrarily. Indefinite detention has been determined to be a form of arbitrary detention in violation of these treaties. It is important to note that the prohibition against arbitrary detention has risen to the level of customary law, meaning it is such a fundamental and widely accepted principle that even states that have not ratified regional or international human rights instruments are obliged to observe the prohibition. The United Nations Human Rights Committee, established to monitor compliance with the ICCPR, has determined that Article 9 applies to immigration control measures and other cases where public security is at issue.
Although the proposed bill provides for oversight of the certification and on-going detention of a person suspected of terrorist activity, the U.K. courts have already substantially limited the authority of the SIAC to overrule Home Secretary decisions in terrorist cases. In a May 2000 decision, the Court of Appeal rejected a decision by the SIAC in the case of Shafiq Ur Rehman, a Pakistani national subject to deportation on order of the Home Secretary for involvement with an alleged Islamic terrorist organization. The SIAC ruled that the Home Secretary did not prove that Rehman’s actions were directed against the U.K. or its citizens. The Court of Appeal overturned SIAC’s decision, holding that in any national security case, the Home Secretary was entitled to examine the case as a whole and to make a decision to deport not only on the basis that a person had in fact endangered national security, but that he presented a danger to national security—even if it could not be proved to a high degree of probability that the person had engaged in any individual act that could justify such a conclusion. In October 2001, the House of Lords upheld the Court of Appeal decision stating that decisions in the interest of national security are not for the judiciary, but should be entrusted to the executive.
Thus, although the SIAC is empowered to reject a certification if it does not agree with the Home Secretary’s belief or suspicion about a person, the Rehman case suggests that the SIAC has little effective discretion to overrule the Home Secretary.
Moreover, Human Rights Watch is concerned that SIAC’s operational procedures violate basic due process guarantees. National security certifications could be made by the Home Secretary on the basis of secret evidence that would not be available to the person appealing certification or to her or his counsel. SIAC would also be empowered to hold appeals in camera, without the certified person or his counsel permitted to make representations to the committee. In such closed proceedings, an advocate would be appointed to appear for the certified person. The use of secret evidence in closed proceedings without the ability of the person subject to certification to confront the evidence against him in person with assistance of counsel of his choice violates fundamental due process standards. The absence of such key procedural guarantees coupled with the lack of transparency in SIAC’s proceedings raises further concerns regarding its status as an impartial and effective forum for appeals.
The use of indefinite detention in the absence of basic procedural guarantees—including adequate recourse to appeal against arbitrary detention—violates international human rights law. Administrative detention for reasons of national security should be subject to a substantive and prompt review by an independent judicial or other authority. Moreover, any on-going periodic review of detention should occur at reasonable intervals. Human Rights Watch believes that review at six-month intervals leaves too long a period between evaluations and that reviews should be provided at shorter intervals.
Administrative detainees under states of emergency should enjoy as a minimum the following rights and guarantees:
The bill correctly notes that implementing the extended immigration detention provision would require the U.K. to invoke its ability to derogate from the European Convention on Human Rights (ECHR) under Article 15 and then to derogate officially from Article 5 of the convention.
Clause 30 of the bill would provide for the U.K.’s derogation from Article 5 of the ECHR. Derogation from obligations voluntarily undertaken as a state party to regional and international human rights instruments requires that certain objective circumstances giving rise to a public emergency obtain and that it is necessary for the state party to take exceptional measures to restore order. Article 15 of the ECHR states that:
The European Court of Human Rights has stated that a public emergency is an exceptional state of crisis affecting the entire population and threatening “the organized life of the community.” Any measures taken to meet the challenge of such an emergency must be narrowly tailored “to the extent strictly required by the exigencies of the situation.” Although the court generally affords a contracting state a wide “margin of appreciation” to determine what constitutes an emergency and what measures are necessary to avert it, the court retains oversight of whether a state has departed from its convention obligations only to the extent strictly required by the exigencies of the situation.
Article 4 of the ICCPR also permits derogation from certain convention provisions “in time of public emergency which threatens the life of the nation…[and] to the extent strictly required by the exigencies of the situation.” However, a state’s ability to derogate from the ICCPR is not unlimited. According to the U.N. Human Rights Committee’s interpretation of article 4, “This condition requires that States parties provide careful justification not only for a decision to proclaim a state of emergency but also for any specific measures based on such a proclamation…[T]hey must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measure derogating from the Convenant are strictly required by the exigencies of the situation.” Moreover, the committee states that:
In its concluding observations on U.K. compliance with the ICCPR released this month, the U.N. Human Rights Committee expressed concern that any derogation from the U.K.’s obligations under the ICCPR be in conformity with its international obligations:
The U.K. thus must meet a high burden to show that rights circumscribed under the proposed bill meet the standards of derogation required by the ECHR and under international law.
On November 12, Home Secretary David Blunkett announced that the U.K would officially declare a “state of emergency” thus permitting it to derogate from certain provisions of the ECHR. Blunkett assured the public that the declaration was a legal technicality—necessary to ensure that certain anti-terrorism measures that contravene the ECHR could be implemented—and not a response to any possible imminent terrorist threat. In a statement to parliament on October 15 announcing the broad outlines of the emergency anti-terrorism measures, Blunkett stated that “[t]here is no immediate intelligence pointing to a specific threat to the United Kingdom.” These public pronouncements raise the concern that the U.K. is seeking to derogate from its human rights obligations in the absence of conditions amounting to a bona fide state of emergency.
Human Rights Watch urges the U.K. to justify any derogation from the ECHR and the ICCPR according to the substantive and procedural requirements of ECHR Articles 15 and ICCPR Article 4—and in the absence of any sufficient justification, decline to legislate a derogation.
Refugee Protection and the Right to Seek Asylum
Human Rights Watch believes that clauses 33 and 34 of the bill would unduly restrict the individual right to seek asylum and violate international standards of refugee protection. These clauses would empower the Home Secretary to make a determination that an individual does not have the right to substantive consideration of his or her application for asylum if the Home Secretary considers that Articles 1(F) or 33(2) of the Refugee Convention apply. Article 1(F) of the Refugee Convention contains the so-called “exclusion clauses” and ensures that perpetrators of gross human rights violations (e.g. war crimes and crimes against humanity), serious non-political crimes outside the country of refuge, and acts contrary to the principles of the United Nations are excluded from refugee status. Article 33(2) allows for the return of a refugee who is considered a danger to the national security of a country and is the only exception in the Refugee Convention to the fundamental principle of nonrefoulement that protects refugees from return to a country where their life or freedom would be threatened.
Given that the bill’s definition of a terrorist suspect extends to those who have “links with a person who is a member of or belongs to an international terrorist group”, it appears that the bill would empower the Home Secretary to exclude from refugee status and detain as national security threats refugees who have had no direct involvement with terrorist activities. As such, the bill contravenes both the spirit and the letter of the Refugee Convention.
Article 1(F) of the Refugee Convention
The Refugee Convention’s exclusion clauses are of an exceptional nature and should be applied strictly and in full accordance with their terms. Article 1(f) indicates a high evidentiary standard (“serious reasons”) and the requirement that the crimes were committed by the individual being considered for exclusion prior to reaching a country of asylum—not simply by an organization or other individual with which the asylum seeker might be associated. Article 1(F) does not refer to any perceived future threat as sufficient grounds for exclusion.
Clause 33(1) of the draft bill empowers the Home Secretary to issue a certificate excluding a person from refugee status for activities that are not excludable offenses under the Refugee Convention—for example, association with a member of a terrorist organization or the perceived future national security threat posed by an individual rather than past criminal activity. Due to the nature of the appeals process provided in the bill, SIAC’s review of a certification may be based on incomplete information regarding an asylum seeker’s past activities since only the information used by the Home Secretary to certify a person as a suspected terrorist can be considered by the committee.
Human Rights Watch believes that, given the grave consequences that the denial of refugee status may have, exclusion should only be considered following a full review of all the facts pertaining to an individual’s application for asylum. Such an approach is consistent with the U.N. High Commissioner for Refugees guidelines on the application of the exclusion clauses and with more recent interpretations decided during the UNHCR Global Consultation on International Protection discussions on exclusion in May 2001. That is, they are presumed to apply after a determination of refugee status is made to ensure that an individual’s circumstances are considered in full.
The fundamental principle guiding the Refugee Convention’s protection mandate is the presumption of inclusion on the basis of a full review of all the relevant facts surrounding an individual’s asylum claim before evidence is adduced of past criminal activity that would exclude an individual from being granted refugee status. This process is intended to cull all relevant facts from an asylum seeker’s past—for example, false criminal charges against an asylum seeker as a result of systematic discrimination or persecution of a political or ethnic group to which the individual belonged. In this way, evidence of alleged past criminal conduct can be fully reviewed to determine the authenticity of such charges or allegations and to evaluate whether or not such charges or allegations were part and parcel of the same type of persecution that the asylum seeker would face if he or she were returned to his or her country.
The U.K. bill would reverse the “inclusion before exclusion” approach advocated by UNHCR. Rather, it would empower the Home Secretary to deny protection as a matter of first course, without benefit of a full determination of an individual’s asylum claim. This provision threatens to undermine the Refugee Convention’s protection mandate.
Article 33(2) of the Refugee Convention
The guiding principle underpinning international refugee protection standards is the prohibition against refoulement, enshrined in Article 33(1) of the Refugee Convention which states that no convention party “shall expel, or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” The principle of nonrefoulement applies both to direct return to a particular country and to indirect measures that may effectively return a refugee to a country where his life or freedom would be threatened.
Under the Refugee Convention, the only instance in which a host country could expel a refugee who has not been excluded from refugee protection under Article 1(F) and return him to a place where his life or freedom would be threatened is under Article 33(2). Article 33(2) states that protection against refoulement “may not be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” The two qualifications included in this provision require a direct link between the presence of the refugee within a territory and an existing national security threat to that country, and thus do not apply to a past political crime that does not endanger the security of the country of asylum. Therefore, a refugee is still protected against refoulement if he does not constitute a threat to the security of the country of asylum.
It is important to note that Article 33(2) of the Refugee Convention would generally apply to a person who has already been recognized as a refugee in the country of refuge. The consequences of overruling nonrefoulement protections are so serious that it would necessarily require a full and fair assessment of an individual’s fear of persecution before Article 33(2) could be applied. However, clauses 33 and 34 of the proposed bill would deny a full determination of refugee status in favor of a certification procedure for those suspected of terrorist activities. Human Rights Watch believes that it is not appropriate to make a certification when it is clear that the application of Article 33(2) requires an individual assessment. Moreover, an individual’s fear of persecution should always be balanced against the possible threat to national security. Clause 34 of the bill would raise particular concern as it prevents the SIAC from balancing an individual’s fear of persecution if returned to his own country against the government’s perceived threat to national security, an approach strongly advocated by the UNHCR.
Moreover, recent jurisprudence from the European Court of Human Rights in the case of Chahal v. United Kingdom, held that certain procedural guarantees enshrined in Article 32(2) of the Refugee Convention—which governs the expulsion of a refugee from the country of asylum on national security grounds—should also apply to those potentially subject to refoulement under Article 33(2). Article 32(2) provides that “Except where compelling reasons of national security otherwise require, the refuge shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before a competent authority” and the refugee shall be permitted a reasonable time period within which to seek legal admission into another country. The same procedural guarantees should pertain to any decision to certify a recognized refugee as a suspected terrorist under Article 33(2).
Asylum Appeal Rights
All of these proposed restrictions on asylum rights would be compounded by clause 33(8) of the draft bill which restricts the right of appeal to a higher court for persons certified by the Home Secretary to pose a threat to national security when the SIAC has upheld that certification. Appeal in such cases would be permitted only on a point of law, thus essentially requiring the court to accept the facts as presented by the Home Secretary. Such a narrow right of appeal would prevent any higher court from examining the substantive part of a person’s asylum application or the factual and evidentiary issues regarding the SIAC’s decision to uphold a certificate. The Home Secretary also loses the right to appeal should a certificate be quashed by the SIAC, but the draft bill would allow the Home Secretary to issue another certificate under clause 27(9) “on the grounds of circumstance or otherwise.” Given the complex nature of an asylum application, particularly one in which issues of national security are considered a factor, all facts, not just those presented by the Home Secretary should be subject to judicial scrutiny in any appeals process. Denial of the possibility of further appeal unduly disadvantages the asylum seeker or refugee.
Right to Seek Asylum
The Universal Declaration of Human Rights (UDHR) states in Article 14 that “everyone has the right to seek and enjoy in other countries asylum from persecution.” The preamble to the 1951 Refugee Convention requires states to have regard for the UDHR when interpreting the convention’s provisions. The right to seek asylum has been increasingly at risk in recent years both in the U.K. and the E.U. as a whole. A range of border control measures—visa requirements, security checks, and other barriers to entry—often effectively prevent persons from applying for asylum. The right to seek asylum is violated, often together with the principle of nonrefoulement, when individuals cannot access fair and impartial asylum determination procedures.
Human Rights Watch believes that denial of full and fair asylum determination procedures under the proposed certification procedure; use of the exclusion clauses and Article 33(2) of the Refugee Convention to justify keeping people out, expelling them, or detaining them indefinitely; and the severe restrictions on appeals against the bill’s proposed procedures further restrict the right to seek asylum. These measures represent a departure from established refugee protection standards and undermine the purpose and intent of the Refugee Convention. It is particularly ironic that in the year the U.K. marks the 50th anniversary of the Refugee Convention and prepares to meet with other State parties in Switzerland next month to reaffirm its commitment to upholding the convention, it at the same time introduces legislation that seeks to weaken its obligations under this treaty.
 Article 3’s prohibition against ill-treatment is absolute in expulsion cases. Whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another country, a contracting state must protect him or her against such treatment in the event of expulsion (see Chahal v. United Kingdom, 70/1995/576/662, 15 November 1996; Soering v. United Kingdom, 1/1989/161/217, A161, 7 July 1989; Vilvarajah and Others v. United Kingdom, 45/1990/236/302-306, A215, 30 October 1991). In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by ECHR Article 3 is thus wider than that provided by Articles 32 and 33 of the 1951 U.N. Convention on the Status of Refugees (see section below on refugee protection).
 Under the U.K.’s current immigration laws, detention can only be used when there is an on-going removal proceeding in process and only for a “reasonable” amount of time.
 The SIAC was established by act of parliament in 1997 to hear immigration appeals in cases of removal where deportation is deemed “conducive to the public good.”
 Under Article 5 of the European Convention on Human Rights, foreigners can be detained only if a process with a view to deportation has commenced and is on-going. As well, the domestic law authorizing such a deprivation of liberty must be of sufficient quality to avoid the risk of arbitrariness; that is, it must—among other things—offer recourse to effective judicial review and provide set time limits for the duration of the detention. See Amuur v. France, 17/1995/523/609, Reports 1996-III, 25 June 1996.
 The U.K. is a party to the ICCPR. See also the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, General Assembly Resolution 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988). The principles require that a person be informed promptly of any charges against him; prompt judicial review of legality of the detention; and commencement of trial within a reasonable time.
 United Nations Human Rights Instruments, The Human Rights Committee’s General Comment No. 15, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.4, February 7, 2000, p. 88, para. 1. General Comment No. 15, “The Position of Aliens under the Covenant,” states that once an alien is on the territory of a member state, he enjoys most of the rights guaranteed by the ICCPR without discrimination based nationality or statelessness. These rights include “the full right to liberty and security of the person” and “if lawfully deprived of their liberty, they shall be treated with humanity and with respect for the inherent dignity of their person.” Ibid., p. 98, para. 7.
 The legislation fails to note, however, that the U.K. must also derogate from the ICCPR, invoking Article 4 to derogate officially from the provisions of Article 9.
 Lawless v. Ireland, 332/57, A3, 1 July 1961.
 Brannigan and McBride v. United Kingdom, 5/1992/350/423-424, A258-B, 26 May 1993
 U.N. Human Rights Committee, General Comment No. 29
 Ibid., para. 11.
 U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee on the Fifth Periodic Report Submitted by the United Kingdom of Great Britain and Northern Ireland, CCPR/CO/73/UK, November 2001.
 Matthew Tempest, “The Issue Explained: The State of Emergency,” The Guardian, 12 November 2001.
 Hansard’s, Column 925, 15 October 2001.
 See “UNHCR Note on the Exclusion Clauses,” (EC/47/SC/CRP.29).
 See “Summary Conclusions—Exclusion from Refugee Status,” Lisbon Expert Roundtable, Global Consultations on International Protection, EC/GC/01/2 Track/1, 30 May 2001.
 UNHCR guidelines are considered authoritative interpretations of the convention’s provisions. Although the guidelines are not legally binding, the U.K. is obliged under Article 35 of the Refugee Convention to facilitate UNHCR’s supervision of the convention’s application.