Immigration, Asylum and Nationality Bill

moved Amendment No. 25:"Page 4, leave out lines 33 to 35." The noble Lord said: I believe that Clause 7 is one part of the package announced by the Home Secretary to deal with the terrorist attack on 7/7 and subsequently inserted as a new clause in the Bill in another place. The majority of the Home Secretary’s proposals appear at the end of the Bill under the heading ““Miscellaneous””, but the proposal on appeal rights was placed in this part of the Bill. Therefore, Clause 7 is separated from its wider context, which of course includes the Terrorism Bill, and from its immediate context—the provisions in this Bill on national security. In Committee in the Commons, it was taken with the other national security clauses and, on Report, it was not debated at all. The clause has now been considered by the Joint Committee on Human Rights, in its third report of the 2005 Session, which was printed on 28 November. Amendment No. 25 ensures that an appeal against removal on the ground that a person should be recognised as a refugee is to be heard in the United Kingdom before the person is removed to his country of origin. It gives effect to the JCHR’s recommendation in its report Counter-Terrorism Policy and Human Rights that an in-country right of appeal on asylum grounds should be preserved. The Government, on the other hand, assert that the person concerned ought to be denied the right to be considered as a potential refugee. That point was made in one of Mr McNulty’s statements made in the Commons Standing Committee:"““The Secretary of State’s decision to certify that removal would not breach the European Convention on Human Rights cannot however be appealed from within the UK on asylum grounds as a person who is a national security threat is excluded from the protection of the Refugee Convention””.—[Official Report, Commons Standing Committee E, 27/10/05; col. 299.]" That is precisely the point. But as the JCHR pointed out, this,"““presupposes the correctness of the Secretary of State’s certificate that the person is a national security threat””." We will debate exclusion when we reach Clause 52, but at this stage noble Lords may wish to remind themselves that the 1951 convention obliges states not to refoule a refugee—a person at risk of persecution on return—and that a person can be excluded from recognition as a refugee only on certain limited grounds such as that they committed crimes against humanity or acts contrary to the purposes and principles of the United Nations. Even if a person is not excluded from recognition as a refugee, as detailed in Article 33(2) of the 1951 convention, in exceptional circumstances,"““a person 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””," is not protected by the non-refoulement provisions. The convention thus enables a state to withhold protection from a person who does not deserve it or who threatens national security, but it presupposes that either there are objective reasons for concluding that a person falls within one of the exclusion classes or the allegation that he is excludable within the convention is capable of being judicially tested. In the case of a particularly serious crime, as noble Lords will remember, the Government listed what the offences in question were in the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. Although at the time we criticised some of the details of that order, we had to accept that Parliament agreed with the Government in their interpretation of that part of the exclusion wording in the convention, and that the list of offences was valid within the limits of our obligations under that convention. But here we are being asked to agree that by the fiat of the Secretary of State in the certificate, a person is to be denied the right to contest the allegations on which his exclusion is based, and this we do not accept. Since there is almost certainly to be an in-country hearing on human rights anyway, there can be no argument for this process on the grounds of extradition. I hope that now the Government have had time to consider the advice of the JCHR, they will give in gracefully on this amendment. The effect of Amendment No. 26 would be that the appeal against removal on the grounds that such a return would breach the appellant’s right not to be subjected to torture on return will be heard before the asylum and immigration tribunal, not before SIAC, while the out-of-country national security case will be heard before SIAC. That allows us to demonstrate that appeals under Clause 7 constitute a two-stop process contrary to the principle which has been laid down many times by the Government in our discussions on the Bill. In Standing Committee in another place, the Government reaffirmed that they would not export risk, yet that is exactly what they are doing here. People leave the UK before it has been determined whether they are a threat to this country and, if so, whether they ought, for example, to be arrested and prosecuted in this jurisdiction. Amendment No. 26 is probing in nature and invites the Government to confront the fact that hearing the national security case after the applicant has left the UK is indefensible because it exports risk. It cannot work because it is not possible to divide the human rights and the national security evidence in the case, and because it creates a two-stop appeal process entailing duplication and expense. We say that almost invariably the human rights case is inseparable from the national security issues. It may be the very fact that the case involves national security that, coupled with the disclosed evidence in the human rights case, puts the individual at risk in his own country. If all or any of the national security information is in the possession of the applicant it may well be aired in his or her own evidence in the human rights appeal, resulting in substantial repetition between the in-country and overseas hearings. If the information is in the possession of only the Secretary of State, the situation is even worse because the person will have been returned to his or her own country at the point when the information that put him at risk of torture from his government is disclosed; and thus he would have no protection. The UK may also discover too late that this is someone who should have been tried and prosecuted for the protection of the UK and the international community rather than being allowed to leave our jurisdiction. SIAC appeals are expensive to administer and offer less protection for the rights of the appellant than appeals before the AIT. If an appeal does not need to go before SIAC it should not be there. With these two amendments we are also discussing the Question that Clause 7 stand part. Here we oppose the principle that a national security case against an appellant is to be heard out of country, with only the other human rights implications of return being dealt with before the person leaves the UK. We want to retain the status quo whereby the whole case is heard prior to removal, in accordance with the Government’s approach everywhere else in this Bill of moving to a one-stop process. The Minister made the extraordinary statement in Standing Committee that:"““The new clause is designed to streamline the process of appeals against deportation orders in national security cases””.—[Official Report, Commons Standing Committee E, 27/10/05; col. 298.]" It clearly does nothing of the kind. For that reason only, if no other, it should be removed. We also agree with the policy that was originally stated by the noble Lord, Lord Filkin, during the proceedings on the 2002 Act, and I can imagine before that as well, and which was reaffirmed by Mr McNulty in Standing Committee that,"““we shall not use the powers to export risk””.—[Official Report, Commons Standing Committee E, 27/10/05; col. 271.]" Yet that is exactly what this clause would do if we leave it in the Bill. The person is sent back, and only then is the question of whether they are a risk to the security of the UK examined. Perhaps I may conclude by giving the outline of one deportation case under existing law, where the appeal to SIAC covered both human rights and security issues. The evidence disclosed by the Secretary of State against the appellant—I will call him ““Mr Ahmed””, but I will give the Minister his Home Office reference later because I do not want to disclose his identity; it would not be proper for me to do so—was that he was believed to be an associate of al-Qaeda supporters. In other words, he was not alleged to be a supporter of al-Qaeda, but merely an associate of people who were the supporters of that organisation. He was suspected of being involved in terrorist offences in his own country. He denied all these allegations and argued that, having been labelled as a suspected terrorist, he would be at risk of torture if sent back. A few days before the SIAC hearing the Secretary of State withdrew the decision to deport him, accepting that he would be at risk of torture. The national security and human rights aspects of the case were closely interlinked, but without the open evidence on the national security aspects the Article 3 case could not have been made, and the risk of torture would not have been examined. Under this clause Mr Ahmed would have been returned to his country, where the national security case would have been disclosed and the risk that Mr Ahmed would have been tortured, which has now been acknowledged by the Government, would have materialised. I beg to move.