Immigration, Asylum and Nationality Bill

I am grateful to the noble Lord for giving me the opportunity to talk a little more about the purposes behind Clause 7. He is absolutely right that it springs from the consideration of what further we were able to do to protect our citizens and to deal with issues of terrorism. Clause 7 is designed to try and speed up removal where a decision to make a deportation order is certified by the Secretary of State as having been taken on the grounds of national security. We believe it is important to make the system work efficiently and effectively. These are of course highly sensitive cases. Our view is that any appeal against such a decision should only be exercised following removal from the United Kingdom. The exception to that is where the party affected by the order claims that his removal would breach his rights under the European Convention on Human Rights. In such cases, as the noble Lord indicated, the appeal will be heard prior to removal save where the Secretary of State certifies that removal would not breach the proposed deportee’s human rights. To ensure compatibility with our international obligations, the clause also makes provision for an in-country right of appeal to SIAC against any decision by the Secretary of State to issue such a certificate. We believe that that will ensure that any human rights issues raised by a proposed deportee will be fully considered prior to removal. On Amendment 25, as the noble Lord said, the clause deliberately does not provide an in-country right of appeal on asylum grounds. A person who is a national security threat is excluded from the protection of the refugee convention. Even if the person is a refugee, Article 33.2 of the convention allows their expulsion from the country of refuge if they threaten its national security. The particular issue that the noble Lord raised is answered by what happened in the Ullah judgment, with which I am sure he is familiar. Perhaps I can take a moment of the Committee’s time to explain the relevance of the case. The case involved a claimant who entered the United Kingdom from Pakistan and applied for asylum, claiming to have a fear of persecution because of his religious beliefs. The claim was refused and the appeal dismissed on the basis that the claimant did not have a well founded fear. The applicant also argued that removal would give rise to a breach of his right to freedom of religion under Article 9 of the European Convention on Human Rights. The relevance of Clause 7 is that the House of Lords, in considering the issue, found that where removal of an individual from the United Kingdom would result in treatment in the receiving state that would amount to a flagrant breach of any other article of the European Convention on Human Rights, such as to amount to a complete denial of the right in question—as was being argued in this case—it would be possible for removal to breach the sending state’s obligation under the convention, notwithstanding that the treatment in the receiving state would not breach Article 3. The judgment now ensures that there are no circumstances in which a person could be returned in compliance with the European Convention on Human Rights but in breach of the refugee convention. Prior to the Ullah judgment, of course, it could be argued that there were certain sorts of persecution that fell outside the scope of Article 3. We believe that, in this part of the Bill, because of the way in which the House of Lords determined that judgment, there is no question but that the issues are effectively covered and that there is not a gap, if I may describe it as such. The protection afforded by the ECHR is sufficiently wide to ensure that, where removal would not breach our obligations under that convention, it would also be compatible with the 1951 refugee convention. I will, of course, send the noble Lord more details of the judgment if that would be of use, but that is the basis on which the clause is framed as it is on that particular aspect. Of course, Clause 7 already provides for a full out-of-country appeal against the decision to make the deportation order. Any claim to refugee status can be considered at that stage. With Amendment No. 26, the noble Lord raises the question whether the Asylum and Immigration Tribunal, rather than SIAC, should hear any appeal. 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. I believe that, in these circumstances, that is the right way forward. SIAC has the expertise to do that effectively; it would not necessarily need to consider the national security case in any appeal against a decision by the Secretary of State to certify that removal would not breach the ECHR. It is also our view that SIAC would hold the part of the appeal against the certification in open session. Because SIAC also deals with the other issues, it would be the appropriate place to determine all these questions. It already has considerable expertise in dealing with human rights issues at appeal. It is a court of superior record, with a distinguished judge, Mr Justice Ouseley, as its president. Its membership includes legally qualified members or former members of the AIT. We believe that it is the appropriate place for such a hearing. It also has a smaller volume of cases than the AIT, which could be important in those cases. We think therefore, that that is the appropriate approach. I hope that, with my description of what happened with the Ullah case, I have dealt with Amendment No. 25. On Amendment No. 26, we think that it is much better for the process to be handled by SIAC, which could take all the questions into account, including that which the noble Lord raised about exploitation of risk. We must recognise that, although we can prosecute, that is our preferred option. We have control orders and a variety of available measures, of which this would be one. We are in dialogue with other countries about dealing with terrorists. I am sure that that would be a pertinent part of the discussion. Underlying one of the concerns, as applied in the case that the noble Lord cited, was that somebody having had this raised would then be in danger. SIAC can take that into account in its considerations. I hope that I have answered that as fully as I can and that the noble Lord will be able to withdraw his amendment.