Immigration, Asylum and Nationality Bill

My Lords, I wish to speak to government Amendment No. 48, which inserts a new clause after Clause 52. It replaces the other provision in Clause 52 and also repeals and replaces Section 33 of the Anti-terrorism, Crime and Security Act 2001. Section 33 applied only in national security cases considered serious enough that they should be heard before the Special Immigration Appeals Commission—SIAC. The new clause will apply similar provisions to asylum appeals which do not meet this level of seriousness. It is no good the Government seeking to justify this clause by referring to cases raising serious national security concerns. Those cases undoubtedly will go to SIAC. Under Section 97 of the Nationality, Immigration and Asylum Act 2002, cases are sent to SIAC if the Secretary of State, acting in person, certifies that the decision appealed was taken wholly or partly on the basis that the person’s exclusion or removal from the United Kingdom would be in the interests of national security, or in the interests of the relationship between the United Kingdom and another country; or where the decision was taken on the basis of information that in the opinion of the Secretary of State should not be made public in the interests of national security, in the interests of the relationship with the United Kingdom and another country or otherwise in the public interest—maybe the interest of national security. What examples can the Minister give of the people at whom this clause is aimed, since it is not aimed at those who raise national security concerns? How can the Minister justify using a procedure previously reserved for national security cases in such cases? My noble friend Lord Avebury raised the information supplied by the UNHCR. It has provided detailed criticism of the way in which the Government have interpreted Article 1F in the clause, which makes clear that the use of the definition of terrorism in the 2001 Act is a misinterpretation of that article. It notes:"““the assertion in Security Council resolutions that an act is ““terrorist”” in nature would not by itself suffice to warrant the application of Article 1F(c), especially, as there remains no universally accepted legal definition at the international level””." In UNHCR’s view, only"““persons who are in positions of power in their countries or in State-like entities””," And,"““in exceptional circumstances, the leaders of organisations carrying out particularly heinous acts of international terrorism which involve serious threats to international peace and security””" are persons who could act contrary to the principles and purpose of the United Nations and fall within 1F(c). So, the clarity is already there. Article 1F(c) envisages acts of such a nature as to impinge on the international plane in terms of gravity, international impact and implications for international peace and security. The Government attempt to justify the new clause by reference to Security Council resolutions, as the Minister did both in Committee and in her letter of January 2006 to the House of Lords Constitution Committee, but we do not believe that that stands up to argument. In Committee in the House of Commons, the Minister of State noted that there had been 32 exclusions under the whole of Article 1F in 2004. He accepted that they could not point to any cases where the absence of the clause had led to a person being recognised as a refugee who should not have been so recognised. Such a case is not going to be found among the cases that do not pose sufficient threat to warrant their going to SIAC, and thus the justification for the new clause appears weak. There are two other issues. In paragraph 179 of its third report, the Joint Committee on Human Rights said:"““To give effect to the Government’s stated purpose of merely making explicit what Article 1F(c) implicitly requires, the clause would need to be amended to decouple it from both the broad definition of ‘terrorism’””—" in Section 1 of the Terrorism Act 2000—"““and the published list of unacceptable behaviours in its present form””." Secondly, the House of Lords Constitution Committee, in the letter of 13 December, said:"““We share the view of others that it is not appropriate for Parliament acting unilaterally as a national legislature to reinterpret in this way an international treaty to which the UK has become a party.””" In response, the Government cited two examples of their doing so: Section 72 of the Nationality, Immigration and Asylum Act 2002, which purports to interpret the meaning of ““particular serious crime”” under Article 33(2) of the refugee convention, and Section 31 of the Immigration and Asylum Act 1999. All that is at odds with the convention’s objective and purposes. Moreover, it runs counter to the longstanding understandings developed through state practice over many years regarding the interpretation and application of Article 33. We see no good reason for including Clause 52 in the Bill and very good reasons for not doing so.