JCWI News

Deportation and Anti-Terrorism

Exclusion or deportation from the UK on non-conducive grounds
Consultation - JCWI's Response

The Joint Council for the Welfare of Immigrants is an independent, voluntary organisation working in the field of immigration, asylum and nationality law and policy. Established in 1967, JCWI actively lobbies and campaigns for changes in law and practice and its mission is to eliminate discrimination in this sphere.

In responding to this consultation we are mindful of the heavy burden on the Home Secretary to ensure that the security of the UK population is protected, particularly in the wake of the recent terrorist attacks on July 7 2005. We are also mindful of the right to freedom of expression under Article 10 ECHR and the restrictions that are permitted on Article 10 to enable states to maintain the security of their populations.

JCWI is also mindful of the fact that the Home Secretary already has a wide discretion to exclude or deport foreign nationals on the ground that this would be "conducive to the public good".

"Unacceptable Behaviour"

We are concerned that as presently formulated the list of unacceptable behaviours under the proposed extension of the rules is vaguely defined; that this may result in a disproportionate limitation on the freedom of expression under Article 10 of persons with indefinite or temporary leave to remain in the UK i.e. by virtue of their immigration status; or unwitting breaches of the new rules by these persons, particularly those working as teachers, journalists and campaigners.

For example in respect of "Justify or glorify terrorism": we note that prominent UK citizens in positions of public leadership have expressed what may be construed, on the view of some, as justifications of terrorism. For example in June 2002, Cherie Blair expressed the view that young Palestinians had no hope but to act as suicide bombers just hours after the bombing of a public bus in Jerusalem which caused 58 casualties. This statement could be read as "justifying" terrorism. However it is not untypical of the concerns that many people in the UK, including British nationals, in the course of exercising their right to free speech more generally, or in their professional posts as reporters and campaigners have expressed vis-à-vis the situation in the Middle East or the invasion of Iraq. These are not necessarily views which JCWI advocates but we recognise the right of individuals to express them under Article 10 ECHR.

Denial of equal rights

It is important to recognise that whereas British nationals will be allowed to express such views, foreign nationals may not be able to do so for fear of deportation or exclusion from the UK, even if they were seeking to promote public awareness and understanding of these issues in a responsible fashion. This denial of equal rights is of particular concern to JCWI. Wherever possible, and especially in matters concerning allegations related to terrorism and other criminal activity, the government should try to use the criminal process to deal with individuals over whom it has concerns, thus ensuring that British and foreign nationals alike face the high standards of prosecution on an equal footing.

In respect of the Government's proposal to include in its list of unacceptable behaviours "fomenting terrorism or other serious or criminal activity, fostering hatred which may lead to intra community violence in the UK and advocating violence in furtherance of particular beliefs" we are unclear as to the rationale for additional rules given that already:

1. the Terrorism Act 2000 has created a broad range of criminal offences that not only include inciting terrorist acts, but also belonging to, or inviting support for, a proscribed organisation. The new powers under the 2000 Act are, even now, largely untested, and there is nothing to indicate that they are insufficient;

2. and under the Race Relations Act 1976 a person may be prosecuted if s/he publishes or distributes written matter which is threatening, abusive or insulting; or uses in any public place, or at any public meeting, words which are threatening, abusive or insulting, in a case where, having regard to all the circumstances, hatred is likely to be stirred up against any racial group in Great Britain by the matter or words in question;

3. and that the government is planning to implement further new anti-terrorism offences, including two potentially very broad offences of "indirect incitement" and "acts preparatory to terrorism". These have already been signalled out for criticism for the lack of clarity and certainty with which they are set out in the new proposals.

In addition to ensuring more precise wording we therefore believe that this consultation would benefit from setting out the rationale for creating these unacceptable behaviours. JCWI already has concerns over the sweeping nature of current anti-terrorism legislation and its impact upon foreign nationals, including asylum-seekers, who will often be seeking refuge from persecution for holding legitimate beliefs and political opinions.

Human Rights Concerns

Further, we are seriously concerned about the Government's initiatives to allow deportations to take place to countries with questionable human rights records, based on "memoranda of understanding".

JCWI would encourage any initiative to improve the human rights records of other countries. The Government recently agreed a "memorandum of understanding" with Jordan, a country which is known to practice torture (US State Department report for 2004). It is our belief that to secure freedom from torture for potential deportees, more is needed than a "memorandum". We would point out that years of systematic dialogue and monitoring by UN agencies and human rights NGOs have produced little improvement.

If the UK would be prepared to amend the Human Rights Act to allow people to be returned to regimes where they are at real risk of torture, as a democracy, we would be setting the wrong example. Article 3 cannot be derogated from, and in doing so this could have adverse consequences for the UK in terms of its relationship with the European Union. Any new legislation instructing judges to rule that there would be no breach of Article 3 where there is such a memorandum, indirectly amounts to derogation from Article 3.

Existing legislation allows for terrorists to be tried and convicted. This would be a better solution than deporting those suspected of terrorism and allow them to spread their terrorist ideas elsewhere.

Transparency and rights of appeal in entry clearance procedures

The Government's consultation includes measures aimed at strengthening immigration control and securing our borders with the aim to exclude those believed to be a danger to the UK. A database of individuals around the world who may have engaged in "unacceptable behaviours" will be drawn up and will be accessible to entry clearance officers and immigration officers, who potentially have the power to exclude someone on those grounds.

The Home Secretary's statement on the 20th July 2005 stated that an "entry on that index will not necessarily mean exclusion". However we are concerned about the operation of such a "warning index" by immigration officers and entry clearance officers abroad. This should not be used as a blanket policy to prevent people coming to the UK who have a sincere and genuine reason to do so. JCWI calls for transparency in the use of such a system, subject to independent monitoring.

Of particular concern is the statement by the Home Secretary that there is a right of appeal against decisions made by entry clearance officers abroad. This will not always be the case for those who are refused entry clearance as visitors, who are the largest category of people seeking entry, unless they are family visitors or appealing on human rights or race discrimination grounds. The scope for litigating on either of these two latter grounds is very limited, leaving this group of people with no effective right of appeal.

The absence of a specific right of appeal against exclusion orders by the Home Secretary and refusals of entry clearance by officers abroad for visit purposes leaves it open for a very wide category of people to be unjustly denied entry to the UK without any effective means of legal challenge. Given that an unchallenged allegation of this nature is a very serious one that could be a blot on that individual's ability to travel not just to the UK but other countries, it is imperative that a statutory right of appeal against all such decisions is implemented.

Conclusion:

JCWI believes that in order to safeguard human rights and promote the security of the UK the Government should:

• Ensure the definition of unacceptable behaviours is sufficiently precise so as to ensure that non British nationals legally in the UK do not suffer de facto limitations on their Article 10 rights disproportionately compared to British nationals
• Explain why it believes this elaboration of unacceptable behaviour fulfils a deficit in existing laws relating to terrorist and criminal activity
• Demonstrate how it plans to ensure that those who are deported will not suffer breaches of their human rights
• Explain how the transparency of the entry clearance process in respect of those applying will be guaranteed.
• Implement a statutory right of appeal against all exclusion decisions and refusals of entry clearance.