1

ANTI-TERRORISM, CRIME AND SECURITY ACT 2001, PART IV

SECTION 28 REVIEW

I THE REVIEW PROCESS

1.1 Pursuant to section 28 of the Anti-Terrorism, Crime and

Security Act 2001 [ACSA2001] the Secretary of State is required

to appoint a person to review the operation of sections 21 to 23.

Part IV of ACSA2001, which includes sections 21 to 23, can be

found in the Annex to this report. Those are the sections

providing the Home Secretary with the power to certify that a

resident alien is a suspected international terrorist, and to order

the detention of that person if he cannot be expelled in the

normal way (for example, because removal would expose him to

inhuman or degrading treatment).

1.2 I was appointed as the section 28 reviewer on the coming into

law of the Act. The section provides for this, the first review, to

be completed not later than the expiry of 14 months beginning

with the day on which the Act was passed, with subsequent

reviews not later than one month before the end of any

extension period permitted in respect of sections 21 to 23 by

section 29(2) following an affirmative resolution by each House

of Parliament1. The Act received the Royal Assent on the 14th

December 2001.

1 Section 29(3)

2

1.3 I am also the reviewer of the Terrorism Act 2000, and prepare

reports annually on, respectively, the working of that Act as a

whole and the working of Part VII (which contains temporary

and renewable provisions relating to Northern Ireland). That

work has given me valuable knowledge of the many issues

facing government and law enforcement agencies and arising

from the activities of terrorist individuals and groups. The

experience gained has fortified in me the importance of ensuring

so far as is possible that the prevention of domestic and

international terrorism is achieved without compromising

unacceptably the rights and freedoms of individuals.

1.4 Mine is not the only reviewing process in relation to ACSA2001.

By section 122 a committee of at least 7 Members of the Privy

Council was to be appointed “to conduct a review of this Act”2.

That committee is meeting under the chairmanship of Lord

Newton of Braintree, and will complete its review within 2 years

of the coming into force of the Act3. The Privy Council

Committee’s review is envisaged in the Act as a single event, as

compared with my duty to report during each period of validity

of sections 21 to 23, which can be extended for individual

periods not exceeding one year at a time. I have met the

2 Section 122(1) 3 Section 122(4)

3

Committee and have an open dialogue with them: we have

discussed our respective roles in an effort to ensure that all

necessary issues are covered in an appropriately evidential and

considered way.

1.5 Likewise, I have had contact with the chairman of the Joint

Committee on Human Rights, Jean Corston M.P., and the

Committee Clerk, and similarly discussed our respective roles.

ACSA2001 is but one of many statutes falling for the Joint

Committee’s consideration. In fact they have devoted

considerable specific attention to it4. In their second report5

they focused upon the human rights aspects of what was then

the Bill, and concluded that there were risks of arbitrariness

and discrimination inherent in sections 21 to 23. In their fifth

report6 they decided to review the working of the Act in relation

to the protection of human rights before the first renewal order

and consider whether its further continuation appears

appropriate in relation to those concerns.

4 See the Committee’s Second Report, Session 2001-2, HL Paper 37/HC372; and Fifth Report 2001-2, HL Paper 51/HC420 5 Paragraphs 31-52 6 Paragraph 20

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II CRITICISM OF THE REVIEW PROCESS

2.1 In the process of preparing this review I have received some

trenchant criticism of the review process, and consider it

right to summarise at least part. The eminent author and

commentator on the law relating to terrorism Professor Clive

Walker, of Leeds University, is critical of what he has

described as “[review] measures spread across two pieces of

legislation and inconsistent timetables and forms of review”7.

He describes the various systems of review as “perhaps most

confusing of all”. He recommends that the reviews should be

made consistent in format, take due account of each other,

and be placed in one website together with the statistical

information relied upon. I agree with him as to the second

and third of these points; considerable consultation has

already occurred. As to the first, I suspect that some

diversity of approach by very differently constituted reviews

with varied responsibilities may add to the prospect of

problems being identified and highlighted: uniformity of

format could prove formulaic and less revealing. In this view

I am supported by others, including the renowned expert on

7 The material referred to is extracted from evidence submitted to the Privy Council Committee and made available to me

5

international conflict and terrorism Professor Paul

Wilkinson8

2.2 Professor Walker recommends too that reviews should be

transferred to an independent standing committee

established for the purpose. This is an idea that, though it

might involve an extra layer of bureaucracy, might have its

time if there were to be gathering momentum of legislation

departing from ECHR provisions. However, it would raise the

risk of further legitimising this hitherto relatively unusual

type of legislation by reference to an established standing

committee.

2.3 It is not part of my responsibility under section 28 to give a

judgment of the effectiveness of the review process. However,

what I can say is that I have not been inhibited in any way in

carrying out the review, either by restraint on my own part

or hindrance on the part of officials or government.

2.4 I have been given access to Ministers and officials at senior

level. I have been able to meet detainees privately and

without restraint of time. I have been shown as much closed

information as I requested.

8 Of St Andrews University. Professor Wilkinson too has provided evidence to the Privy Council Committee. We met to discuss a number of issues relevant to this report.

6

2.5 The process of my review was kick-started by a lengthy

telephone conversation with one of the solicitors acting for

detainees, in which I was told of concerns about the whole

procedure under sections 21 to 23, as well as particular

problems facing them within the prison system.

2.6 For reasons of public interest and confidentiality I have

decided that it is not appropriate to include as part of this

report a list of the persons with whom I have held

discussions. Anybody who wishes to contribute to this review

process is very welcome to do so either by writing to me (at

The House of Lords, London SW1A 0PW) or by email

(carlilea@parliament.uk). I have interspersed my ACSA2001

reviewing activities with my work on the Terrorism Act 2000,

and as a result have seen ACSA as part of a bigger picture.

Whilst my work as reviewer is a part-time activity, I consider

that I have been able to spend a sufficient number of days on

it to gain an informed view.

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III DEROGATION: THE POWERS UNDER SECTIONS 21 TO 23.

3.1 The measures in sections 21 to 23 are designed to address the

government’s concern about the inability to try suspected

international terrorists because of one or more of (i) insufficient

admissible evidence (as opposed to intelligence), (ii) the difficulty of

putting sensitive intelligence before a criminal court, and (iii)

international treaty obligations affecting the possibility of

deportation in particular cases. The power to detain given under

section 23 involved derogation9 from the right of liberty contained

in Article 5(1) of the European Convention for the Protection of

Human Rights and Fundamental Freedoms [ECHR]. The Joint

Committee on Human Rights was not persuaded that the

conditions for derogation from the ECHR had been met. This is an

issue subject to litigation at the time of writing. The Special

Immigration Appeals Commission held the derogation to be

unlawful, on the basis that it was incompatible with articles 5 and

14 of the ECHR. That decision was reversed on appeal brought by

persons detained under section 2310. The Court of Appeal

concluded that there was ample material to justify the derogation

and the statutory provisions created in the context of the

9 Human Rights Act 1998 (Designated Derogation) Order 2001 10 A and ors v Secretary of State for the Home Department [2002] EWCA Civ 1502 C.A.

8

derogation. The Court of Appeal’s decision is now subject to a

petition to the House of Lords for leave to appeal.

3.2 The merits, content and method of the derogation from the ECHR

are not part of my responsibility as reviewer of the operation of

sections 21 to 23, under section 28.

3.3 ACSA2001 was introduced in response to the events of September

11th 2001. As the government has put it:

“The purpose of the Act is to build on legislation in a number

of areas to ensure that the Government, in the light of the new

situation arising from the September 11 terrorist attacks on

New York and Washington, have the necessary powers to

counter the threat to the UK.”11

3.4 As a result of that threat, the powers given to the Home Secretary

are wide in their scope and have a significant impact on a

particular group of the resident community. The members of that

group are all persons who do not hold British nationality. Some

police have expressed misgivings about a law that in practice has

applied only to Muslims (because all those currently detained

happen to be Muslims): there is a sense that it causes real

resentment among parts of the Muslim community who are both

residents and nationals of the United Kingdom, and possibly

makes some aspects of policing more difficult. Against that one

11 Explanatory Notes to the Act, The Stationery Office, 2002

9

must place the paramountcy of public safety, and that it is the

government for the time being that is held to account if terrorist

attacks are the result of inadequate public protection. One could

not sensibly claim that the balance is easy or the solutions clear.

3.5 It should be noted that, by section 29(7), sections 21-23 shall

cease to have effect at the end of the 10th November 2006. New

primary legislation would be required if identical or similar powers

were to continue after that date.

3.6 Review of the operation of sections 21 to 23 necessarily involves

some examination of the work of the Special Immigration Appeals

Commission [SIAC], which by section 26 is given jurisdiction for

appeals against certification under section 21, and by section 27

the duty to review each certification irrespective of appeal. In order

to deal with SIAC issues I have held discussions with persons

involved in the SIAC process, and have considered SIAC’s

procedural rules. I have not been able to attend a SIAC hearing of a

substantive review or appeal under ACSA2001 because, as yet,

none has taken place. I have been told that there have been no

substantive hearings pending the final determination of the

challenge to derogation described above. However if, as is possible,

the derogation case moves from the House of Lords to the

European Court of Human Rights, that could delay a final decision

by many months. Delaying substantive hearings to await the

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Strasbourg court would be hard to justify. Whilst in each case

adjournments are a matter for the Commission, it is expected and

seems reasonable that SIAC should begin its substantive hearings

soon. During the period before my next review I shall attend some

substantive SIAC hearings, in order to be able to comment in an

informed way on the procedure and the consideration of cases.

3.7 Below I deal with each part of the powers in turn. They can be

summarised as:

Section 21 Definition of terrorism and terrorist; certification

and notification; appeal and review

Section 22 Actions in connection with deportation and

removal made statutorily available against certified persons

despite the fact that for various reasons they cannot in

practice be removed from the United Kingdom.

Section 23 Detention of certified persons without charge.

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IV SECTION 21

4.1 What is a suspected terrorist? The section empowers (but does

not oblige) the Secretary of State to issue a certificate if he:

“reasonably –

(a) believes that the person’s presence in the United

Kingdom is a risk to national security, and

(b) suspects that the person is a terrorist”12

It is therefore a pre-requisite for certification that the person

should be a terrorist.

4.2 Section 21(2)(a) and (b) define a terrorist by reference to various

acts and allegiances, all directly connected with the actions of what

is called “an international terrorist group”. Such a group is defined

by reference to section 1 of the Terrorism Act 2000. In my view no

serious difficulties are caused by the definitions so far described.

4.3 Section 21(2)(c) does cause some difficulty. It includes in the

definition of “terrorist” a person who –

“has links with an international terrorist group”.

4.4 Section 21(2)(c) is softened by section 21(4), which provides –

“For the purposes of subsection (2)(c) a person has links with

an international terrorist organisation only if he supports or

assists it”.

12 Section 21(1)

12

4.5 Several examples have been given to me of the breadth of the

“links” provision. Probably the most obvious example is that of the

wife of an international terrorist, who may work at home looking

after her husband’s domestic arrangements. It is said that, even if

all she knows is that her husband is a member of an international

terrorist group, and even if she provides nothing beyond the

domestic arrangements, she would fall foul of section 23 so as to

be subject to certification herself.

4.6 In the debates on the Bill some reassurance was given on the issue

of links13. The presence of the word ‘it’ in section 21(4) is helpful in

this regard. The court always construes a provision affecting the

liberty of the subject in a way as consistent with continuing liberty

as possible: more than mere social or professional association

would have to be demonstrated before certification could be

justified under the section. The wife in the example given would

probably be outside the scope of ‘links’ in the context of the

section. Nevertheless the use of the word ‘links’ gives rise to

understandable concern. It is unclear to me that there would be

any detriment in terms of public safety if that word and indeed

section 23(4) were removed from the Act and section 23(2)(c)

amended to read –

13 Lord Rooker, a Home Office Minister, colourfully accepted at HL Debs col. 502 29th November 2001 that Osama Bin Laden’s distant family relatives, about ten times removed, do not have a sufficient ‘link’

13

“(c) otherwise supports or assists an international terrorist

group”

Whilst this change would not alter the substance of the law, and

might even be open to criticism as being of symbolic value only, in

my view it would be seen as consistent with an effort to maintain

clear definitive standards. I suggest that such a change be

considered.

4.7 It is to be noted that ‘an international terrorist group’ is not defined

by reference to those groups proscribed under the Terrorism Act

2000. Justification for this difference was offered during the

passage of the Bill14, but has been subject to criticism.

4.8 The quality of the certifications made. As part of my review I

have attempted to replicate the exercise carried out by the Home

Secretary. In relation to each certified and detained person I was

shown the material (including closed material) placed before him,

and I was therefore able to assess for myself whether each person

concerned fell within the section 23(1) criteria. In every case I was

entirely satisfied that the criteria were met, and would have been

very surprised if certification had not taken place.

4.9 Whilst in each of the cases it was clear to me that the person was

properly suspected on strong grounds of being a member of,

14 For example, by the Home Secretary The Rt Hon David Blunkett M.P. at HC Debs col 379 21st November 2001

14

supporter or assisting an international terrorist group, I was far

less certain that one could be precise as to their exact group

affiliation.

4.10 From the material I have seen, it is a certainty that there remain in

the United Kingdom individuals and groups who pose a present

and real threat to the safety of the public here and abroad. Some

are UK citizens, and therefore outside sections 21 to 23: this is at

the core of the discrimination argument presented in the

derogation challenge. The public safety context includes evidence

that it may be difficult to predict likely targets of terrorist attacks,

as the bombing of a nightclub full of holidaymakers in Bali

showed. In the extremely dangerous context in which anti-

terrorism legislation is now working, I accept that public protection

must be quite flexible against international terrorists who often

work in small ‘cells’, are frequently difficult to categorise as part of

any particular known groups, and are part of an international

terrorist picture in which new groups can appear suddenly. The

issues underlying a proscription decision may be different from

those in a certification under section 21.

4.11 Subject to the comments above on the word ‘links’, I consider that

sections 21(1) to (5) operate satisfactorily and fairly, having regard

to the context.

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4.12 Procedural difficulties under sections 21 and 26. Section 21 (6)

provides: -

“(6) Where the Secretary of State issues a certificate under

subsection (1) he shall as soon as is reasonably practicable—

(a) take reasonable steps to notify the person concerned, and

(b) send a copy of the certificate to the Special Immigration

Appeals Commission.”

4.13 Difficulty has arisen in one case in which the Secretary of State

issued a certificate in respect of a suspected international terrorist

whose whereabouts were at the time unknown. The certificate was

issued in December 2001, but SIAC did not receive a copy until

October 2002, and without evidence being provided that the

Secretary of State had complied with section 21(6)(a), something

that unsurprisingly SIAC was not prepared to take for granted. The

difficulty is caused by section 25(5), which provides: -

“(5) An appeal against certification may be commenced only— (a) within the period of three months beginning with the date

on which the certificate is issued, or

(b) with the leave of the Commission, after the end of that period but before the commencement of the first review under section 26”.

and by section 26(1), which provides –

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“26 Certification: review

(1) The Special Immigration Appeals Commission must

hold a first review of each certificate issued under

section 21 as soon as is reasonably practicable

after the expiry of the period of six months

beginning with the date on which the certificate is

issued”.

4.14 Remedies on a successful review are less satisfactory than on an

appeal15. In any event, an appellant is able to take a more active

part in an appeal than would be the case on a review which, if he

has not been found, might have to be held in his absence and in

ignorance of whether he is maintaining a defence. Whilst someone

who is deliberately evading service should expect no special

consideration, section 21(6) may be complied with but the person

certified may simply not be found without deliberately avoiding the

authorities. The suggestion has been made to me that section

25(5)(b) be amended either by omitting the words from ‘but’ to

‘section 26’, or by making clear that SIAC has a discretion even if a

first review has commenced.

4.15 The response of senior Home Office officials to this has been that

the case referred to concerned a person against whom a certificate

15 See sections 25(2) and (4); and sections 26(5) and (6)

17

was issued but who has not been located since. As a result of a

mistake SIAC was not served with a copy of the certificate: the

Home Office accepts that this should have been served, and has

now complied. They have told me that it was not foreseen that the

factual situation that arose in the case under discussion would

occur, and that it was envisaged that a person would always have

an opportunity for an appeal before the first review commenced. It

is accepted that the legislation might have been framed differently

if this situation had been foreseen at the time the Bill was enacted.

4.16 The Home Office has suggested that the legislation need not be

amended to take into account this problem. In the particular case

in question, the certificate was revoked recently by the Secretary of

State so as to avoid the possibility of the review commencing and

no appeal being possible thereafter. Once a certificate has been

revoked for whatever reason, there is nothing to stop a fresh

certificate being issued if the situation changes. It has been

indicated to me that if this type of situation recurred it is likely

that the certificate would be revoked once it had become clear that

the certified person was not going to be arrested and detained in

the immediate future. This would avoid the recurrence of the

problem faced by SIAC.

4.17 Whilst an amendment to the legislation would be the guaranteed if

laborious solution to the problem, and should be considered, I am

18

reassured by my belief that the procedure described above would

be followed as a matter of practice and provides a satisfactory

practical answer.

4.18 Decision and revocation. No controversy arises under section

21(7), which permits the Secretary of State to revoke a certificate.

As described above, he has done so, in that case to preserve the

legal rights under the Act of a person who remained a suspected

international terrorist. My observation and enquiries have

confirmed that the Home Secretary has been assisted greatly by

officials but has exercised his own judgment as to matters of

certification and revocation, and has not automatically followed the

advice given in every case. What I judge to be appropriate levels of

executive and political judgment are being applied to these cases.

4.19 SIAC. Section 21(8) and (9) provide that decisions and actions by

the Secretary of State in connection with certification under the

section may be questioned in legal proceedings only before SIAC.

This means that conventional judicial review proceedings are not

open to a certified person. SIAC is part of the High Court, and by

sections 26 and 27 is obliged to cancel a certificate in the absence

of evidence to meet the requirements of section 21(1).

4.20 In the conduct of its hearings (as opposed to the system of law it

operates) SIAC is not the subject of any serious criticism in relation

to the fairness of its approach or procedures. Senior

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judges with special experience chair the hearings. It has already

been noted that, at first instance, it found the ECHR revocation

unlawful, the contrary decision being reached by the Court of

Appeal. SIAC has the enviable flexibility pursuant to section 27(6)

to modify its own procedural rules even in relation to individual

cases.

4.21 The statutory appeal and review periods were considered

insufficiently frequent by the Joint Committee on Human Rights to

comply with ECHR article 5(4). This is not a matter falling directly

within my responsibilities, unless the periods can be shown to

cause difficulties in the fair hearing of cases by SIAC. I have no

doubt that the appeal and review periods could be given further

consideration by the Joint Committee and the Privy Council

Committee. This is a subject to which I shall certainly give

attention in my next review, in the light of experience of the next

period (presumably a year) for which the provisions will operate. I

do not doubt either that careful consideration will be given by

others to the suggestion (falling too outside my responsibilities)

that detention powers should be founded upon the use of criminal

offences rather than immigration and nationality.

4.22 Continuation of appeals after leaving the UK. Another matter

raised with me in connection with SIAC is as to whether appeals

should be permitted to continue even if a detainee has left for his

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home country or another country willing to accept him (as he may

at any time). This is a real issue. The certificates of two detainees

who have left the UK have been revoked with effect from the date

they left the country since it is accepted that they cannot be a risk

to national security within the restricted meaning of section

21(1)(a) if they are not within the UK. Nevertheless they may have a

strong interest in pursuing an appeal to SIAC, having regard to

family circumstances and their aspirations as to future residence

and work.

4.23 The Home Office has told me that it believes that a detainee who

has left the UK should be able to continue his appeal from abroad.

They suggest that the Act does not need to be amended to enable

this. They say that the tests SIAC must apply as provided by

section 25(2) would relate to the evidence for validity of the

certificate during the period before it was revoked in deciding

whether it should be cancelled (cancellation on an appeal being ab

intitio). This is because if SIAC considered the evidence at the date

of the appeal hearing it would be obliged to cancel the certificate

because the detainees would no longer be in the UK at that date.

This I find to be an arguable but contentious approach to section

25(2), far from certain to be accepted by SIAC. This point may arise

rarely, but is potentially of great importance in cases where it is

taken. I invite the Home Secretary to consider this further, and to

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introduce legislation to amend section 25 accordingly if doubt

remains.

4.24 Special advocates. Provision is made for special advocates to be

instructed by the Law Officers of the Crown16 to represent the

interests of the certified person17. It is provided18—

“(4) The function of the special advocate is to represent the interests of the appellant by— (a) making submissions to the Commission in any

proceedings from which the appellant and his representative are excluded;

(b) cross-examining witnesses at any such proceedings; and

(c) making written submissions to the Commission.

4.25 I have noted some concern about the role of special advocates, and

their contact with the person for whom they perform their

statutory functions. The certified person is not the client of the

special advocate. The certified person is entitled to representation

by solicitors and counsel via the Legal Services Commission. There

16 The Attorney General or the Lord Advocate, according to jurisdiction 17 See Special Immigration Appeals Commission (Procedure) Rules 1998, rule 7 18 Ibid, rule 7(4)

22

have been some difficulties as to the extent and cost of free legal

assistance: hopefully the Commission recognises the complexity

and requirements of specialised knowledge inherent in some cases,

and allows representation by solicitors and counsel at a

corresponding level of experience and competence. However, the

legal representatives instructed by the certified person do not have

access to the closed material in the case, whereas the special

advocate does. Parts of the hearing including the examination of

some witnesses before SIAC can take place without the person’s

own lawyers present, but in the presence of the special advocate.

This puts the conventional legal representatives at a clear

disadvantage, as they do not receive disclosure of material likely to

go to the root of many cases.

4.26 The special advocates have been selected carefully and on a proper

basis. They include practitioners with experience of human rights,

judicial review and immigration and nationality cases. There can

be little justified criticism of the selection of the panel of lawyers

able to act as special advocates. Whether they are able to exercise

their role in a fashion that protects certified persons is more

difficult to determine.

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4.27 At first blush one might expect the special advocate to have quite a

free rein in dealing with certified persons and their representatives.

However, it is further provided19 –

“(5) Except in accordance with paragraphs (6) to (9), the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission. (6) The special advocate may communicate with the appellant and his representative at any time before the Secretary of State makes material available to him under rule 10(3). (7) At any time after the Secretary of State has made material available under rule 10(3), the special advocate may seek directions from the Commission authorising him to seek information in connection with the proceedings from the appellant or his representative. (8) The Commission shall notify the Secretary of State of a request for directions under paragraph (7) and the Secretary of State must, within a period specified by the Commission, give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made. (9) Where the Secretary of State makes an objection under paragraph (8),

rule 11 shall apply as appropriate.”

Rule 11 provides for the means of considering and determining an

objection by the Secretary of State.

19 Ibid, rule 7

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4.28 The above means that in general the special advocate cannot ask

the certified person any question arising from the closed material.

The reasons for this extreme caution are centred upon the need to

protect the safety and integrity of human and electronic resources.

Connected with this is the protective anxiety of the UK authorities

in relation to the use of intercept material in court. As a general

rule evidence likely to reveal the existence or absence of an

interception warrant cannot be given or sought20. SIAC is a

statutory exception21, but this does not include applicants before

the Commission or their representatives (though it does include

the special advocates). The issue of the use of intercept material in

court was discussed in the Lloyd Report in 199622, which provided

the foundations of the Terrorism Act 2000. The United Kingdom’s

protective view of such evidence is not replicated elsewhere, and

Lord Lloyd and his colleagues identified at least 20 cases in which

the admissibility of intercept evidence would have enabled a

prosecution to be brought for serious offences23. It is not within my

remit to make any recommendation on the question. It is self-

evident that the availability of intercept evidence to SIAC and to the

special advocate, but not to the certified person or his own

20 Regulation of Investigatory Powers Act [RIPA] 2000 section 17 21 RIPA section 18 22 Inquiry into Legislation Against Terrorism, Cm3420, 1996 23 Ibid Vol 1 page 35

25

lawyers, leaves the certified person at a disadvantage in knowing

and dealing with the true issues. The justification for this apparent

inequality, if there is justification, could only be founded in

overwhelming national security consistent with the emergency

upon which the ECHR derogation is founded.

4.29 I have been told and have seen evidence that some international

terrorists are extremely well trained in counter-surveillance, and

that there is the real risk that sources could be compromised by

deductions from even the most carefully phrased questions. In

addition, the knowledge to be derived as to electronic capability

and intercept location from the use or disclosure of intercept

evidence in the cases covered by ACSA2001 sections 21 to 23

could affect the ability of the police and security services to

maintain continuing operations against terrorists.

4.30 In the light of the evidence I have seen and heard, including

compelling closed material, and taking into account all the views

received, I have concluded that the special advocate system works

reasonably well to achieve its purpose of assisting SIAC to reach

decisions correct in fact and law. As a general principle

conventional criminal case disclosure is preferable to any system

contrived (as here) to meet the needs of a group of hard cases.

However, because of the restrictions the special advocates are

careful to take account of the full range of potential issues. In so

26

far as the undoubted inequalities of information are concerned, my

overall judgment is that the provisions maintain a reasonable

balance between fair proceedings and the reality of life-threatening

risks to the public and to law enforcement agencies. If the level of

threat reduces, a greater degree of procedural equality should be

restored as a priority.

4.31 I shall monitor closely over the next review period the procedure

and effectiveness of SIAC when dealing with substantive issues,

and the effectiveness of the special advocate system. In particular,

I shall be interested in the extent to which special advocates apply

to communicate with the certified person after receiving the closed

material in a case, and the progress of such applications.

4.32 SIAC rules. Consultation is taking place at present about changes

in the SIAC rules. This consultation involves members of SIAC, the

Lord Chancellor’s Department, a special advocate, and

representative other service users. Those preparing any rule

changes will doubtless ensure that the views of the Home Office

and of lawyers instructed by certified persons are considered fully,

but hopefully will not delay necessary changes longer than is

absolutely necessary. In my view rule changes could usefully

include –

• the introduction of paper only consideration of reviews where

there is agreement for such a procedure, for example where

27

there has been no material change of circumstances since

the last review

• provision of a procedure for cases to be heard together where

appropriate because of coincidence of facts and law

• possible ways of accelerating rule 11 applications (where the

special advocate wishes to communicate with the certified

person after receiving closed material).

4.33 Whilst the promulgation of amended rules is desirable, to reflect

experience and need in the cases under consideration, section

27(6) appears to cover the need for rule modifications to meet

individual cases.

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V SECTION 22

5.1 Section 22 lists, in subsection (2), actions that may be taken in

respect of a suspected international terrorist despite the fact that

those actions cannot at present result in the actual removal of that

person because either a point of law relating to an international

agreement or a practical consideration prevents this.

5.2 This is a real issue. ECHR article 3 prevents the removal from the

United Kingdom of a person who would be at risk of torture or

inhuman or degrading treatment or punishment in the country to

which they were sent. There are no exceptions to this rule.

5.3 Practical considerations would include the unavailability of direct

flight routes to the country of intended removal, or a lack of any

appropriate travel documentation.

5.4 In relation to article 3, among the group of certified persons

currently detained are passport holders of country X24. For article

3 reasons we do not return certified persons to country X, as they

are all potential victims of article 3 unacceptable treatment if

returned, on account of their political beliefs. From what they told

me they do not wish to be sent there. They would be at risk if

repatriated. Some EU governments do sometimes send people back

to country X, after considering individual cases on their merits and

24 I have been advised that it is necessary to withhold the name of the country concerned.

29

by reason of a differently nuanced interpretation of the 1967

Protocol relating to the Status of Refugees. This difference between

our own approach and that taken by fellow members of both the

Council of Europe and the European Union can seem puzzling,

and is easily over-simplified. At present it is consistent with the

wishes of the certified detainees.

5.5 The actions listed in section 22(2) do not permit a person to be

removed contrary to article 3 or any other international obligations.

They do permit actions to be taken with a view to future removal

which, but for the certification under section 21, the courts might

be able to set aside. The provisions of section 22 are largely

procedural, to enable immigration detention powers to be used for

detentions under section 23.

5.6 I have found no evidence that section 22 causes any particular

difficulties.

30

VI SECTION 23

6.1 Section 23 provides for the detention of a certified international

terrorist under the provisions of the Immigration Act 1971. This

applies even if their removal is temporarily or indefinitely prevented

by a point of law relating to an international agreement or practical

considerations (as discussed in chapter V above).

6.2 I have visited HMP Belmarsh and HMP Woodhill, where the

detained certified persons are kept. At the time of my visits there

were 8 detainees: the number had increased to 10 by the time of

writing this report. I was able to speak privately to 7 of the 8. One

refused to speak to me. Another was suffering from a serious

illness, and has since been transferred out of prison to a secure

hospital: however, despite his condition I was able to have a short

conversation with him. Some were willing to speak to me at length.

6.3 HMP Belmarsh is an unattractive and unpleasant place. The

detainees I saw there and at Woodhill are held in highest category

conditions. At Belmarsh at least two had notices outside their cell

doors with the word ‘Convicted’ as a description of their status: as

they have not been charged with any offence, this description could

hardly be less accurate, and was removed at my request. Woodhill

is a less unpleasant prison, with natural light and space to move

around even in the high security setting. The detainees to whom I

31

spoke in Woodhill appeared more relaxed, a natural consequence

of the altogether more benign environment.

6.4 All complained to me of the fact that they were treated in the same

way as men convicted of the most serious crimes, indeed were

locked up alongside such men. Some have complained of worse

treatment, including the use of solitary confinement, restricted

opportunities to contact family, and insensitivity to religious

observance. Generally they have the opportunity to fraternise with

each other, an opportunity that would not necessarily be permitted

in all other countries. However, their position and status is

unenviable. All told me of the real and, in my view understandable

difficulty of dealing with incarceration without either trial,

conviction or an indication of when if ever it would come to an end.

The 2006 closure date for the legislation does not reassure them.

Some contrasted their position unfavourably with that of life

sentence prisoners, who at least know their tariff and when they

will be considered for parole. They have no remission, and no

parole.

6.5 The Home Office has assured me that criminal charges are brought

in every case in which it is possible to do so without compromising

security matters. I accept this assurance, having seen evidence of

serious terrorist suspects being charged with, for example, credit

card fraud to ensure due process and conventionally lawful

32

detention. Of course, if the criminal law was amended to include a

broadly drawn offence of acts preparatory to terrorism, all could be

prosecuted for criminal offences and none would suffer executive

detention: the merits of this suggestion fall outside the scope of

this review.

6.6 The detainees made various detailed complaints to me about

prison reception procedures, reading matter, ability to speak as

often as they wish on the telephone in their own language, intimate

searches, dentistry, education facilities, food and lack of suitable

items in the prison shop. I have taken up these matters direct with

the Director-General of the Prison Service, and I believe that

improvements have been made since the detentions under section

23 started.

6.7 I make particular mention of prison reception procedures. Those

detained under section 23 are not taken for processing to a police

station when seized. Processing procedures take place at the

prison, which for this purpose has a reception role similar to that

of the police station custody suite. Prison service staff have

complained to me that they are given inadequate information

about the new arrivals, and of course there are sometimes

language problems. I hope that this will be given attention.

Wherever they are detained, these uncharged persons should be

provided with a reasonable level of information, speedy legal

33

advice, and the prison staff given a sufficient dossier of facts to

enable them to know their personal details in so far as these are

ascertainable. The organisation Liberty and solicitors representing

detainees have complained that there is no equivalent to the police

station duty solicitor scheme, and no provision of information as to

specialist solicitors for such cases. These complaints are justified.

Prison staff should be equipped and required to deal with these

matters.

6.8 It is my firm and considered opinion, confirmed by almost every

observer with whom I have discussed the matter, that persons who

have not been charged with any offence should have that status

reflected in the circumstances of their detention. This need not

compromise security in any way. Whilst the history of detention

without charge during the 1939-45 war is open to detailed

criticism as to the way the powers were exercised and the paucity

of evidence sometimes relied upon25, wartime detainees in many

cases were kept in better than prison conditions and with a degree

of self-governance. Another set of examples may be derived from

the treatment of convicted prisoners in the later years of the H-

blocks at The Maze prison in Northern Ireland. There, behind

formidable multiple-perimeter security, convicted paramilitary

25 See, for example, In the Highest Degree Odious: Detention without Trial in Wartime Britain: Brian Simpson, AW Simpson 1997

34

prisoners were permitted to move reasonably freely within the

blocks and enjoy a significant level of self-governance.

6.9 I would be extremely concerned if the security of detention, and

secure prevention of terrorist activity during detention, was not as

high as it is at present. However, for persons who have not been

charged with any criminal offences in my view it would be far

preferable if section 23 detainees could be kept in a separate,

secure environment with greater internal freedom of association

and of activity.

6.10 I recognise that a change in the circumstances of detention may

not be without difficulty. Those detained are not necessarily a

homogeneous group. Some may object to incarceration with others,

possibly from genuine fear.

6.11 Whilst the type of new facility proposed should be used for section

23 detainees as a matter of course, there should remain discretion

to disperse individuals elsewhere in the prison estate in

appropriate circumstances. I doubt this would arise often.

6.12 I have discussed my views as set out in paragraphs 6.8 and 6.9 in

a meeting with the Home Secretary and officials, and subsequently

with the Director-General of the Prison Service. I have been

assured that steps are being taken to identify an establishment

where the detainees could be held together as described, if at all

35

possible. I look forward to hearing of further progress. I was

encouraged by the meetings.

6.13 Professor Clive Walker and others have suggested that less

intrusive alternatives to custody be considered. One possibility is

the use of exclusion orders. Another is the use of registration and

restraint orders, as existed under the Prevention of Violence

(Temporary Provisions) Act 1939. Professor Walker has suggested

that the use of modern electronic measures such as tagging might

meet need. Restrictions on movement and activities, though

intrusive and limiting, would be less damaging to the rights of

individuals. I agree that such measures should be considered as

an alternative to detention, possibly for use as conditions for a

form of suspended detention.

36

VII CONCLUSION

My main conclusions are as follows –

1) Pending substantive hearings before SIAC should proceed without

awaiting the final determination of the challenge to derogation from

the ECHR.

2) Consideration should be given to the amendment of section 21 to

remove the term ‘links’.

3) The Secretary of State has certified persons as international

terrorists only in appropriate cases.

4) The Secretary of State has exercised his independent judgment in

each case, giving due regard to advice from officials.

5) Section 25 should be amended to ensure that appeals against

certification may continue after the departure from the UK of a

certified person.

6) The effectiveness of and the statutory inhibitions placed upon

special advocates as protectors of the rights of detained persons

should be kept under review.

7) Updating of the procedural rules of SIAC should not be delayed.

8) Steps should be taken to provide separate facilities more suitable

to the special circumstances of executive detention of persons who

have not been charged with any offences.

Alex Carlile House of Lords, London SW1A 0PW

January 2003.

37

Anti-terrorism, Crime and Security Act 2001

PART 4

IMMIGRATION AND ASYLUM

Suspected international terrorists

21 Suspected international terrorist: certification

(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably-

(a) believes that the person's presence in the United Kingdom is a risk to national security, and

(b) suspects that the person is a terrorist.

(2) In subsection (1)(b) "terrorist" means a person who- (a) is or has been concerned in the commission, preparation or

instigation of acts of international terrorism, (b) is a member of or belongs to an international terrorist group, or (c) has links with an international terrorist group.

(3) A group is an international terrorist group for the purposes of

subsection (2)(b) and (c) if- (a) it is subject to the control or influence of persons outside the

United Kingdom, and (b) the Secretary of State suspects that it is concerned in the

commission, preparation or instigation of acts of international terrorism.

(4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.

(5) In this Part- "terrorism" has the meaning given by section 1 of the Terrorism Act

2000 (c. 11), and "suspected international terrorist" means a person certified under

subsection (1).

(6) Where the Secretary of State issues a certificate under subsection (1) he shall as soon as is reasonably practicable-

(a) take reasonable steps to notify the person certified, and (b) send a copy of the certificate to the Special Immigration

Appeals Commission.

38

(7) The Secretary of State may revoke a certificate issued under subsection (1).

(8) A decision of the Secretary of State in connection with certification under this section may be questioned in legal proceedings only under section 25 or 26.

(9) An action of the Secretary of State taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings under-

(a) section 25 or 26, or (b) section 2 of the Special Immigration Appeals Commission Act

1997 (c. 68) (appeal).

22 Deportation, removal, &c.

(1) An action of a kind specified in subsection (2) may be taken in respect of a suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of-

(a) a point of law which wholly or partly relates to an international agreement, or

(b) a practical consideration.

(2) The actions mentioned in subsection (1) are-

(a) refusing leave to enter or remain in the United Kingdom in accordance with provision made by or by virtue of any of sections 3 to 3B of the Immigration Act 1971 (c. 77) (control of entry to United Kingdom),

(b) varying a limited leave to enter or remain in the United Kingdom in accordance with provision made by or by virtue of any of those sections,

(c) recommending deportation in accordance with section 3(6) of that Act (recommendation by court),

(d) taking a decision to make a deportation order under section 5(1) of that Act (deportation by Secretary of State),

(e) making a deportation order under section 5(1) of that Act, (f) refusing to revoke a deportation order, (g) cancelling leave to enter the United Kingdom in accordance

with paragraph 2A of Schedule 2 to that Act (person arriving with continuous leave),

(h) giving directions for a person's removal from the United Kingdom under any of paragraphs 8 to 10 or 12 to 14 of Schedule 2 to that Act (control of entry to United Kingdom),

(i) giving directions for a person's removal from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 (c. 33) (person unlawfully in United Kingdom), and

39

(j) giving notice to a person in accordance with regulations under paragraph 1 of Schedule 4 to that Act of a decision to make a deportation order against him.

(3) Action of a kind specified in subsection (2) which has effect in respect of a suspected international terrorist at the time of his certification under section 21 shall be treated as taken again (in reliance on subsection (1) above) immediately after certification.

23 Detention

(1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by-

(a) a point of law which wholly or partly relates to an international agreement, or

(b) a practical consideration.

(2) The provisions mentioned in subsection (1) are- (a) paragraph 16 of Schedule 2 to the Immigration Act 1971 (c. 77)

(detention of persons liable to examination or removal), and (b) paragraph 2 of Schedule 3 to that Act (detention pending

deportation).

24 Bail

(1) A suspected international terrorist who is detained under a provision of the Immigration Act 1971 may be released on bail.

(2) For the purpose of subsection (1) the following provisions of Schedule 2 to the Immigration Act 1971 (control on entry) shall apply with the modifications specified in Schedule 3 to the Special Immigration Appeals Commission Act 1997 (c. 68) (bail to be determined by Special Immigration Appeals Commission) and with any other necessary modifications-

(a) paragraph 22(1A), (2) and (3) (release), (b) paragraph 23 (forfeiture), (c) paragraph 24 (arrest), and (d) paragraph 30(1) (requirement of Secretary of State's consent).

(3) Rules of procedure under the Special Immigration Appeals

Commission Act 1997 (c. 68)- (a) may make provision in relation to release on bail by virtue of

this section, and

40

(b) subject to provision made by virtue of paragraph (a), shall apply in relation to release on bail by virtue of this section as they apply in relation to release on bail by virtue of that Act subject to any modification which the Commission considers necessary.

25 Certification: appeal

(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21.

(2) On an appeal the Commission must cancel the certificate if- (a) it considers that there are no reasonable grounds for a belief or

suspicion of the kind referred to in section 21(1)(a) or (b), or (b) it considers that for some other reason the certificate should not

have been issued.

(3) If the Commission determines not to cancel a certificate it must dismiss the appeal.

(4) Where a certificate is cancelled under subsection (2) it shall be treated as never having been issued.

(5) An appeal against certification may be commenced only- (a) within the period of three months beginning with the date on

which the certificate is issued, or (b) with the leave of the Commission, after the end of that period

but before the commencement of the first review under section 26.

26 Certification: review

(1) The Special Immigration Appeals Commission must hold a first review of each certificate issued under section 21 as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the certificate is issued.

(2) But- (a) in a case where before the first review would fall to be held in

accordance with subsection (1) an appeal under section 25 is commenced (whether or not it is finally determined before that time) or leave to appeal is given under section 25(5)(b), the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined, and

41

(b) in a case where an application for leave under section 25(5)(b) has been commenced but not determined at the time when the first review would fall to be held in accordance with subsection (1), if leave is granted the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined.

(3) The Commission must review each certificate issued under section 21 as soon as is reasonably practicable after the expiry of the period of three months beginning with the date on which the first review or a review under this subsection is finally determined.

(4) The Commission may review a certificate during a period mentioned in subsection (1), (2) or (3) if-

(a) the person certified applies for a review, and (b) the Commission considers that a review should be held because

of a change in circumstance.

(5) On a review the Commission- (a) must cancel the certificate if it considers that there are no

reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), and

(b) otherwise, may not make any order (save as to leave to appeal).

(6) A certificate cancelled by order of the Commission under subsection (5) ceases to have effect at the end of the day on which the order is made.

(7) Where the Commission reviews a certificate under subsection (4), the period for determining the next review of the certificate under subsection (3) shall begin with the date of the final determination of the review under subsection (4).

27 Appeal and review: supplementary

(1) The following provisions of the Special Immigration Appeals Commission Act 1997 (c. 68) shall apply in relation to an appeal or review under section 25 or 26 as they apply in relation to an appeal under section 2 of that Act-

(a) section 6 (person to represent appellant's interests), (b) section 7 (further appeal on point of law), and (c) section 7A (pending appeal).

(2) The reference in subsection (1) to an appeal or review does not

include a reference to a decision made or action taken on or in connection with-

(a) an application under section 25(5)(b) or 26(4)(a) of this Act, or (b) subsection (8) below.

(3) Subsection (4) applies where-

42

(a) a further appeal is brought by virtue of subsection (1)(b) in connection with an appeal or review, and

(b) the Secretary of State notifies the Commission that in his opinion the further appeal is confined to calling into question one or more derogation matters within the meaning of section 30 of this Act.

(4) For the purpose of the application of section 26(2) and (3) of this Act the determination by the Commission of the appeal or review in connection with which the further appeal is brought shall be treated as a final determination.

(5) Rules under section 5 or 8 of the Special Immigration Appeals Commission Act 1997 (general procedure; and leave to appeal) may make provision about an appeal, review or application under section 25 or 26 of this Act.

(6) Subject to any provision made by virtue of subsection (5), rules under section 5 or 8 of that Act shall apply in relation to an appeal, review or application under section 25 or 26 of this Act with any modification which the Commission considers necessary.

(7) Subsection (8) applies where the Commission considers that an appeal or review under section 25 or 26 which relates to a person's certification under section 21 is likely to raise an issue which is also likely to be raised in other proceedings before the Commission which relate to the same person.

(8) The Commission shall so far as is reasonably practicable- (a) deal with the two sets of proceedings together, and (b) avoid or minimise delay to either set of proceedings as a result

of compliance with paragraph (a).

(9) Cancellation by the Commission of a certificate issued under section 21 shall not prevent the Secretary of State from issuing another certificate, whether on the grounds of a change of circumstance or otherwise.

(10) The reference in section 81 of the Immigration and Asylum Act 1999 (c. 33) (grants to voluntary organisations) to persons who have rights of appeal under that Act shall be treated as including a reference to suspected international terrorists.

28 Review of sections 21 to 23

(1) The Secretary of State shall appoint a person to review the operation of sections 21 to 23.

(2) The person appointed under subsection (1) shall review the operation of those sections not later than-

43

(a) the expiry of the period of 14 months beginning with the day on which this Act is passed;

(b) one month before the expiry of a period specified in accordance with section 29(2)(b) or (c).

(3) Where that person conducts a review under subsection (2) he shall send a report to the Secretary of State as soon as is reasonably practicable.

(4) Where the Secretary of State receives a report under subsection (3) he shall lay a copy of it before Parliament as soon as is reasonably practicable.

(5) The Secretary of State may make payments to a person appointed under subsection (1).

29 Duration of sections 21 to 23

(1) Sections 21 to 23 shall, subject to the following provisions of this section, expire at the end of the period of 15 months beginning with the day on which this Act is passed.

(2) The Secretary of State may by order- (a) repeal sections 21 to 23; (b) revive those sections for a period not exceeding one year; (c) provide that those sections shall not expire in accordance with

subsection (1) or an order under paragraph (b) or this paragraph, but shall continue in force for a period not exceeding one year.

(3) An order under subsection (2)- (a) must be made by statutory instrument, and (b) may not be made unless a draft has been laid before and

approved by resolution of each House of Parliament.

(4) An order may be made without compliance with subsection (3)(b) if it contains a declaration by the Secretary of State that by reason of urgency it is necessary to make the order without laying a draft before Parliament; in which case the order-

(a) must be laid before Parliament, and (b) shall cease to have effect at the end of the period specified in

subsection (5) unless the order is approved during that period by resolution of each House of Parliament.

(5) The period referred to in subsection (4)(b) is the period of 40 days- (a) beginning with the day on which the order is made, and (b) ignoring any period during which Parliament is dissolved or

prorogued or during which both Houses are adjourned for more than four days.

44

(6) The fact that an order ceases to have effect by virtue of subsection (4)-

(a) shall not affect the lawfulness of anything done before the order ceases to have effect, and

(b) shall not prevent the making of a new order.

(7) Sections 21 to 23 shall by virtue of this subsection cease to have effect at the end of 10th November 2006.

30 Legal proceedings: derogation

(1) In this section "derogation matter" means- (a) a derogation by the United Kingdom from Article 5(1) of the

Convention on Human Rights which relates to the detention of a person where there is an intention to remove or deport him from the United Kingdom, or

(b) the designation under section 14(1) of the Human Rights Act 1998 (c. 42) of a derogation within paragraph (a) above.

(2) A derogation matter may be questioned in legal proceedings only before the Special Immigration Appeals Commission; and the Commission-

(a) is the appropriate tribunal for the purpose of section 7 of the Human Rights Act 1998 in relation to proceedings all or part of which call a derogation matter into question; and

(b) may hear proceedings which could, but for this subsection, be brought in the High Court or the Court of Session.

(3) In relation to proceedings brought by virtue of subsection (2)- (a) section 6 of the Special Immigration Appeals Commission Act

1997 (c. 68) (person to represent appellant's interests) shall apply with the reference to the appellant being treated as a reference to any party to the proceedings,

(b) rules under section 5 or 8 of that Act (general procedure; and leave to appeal) shall apply with any modification which the Commission considers necessary, and

(c) in the case of proceedings brought by virtue of subsection (2)(b), the Commission may do anything which the High Court may do (in the case of proceedings which could have been brought in that court) or which the Court of Session may do (in the case of proceedings which could have been brought in that court).

(4) The Commission's power to award costs (or, in Scotland, expenses) by virtue of subsection (3)(c) may be exercised only in relation to such part of proceedings before it as calls a derogation matter into question.

45

(5) In relation to proceedings brought by virtue of subsection (2)(a) or (b)-

(a) an appeal may be brought to the appropriate appeal court (within the meaning of section 7 of the Special Immigration Appeals Commission Act 1997 (c. 68)) with the leave of the Commission or, if that leave is refused, with the leave of the appropriate appeal court, and

(b) the appropriate appeal court may consider and do only those things which it could consider and do in an appeal brought from the High Court or the Court of Session in proceedings for judicial review.

(6) In relation to proceedings which are entertained by the Commission under subsection (2) but are not brought by virtue of subsection (2)(a) or (b), subsection (4) shall apply in so far as the proceedings call a derogation matter into question.

(7) In this section "the Convention on Human Rights" has the meaning given to "the Convention" by section 21(1) of the Human Rights Act 1998 (c. 42).

31 Interpretation

A reference in section 22, 23 or 24 to a provision of the Immigration Act 1971 (c. 77) includes a reference to that provision as applied by-

(a) another provision of that Act, or (b) another Act.

32 Channel Islands and Isle of Man

Her Majesty may by Order in Council direct that sections 21 to 31 shall extend, with such modifications as appear to Her Majesty to be appropriate, to any of the Channel Islands or the Isle of Man.

Refugee Convention

33 Certificate that Convention does not apply

(1) This section applies to an asylum appeal before the Special

Immigration Appeals Commission where the Secretary of State issues a certificate that-

(a) the appellant is not entitled to the protection of Article 33(1) of the Refugee Convention because Article 1(F) or 33(2) applies to him (whether or not he would be entitled to protection if that Article did not apply), and

46

(b) the removal of the appellant from the United Kingdom would be conducive to the public good.

(2) In this section- "asylum appeal" means an appeal under section 2 of the Special

Immigration Appeals Commission Act 1997 (c. 68) in which the appellant makes a claim for asylum (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33)), and

"the Refugee Convention" has the meaning given by that section.

(3) Where this section applies the Commission must begin its substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate.

(4) If the Commission agrees with those statements it must dismiss such part of the asylum appeal as amounts to a claim for asylum (before considering any other aspect of the case).

(5) If the Commission does not agree with those statements it must quash the decision or action against which the asylum appeal is brought.

(6) Where a decision or action is quashed under subsection (5)- (a) the quashing shall not prejudice any later decision or action,

whether taken on the grounds of a change of circumstance or otherwise, and

(b) the claim for asylum made in the course of the asylum appeal shall be treated for the purposes of section 15 of the Immigration and Asylum Act 1999 (interim protection from removal) as undecided until it has been determined whether to take a new decision or action of the kind quashed.

(7) The Secretary of State may revoke a certificate issued under subsection (1).

(8) No court may entertain proceedings for questioning- (a) a decision or action of the Secretary of State in connection with

certification under subsection (1), (b) a decision of the Secretary of State in connection with a claim

for asylum (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999) in a case in respect of which he issues a certificate under subsection (1) above, or

(c) a decision or action of the Secretary of State taken as a consequence of the dismissal of all or part of an asylum appeal in pursuance of subsection (4).

(9) Subsection (8) shall not prevent an appeal under section 7 of the Special Immigration Appeals Commission Act 1997 (appeal on point of law).

47

(10) Her Majesty may by Order in Council direct that this section shall extend, with such modifications as appear to Her Majesty to be appropriate, to any of the Channel Islands or the Isle of Man.

34 Construction

(1) Articles 1(F) and 33(2) of the Refugee Convention (exclusions: war criminals, national security, &c.) shall not be taken to require consideration of the gravity of-

(a) events or fear by virtue of which Article 1(A) would or might apply to a person if Article 1(F) did not apply, or

(b) a threat by reason of which Article 33(1) would or might apply to a person if Article 33(2) did not apply.

(2) In this section "the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to the Convention.

Special Immigration Appeals Commission

35 Status of Commission

At the end of section 1 of the Special Immigration Appeals Commission

Act 1997 (c. 68) insert- (4) A decision of the Commission shall be questioned in legal proceedings only in accordance with-

(a) section 7, or

(b) section 30(5)(a) of the Anti-terrorism, Crime and Security Act 2001 (derogation)."

Fingerprints

36 Destruction of fingerprints

(1) In section 143 of the Immigration and Asylum Act 1999 (c. 33) (destruction of fingerprints)-

(a) subsections (3) to (8) (requirement to destroy fingerprints on resolution of asylum and immigration cases) shall cease to have effect,

(b) in subsection (9) (dependants) after "F" insert "(within the meaning of section 141(7))", and

(c) subsection (14) (interpretation) shall cease to have effect.

(2) Subsection (1)- (a) shall have effect in relation to fingerprints whether taken before

or after the coming into force of this section, and

48

(b) in relation to fingerprints which before the coming into force of this section were required by section 143 to be destroyed, shall be treated as having had effect before the requirement arose.