It is with a melancholy heart that the following observation is made: terrorism is more than ever still a very real threat. Immigration policy remains high on the ‘finger-pointing’ list for being a contributing factor. A fair comment? It’s far from an easy one to call. Recent press will show that proposals have been made to put in place effective legislation in an attempt to control the terrorist threat levels in the UK. The resulting Counter Terrorism and Security Bill passed a second reading in the House of Commons on 2 December and is currently being considered by a Committee of the whole House.
NO PASSPORT, NO FIGHTING
Chapter 1, Schedule 1 of the Bill makes provision for the seizure and temporary retention of travel documents where a person is suspected of leaving the UK with the intention of participating in terrorism-related activity.
With the UK’s threat level having been raised from ‘substantial’ to ‘severe’, the government says it has seen a rise in the number of individuals travelling abroad to engage in actions that are terrorism-related. It is estimated more than 500 Britons have travelled to Syria and Iraq, however statistics show that just 24 have had their passports seized. It is clear that the relevant law enforcement agencies have found it difficult to immediately seize the passports of individuals in these circumstances. The government’s intentions on this issue are clear: to prevent British nationals and foreign nationals from travelling abroad where there is evidence that they will be involved in either terrorism training, or the planning or implementation of terrorist activities. This is achieved by immediately disrupting the travel of those individuals suspected by the secret services of travelling for this purpose; reducing the impact of such individuals’ returning to the UK with enhanced terrorism-related capabilities; and facilitating police and operational partner’s investigations of the travel intentions and threat posed by such persons.
In effect, police officers and Border Force officers (under guidance from a police officer) would have the power to seize and retain a passport for up to 30 days, with a magistrate’s review after 14 days – and the passports could be taken multiple times.
The power would enable law enforcement agents to stop a suspected individual and search for, seize and retain travel documents, provided there are reasonable grounds for doing so.
The risk with the proposed legislation, in its current draft, is that the only remedy individuals will be left with is to bring a Judicial Review claim if they feel they have been unfairly or improperly stopped and had their passport seized. We wait to see the Home Office’s code of practice/policy guidance dealing with the issues pertinent to their objectives.
TEMPORARY EXCLUSION ORDERS (TEO)
Another provision to protect the state against terror is, again, aimed at temporarily disrupting the return of a British citizen to the UK where they are suspected of being involved in terrorist activity abroad. This will enable the secretary of state for the Home Department (SSHD) to monitor the individual’s return in a controlled manner, in an attempt to reduce security threats to the UK.
Under the Immigration Act 2014, the SSHD is already permitted to deprive dual citizens of their British citizenship. This provision under s40 of the British Nationality Act (BNA) 1981 enables citizenship to be taken from naturalised British citizens if such action is considered conducive to the public good and the deprivation of British citizenship would not render them stateless. These deprivation powers do not apply to individuals who are solely British nationals.
Due to the number of British nationals that have recently travelled abroad to fight in Iraq and Syria, the SSHD felt it necessary to put in place a supervisory system to manage the return of these people to the UK, who are considered to pose a threat to national security.
The Bill proposes that a TEO will be imposed on an individual if each of the following conditions are met:
- The SSHD reasonably suspects that the individual is or has been involved in a terrorism-related activity outside of the UK;
- The SSHD reasonably considers the TEO necessary to protect members of the public from risk of harm;
- The SSHD reasonably considers that the individual is outside the UK; and
- The individual has the right of abode in the UK.
The TEO comes into force for a period of two years once notice has been given to the individual. Throughout the two-year period of exclusion the SSHD must review condition (2) at all times to ensure it still remains relevant. On grant of a TEO, the SSHD essentially invalidates the individual’s British passport.
Permit to return
An individual subject to a TEO is only allowed to re-enter the UK if they receive a permit to return, which would be issued following an application process. If the application is successful, the SSHD must issue the permit within a reasonable period of time. There will be conditions attached to the permit, such as restricted timeframes on return and the location to which they must return, which will be decided upon by the SSHD prior to issuance of the permit. In addition, the SSHD reserves the power to withdraw a TEO without application from the individual and is able to impose a further TEO should it be necessary. At present the proposal does not cap the number of TEOs issued per person.
Obligations after return
The SSHD can choose to impose any or all of the permitted obligations under Schedule 1 of the Terrorism Prevention and Investigation Measures Act 2011:
- Reporting to a police station.
- Required attendance at an appointment.
- Notify the police of their place of residence and update the police with a change of residence.
Failure to comply with these obligations will be an offence. A further offence is committed if an individual, subject to a TEO, arrives in the UK in contravention of the restriction specified in the order, without a reasonable excuse.
Can this proposal be attained?
As with all legislation, there is some resistance to these proposed changes. There are a number of details that still need to be considered. Will countries agree to detain these individuals on behalf of Great Britain? Will an international agreement be written and signed by countries worldwide? If so, what if some countries refuse to ratify the agreement? What financial impact will this have on other countries? Who will carry the financial burden?
The biggest issue that arises from the proposed TEO is the potential for the individual to be rendered stateless. It is no secret that Theresa May is keen to strip suspected terrorists of their British nationality, but is this something that can be lawfully achieved?
In 2013, the Supreme Court rejected May’s attempt to remove Mr Al-Jedda’s citizenship (Home Department v Al-Jedda ) on the basis that it would render him stateless. The SSHD argued that, at the date of deprivation, Mr Al-Jedda could have applied for or obtained immediate restoration of his Iraqi nationality. However, the Court held that this premise was unlikely as Mr Al-Jedda had to be in Iraq to apply and the application was still discretionary.
Historically, the UK has ratified a number of international treaties which focus on the prevention of statelessness, namely the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. Plus, the UK owes stateless refugee’s obligations under the 1951 Refugee Convention.
The 1961 Convention did carry with it an exception for individuals who conduct themselves ‘in a manner seriously prejudicial to the vital interests of the state.’ However, this was considered an optional clause and intentions to rely on this exception had to be stated at the time the Convention was ratified. Although Britain confirmed such intention, it was only adopted in relation to naturalised British citizens, hence s40 of the BNA 1981.
As such, departure from the European Convention on Human Rights alone is an unlikely solution to counteract the potential issue of statelessness, as May will still encounter legislative obstacles in her attempt to obtain approval on these proposals.
EXTENSION OF S2D OF THE SPECIAL IMMIGRATION APPEALS ACT 1997
The effect of Clause 37 of the Bill is to extend the provisions of s2D of the Special Immigration Appeals Act 1997, which concerns challenges to the refusal to naturalise a non-EEA as a British citizen.
A decision to refuse to grant citizenship at present does not attract a statutory right of appeal and can only be challenged by way of Judicial Review. To ensure that any sensitive material relied upon in such a refusal can be protected during any Judicial Review challenge, the Justice and Security Act (JSA) 2013 introduced the power for the Home Secretary to certify such decisions, meaning that any challenge to the refusal would only be heard before Special Immigration Appeals Commission (SIAC). It is only in SIAC that sensitive material can be protected.
While introducing the JSA 2013, the government did not make provision for ss18(1) and 18(2) of the BNA 1981, relating to individuals wishing to naturalise as British Overseas Territories Citizens (BOTC). It has become apparent that if the Home Secretary wishes to refuse to grant BOTC to an individual based on sensitive information, there is no power in law to protect that sensitive material should the decision be challenged by way of Judicial Review. The only current method available to the courts to protect sensitive material from disclosure in an open court is Public Interest Immunity (PII), which can result in the complete exclusion of that material. Any judgment reached is therefore not informed by that material, however important it is in order to defend the case.
If the new measures come into force, the process involved will be as follows:
- individual applies to be naturalised as a BOTC;
- decision is made;
- if successful, process ends. If unsuccessful:
- individual can accept this decision, or challenge.
- If challenging, then the applicant may lodge a judicial review, the hearing of which will be before SIAC, where sensitive material would be protected.
The anticipated numbers of cases where the above will apply are considered to be extremely low. In fact, the Home Office’s impact assessment estimates that there will be one case per year. Nevertheless, the government are certainly keen on ensuring the law surrounding the acquisition of British citizenship is watertight in their battle to stop British nationals travelling abroad to partake in acts of terrorism or to fight alongside organisations recognised as terrorist.
The Bill has been judged by some as an impulsive reaction to the current rise in threat levels. Legislation carries with it many purposes and is an instrument to enable rapid changes. Why, then, has this proposal received such a strong reaction? The government would soon be condemned if they showed no reaction at all. So, the final question to be asked is will the Bill be passed? Only time will tell. With the recent tragedies that have been witnessed in Paris, what is apparent is that the fight against terrorism is a global one and surely prevention should be too.
‘There is no priority higher than the prevention of terrorism’ (John Ashcroft).
By Sundeep Rathod and Lucy Garrett, solicitors, Magrath LLP.