Stateless Terrorists: Domestic and International Legal Implications

utf-8UNHCR-GLC-Statelessness-Poster-A1-screen2 (2)We are delighted to welcome this guest post by Ntina Tzouvala and Rumyana Grozdanova on Theresa May’s announcement of her intention to repeal domestic legislation in order to be able to deprive terrorism suspects of their UK citizenship. Ntina is Deputy Co-Convener of Law and Global Justice and a PhD student at Durham Law School who is currently researching on history and theory of public international law. You can contact her here or follow her on Twitter @ntinatzouvala

Rumyana is Deputy Co-Convener of the Human Rights Centre and a PhD student at Durham Law School who is currently researching the US programme of Extraordinary Rendition and its effects on the international legal framework. You can contact her here or follow her on Twitter @rgrozdan

On 12 November 2013 the Home Secretary, Theresa May, announced her intention to repeal domestic legislation in order to be able to deprive terrorism suspects of their UK citizenship even if this renders them stateless. In years following 9/11 and 7/7, domestic and regional counter-terrorism responses have reshaped the relationship between individuals and the state and in particular the relationship between individuals suspected of terrorism and the state. Through broad anti-terrorism legislation, law has become a tool for persecuting individuals suspected of terrorism; the new measures proposed by Theresa May are yet another domestic step in what has been described as the ‘weaponisation of law’ (1). In the context of the transnational counter-terrorism operations led by the US and UK (also known as the ‘War on Terror’), the UK Terrorism Act 2000 introduced tougher and more extensive anti-terrorism measures in comparison the USA Patriot Act 2001. The existing definitions of terrorism were vastly expanded from politically motivated violence to include politically and religiously motivated serious property damage and interference with electronic systems; protests and strikes could thus potentially fall under the definition as well. The 2000 Act also outlined a proscription regime based on intelligence evidence, which by its nature was secret and introduced offences relating to being a member of or identifying with a proscribed organisation. Other broad offences were introduced, which appeared to push the boundaries of inchoate or pre-crime liability by criminalising the possession of articles. Due to the broad scope and span of the legislation, these offences could potentially by applied to individuals who are suspected of terrorist activities. This legislative approach towards a permanent basis for anti-terrorism measures in times of normalcy as opposed to times of national exigency was followed by the Anti-Terrorism, Crime and Security Act, 2001. The 2001 Act revived the offences of failure to provide information to the authorities, the use of immigration law as part of anti-terrorism law and a renewable 15 month derogation from Article 5(1)(f) the European Convention on Human Rights. The derogation in question was used to authorise indeterminate administrative detention of non-UK citizens suspected of involvement in terrorist activities however could not be deported due to the principle of non-refoulement. It was struck down by a House of Lords decision, which found the post 9/11 derogation to be both disproportionate and discriminatory by focusing on non-UK citizens only as posing a threat of terrorist activities. Perhaps the most significant legal development of the post 9/11 and 7/7 UK approach is the return to the regular renewal of the anti-terrorism legislation, which in 2006 and 2008 included minor expansions to the definition of terrorism (2). In short, domestically, the adopted definitions of terrorism have legitimised and normalised broad sweeping counter-terrorism measures. A significant development within this context is the recent case of R v. Gul. The UK Supreme Court found that there is no basis on which the ‘natural, very wide, meaning’ of the definition of terrorism under the 2000 legislation could be read restrictively as the definition ‘had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take.’ Thus potentially anyone can be a suspect of terrorism or terrorist related activities as illustrated aptly by the recent 9 hour detention of David Miranda at Heathrow Airport. Historically, few words have been plagued by so much indeterminacy, subjectivity and political disagreement as the word ‘terrorism’ (3). The term has gradually developed into one of the most pejorative words in the English language with a power focused on condemnation and response rather than explanation. Taking into account the pejorative connotations associated with the term terrorist suspect and the potential implications for an individual under the current anti-terrorism framework in the UK, the reasons behind Theresa May’s proposal lie elsewhere.

It could be assumed that this response to the recent Supreme Court decision in the case of Secretary of State for the Home Department v. Al-Jedda. In this case, the Court found that section 40(4) of the British Nationality Act 1981 prevents the Home Secretary of depriving someone from his/her British citizenship ‘if she is satisfied that the order would make them stateless.  By repealing the law, Theresa May will seek to remove this restriction and allow for more flexibly in measures taken against suspected terrorists. Significantly, the Secretary of State presently commands a wide discretion when it comes to deprivation of citizenship. Since 2002 the Secretary of State has the right to deprive of citizenship not only naturalised citizens, as was the case until then, but also has power to remove citizenship from all British citizens. The Act was further amended in 2006 to expand the discretion of the state – now any British citizen can be deprived of their citizenship ‘if the Secretary of State is satisfied that deprivation would be conducive to the public good’. Prior to this amendment, the Secretary of State had to be satisfied that the person had done something ‘seriously prejudicial to the vital interests of the United Kingdom. The inherent indeterminate scope and ambiguity of the ‘public good’ criteria has thus significantly enhanced state power when it comes to removal of citizenship.

Section 40(4) is perhaps one of the last legal safeguards against misuses of the Act. Statelessness significantly imperils the rights of an individual; most crucially it renders them exceptionally vulnerable as it would be almost impossible to acquire travel and identification documents and legally reside in a territory. The international community was determined to limit the occurrence of such precarious experiences after the infamous Nuremberg Laws and the Holocaust. Following World War II, the granting and removing of nationality ceased to be an unlimited prerogative of the state as international legal documents began imposing constraints on signatory states. Article 15(1) of the Universal Declaration of Human Rights adopted in 1948 notes that  ‘Everyone has the right to a nationality’. While the Declaration did not have a legally binding character when adopted, today it is generally accepted that it has acquired international customary law status and is therefore binding upon all states. Furthermore, two conventions with exclusively focusing on statelessness have been drafted under the auspices of the UN. The 1956 Convention Relating to the Status of Stateless Persons attempted to mitigate the adverse impact of statelessness by designating a minimum standard of treatment for stateless people. The 1961 Convention on the Reduction of Statelessness sought to reduce the occurrence of the phenomenon by imposing significant limitations on states’ discretion to manage their citizenship laws with a view to limit incidents of statelessness.  This Convention came into force in 1975 and after this date its provisions set out significant international legal limitations for states parties to it, including the UK, which ratified the Convention in 1966. Articles 7, 8 and 9 impose limitations on the deprivation of nationality if a state act results in rendering an individual stateless; therefore, the UK’s discretion on the matter is curbed under international law.

Admittedly, the UK has altered its obligations under the treaty by tabling a reservation. Nevertheless, the repeal proposed by the Home Secretary appears to exceed the scope of the reservation itself. The reservation only covers the deprivation of citizenship of naturalised citizens. Hence, one could reasonably argue that the 2002 amendment of the British Nationality Act 1981 was already in violation of the 1961 Convention. More importantly, the text and spirit of the reservation strongly indicates that it refers to individuals convicted by a court of law for ‘seriously prejudicing the vital interests of Her Britannic Majesty’. There is no evidence that the reservation was intended to be applicable to ‘suspects of terrorism’. Such an interpretation broadens the scope and span of the reservation in a manner that undermines the object and purpose of the Convention itself (5). Hence, the mantra that British citizenship is ‘a privilege, not a right’ and as a corollary that it is strictly and solely within the UK Government’s authority to manage citizenship rules are deceptive, as they involve (purposefully) a disregard for international legal obligations.

(1) Kennedy, D., Of War and Law (2006, Princeton; Princeton University Press) and Murphy, C. C., EU Counter-Terrorism Law (2012, Oxford; Hart Publishing);

(2) The list of Acts containing the term ‘terrorism’ in their title and the full texts of the Terrorism Act 2006 and the Counter-Terrorism Act 2008 are available at http://www.legislation.gov.uk/primary?title=Terrorism

(3) Saul, B., Defining Terrorism in International Law (2006, New York; Oxford University Press), see also Gearty, C., Liberty & Security (2013, Cambridge; Polity Press)

(4) United Kingdom of Great Britain and Northern Ireland

“[The Government of the United Kingdom declares that], in accordance with paragraph 3 (a) of Article 8 of the Convention, notwithstanding the provisions of paragraph 1 of Article 8, the United Kingdom retains the right to deprive a naturalised person of his nationality on the following grounds, being grounds existing in United Kingdom law at the present time:  that, inconsistently with his duty of loyalty to Her Britannic Majesty, the person

“(i) Has, in disregard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from, another State, or
“(ii) Has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty.”

(5) Article 31(1) of the Vienna Convention on the Law of Treaties provides us with a useful guide as for the interpretation of treaty obligations: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Stateless Terrorists: Domestic and International Legal Implications

The Ombudsman and Direct Provision

EmilyYesterday, the Ombudsman, Emily O’Reilly launched a well reasoned critique of the direct provision system (news coverage here and all Human Rights in Ireland’s posts on direct provision here ). This follows on from Ombudsman O’Reilly’s  most recent investigation relating to an asylum seeker refused a social welfare payment that she was entitled to.While the Ombudsman is prevented from investigating maladministration in immigration and naturalisation issues, so the Irish Nationality and Immigration Service is beyond its supervisory powers, the governmental departments responsible for the direct provision system are not. These include the Department of Justice and Equality, through the provision of accommodation via the Reception and Integration Agency and the Department of Social Protection , through making direct provision allowance payment of €19.10 per week per adult and €9.60 per week per child._Although as I have noted on a number of occasions, the Department is prohibited from making this payment by virtue of Irish social welfare law.

The reliance on administrative system of direct provision that actively undermined statutory rights for a significant period between 2000-2009 shows how easily legal rights, in particular legislative rights under social welfare law, can be  placed at naught through:

  1. A Parliament subservient to the Executive,
  2. An Executive intent on impoverishing an unpopular group in society,
  3. Public disinterest in the rights of asylum seekers and/or an active hostility towards those claiming asylum;
  4. Those administering the social welfare system allowing their discretion to be fettered by government circulars (and ignoring law) ;
  5. Courts that are wary of impinging or in any way recognising rights of life, bodily integrity, and  family rights as including any form of social and economic protections.

Despite a steady stream of Parliamentary questions on the system of direct provision in the last number of weeks, there seems to be no appetite for reform in Government. Although Emily O’Reilly will be setting off to Europe shortly, it would be hoped that the interest of the Ombudsman’s office on the issue of direct provision will continue.

The Ombudsman and Direct Provision

Challenging Illegality: Direct Provision, Social Welfare Law & Asylum Seekers in Ireland

Houses of OireachtasThe Office of the Ombudsman has recently played a significant role in highlighting  maladministration in the operation of our social welfare legal code, in particular in relation to  supplementary welfare allowance and direct provision for asylum seekers over the last few days.

Supplementary Welfare Allowance and Direct Provision

The Ombudsman has release her report, Appeal Overruled: A failure to provide basic income for a family seeking asylum This report related to the refusal of a Superintendent Community Welfare Officer to implement in full a decision of an Appeals Officer that an asylum seeker was entitled to the full rate of supplementary welfare allowance, a basic income paid to all whose means do not meet their needs. The complainant arrived in Ireland prior to 2009 so was not excluded, as such, from receiving supplementary welfare allowance, however was placed within the direct provision system (see here for extensive evaluations of the direct provision system). The complainant left for very serious personal and health reasons. Despite decisions of social welfare Appeals Officers being “final and conclusive“, the decision was not implemented for 13 months and the Superintendent CWO decided, without ever putting this issue to the complainant, that she was not habitually resident. The actions of the Superintendent CWO, seeking to undermine the decision of an Appeals Officer and making unwarranted assumptions about the ‘high quality’ of the direct provision accommodation that the complainant left (after a suicide attempt by her daughter) came in for particular criticism from the Ombudsman.  It also should be noted that the actions of other employees of the HSE, social workers and Child and Adolescent Mental Health Service, were praised for their actions. The decision of the Superintendent CWO to refuse to abide by the decision of the Appeals Officer was “incorrect and without justification”. The Ombudsman recommended that a consolatory (time and trouble) payment of €3,000 be made to the complainant due to the actions of the HSE and noted the severe impact that the non-payment of supplementary welfare allowance had had for this complainant and her family. In concluding her analysis, the Ombudsman noted:

….[I]n finalising this report, the Ombudsman has been aware of the significant and growing public unease regarding the arrangements for asylum seekers in this country. More and more questions are being raised now about the appropriateness of  the ‘Direct Provision’ arrangements particularly as they impact on family life, on mental health and on the welfare of children. However the Ombudsman, on the basis of one investigation cannot purport to make a finding on this general issue.

 

Towards Legality in Direct Provision

Asylum seekers have been excluded (since the Social Welfare and Pensions (No. 2) Act 2009) from receiving supplementary welfare allowance. When direct provision was introduced, it was purportedly done under the supplementary welfare allowance scheme (see the  Free Legal Advice Centre‘s extensive work on this issue here and my 2007 article on direct provision here ), with accommodation and food in kind, and a small allowance to make up the total maximum payment that can be made under the supplementary welfare allowance scheme. I would argue that since 2009, whereby asylum seekers are now absolutely prohibited from receiving supplementary welfare allowance, there is no legal basis for the Department of Social Protection to continue to make the small monetary payment of €19.10 per week per adult and €19.10 per week per child.   In recent weeks, Senator Jillian van Turnhout and Derek Nolan TD have raised the issue of direct provision in the Oireachtas. Senator van Turnhout asked the Minister for Justice what the legislative basis for the payment of €19.10 per week is, given that the 2009 Act excludes asylum seekers from receiving supplementary welfare allowance.  The Minister for Health (standing in for the Minister for Justice) stated that direct provision was merely an administrative scheme for which there was no need to have any legislative basis . The Minister for Health noted that:

…flexibility and adaptability of the direct provision system would not be assisted but, possibly, hindered by specific legislation underpinning it.

In response to Derek Nolan’s question, the Minister for Social Protection, Joan Burton TD stated:

Following the introduction of the statutory habitual residence condition in May 2004 and subsequent legislation, asylum seekers are not entitled to receive most social welfare payments. The payment of the weekly direct provision allowance is made on an administrative basis by this Department on behalf of the Department of Justice and Equality.

So the core argument emerging from government ministers, is that direct provision payment is a wholly administrative scheme  unrelated to legislative provision of supplementary welfare allowance.  Successive Ministers for Social Protection have stated that the €19.10 per week per adult/€9.60 per week per child, is a supplementary welfare allowance payment (see here and here).

In addition, Article 35 of the Social Welfare (Consolidated Supplementary Welfare Allowance)Regulations 2007 headed ‘Non-Cash Benefits’ states that where asylum seekers made an application for supplementary welfare allowance (prior to the 2009 Act) the following would be excluded:

 …the net cash value to the person of meals, accommodation and related services provided under a scheme administered by the Department of Justice, Equality and Law Reform and known as direct provision, where the costs are met in full by the State.

The approach of successive governments towards direct provision and their failure to grasp the issue by the neck, now means that at the very least, the Department of Social Protection are acting outside its powers and contrary to the Social Welfare and Pensions Act 2009 by providing the €19.10 per week to asylum seekers (regardless of whoever the Department of Social Protection believes it is acting for). The approach of the current government, in seeking not to provide a legislative basis for direct provision accommodation and direct provision payment, is part of an overarching strategy since the introduction of direct provision to ensure that asylum seekers in Ireland lack the most basic of rights. While government ministers correctly point out that we have international obligations to ensure that asylum seekers are not destitute while their protection claims are being assessed, this must be done so in a manner that complies with Irish social welfare law. There is an urgent need to ensure that if the government is to continue to utilise the system of direct provision to meet our international obligations, clear legislation is introduced that sets down the right of asylum seekers to access direct provision. It is hoped that it will not take a full investigation by the Ombudsman to highlight to government the totally unsatisfactory nature of the administrative-legal regime that governs direct provision.

Challenging Illegality: Direct Provision, Social Welfare Law & Asylum Seekers in Ireland

The Direct Provision System: The Time for Change is Now

Over recent weeks, the issue of direct provision has been raised on several occasions within and outside the Irish Parliament (see here, here and here). Breda O’Brien’s excellent article in Saturday’s Irish Times and a letter by a practicing Cork based GP in today’s Irish Times add further weight to the calls (since 2001) for a fundamental reform of this punitive and penal system. A system that indefinitely denies a right to work no matter how long it takes to take a decision on  a refugee/subsidiary protection/leave to remain claim and forces some asylum seekers into communal living for years on end is not fit for purpose.

The Minister for Justice, Alan Shatter TD and the Secretary General of the Department of Justice (pp. 9-11, p. 13) have defended the system on the basis of a 2010 Value for Money Report. This report is deeply flawed for a number of reasons:

  1. The only people responsible for drafting the report were officials from government departments. There were no representatives from those living in direct provision or of any civil society organisations who seek to represent the interests of asylum seekers;
  2. It was presumed (totally unreasonably) Continue reading “The Direct Provision System: The Time for Change is Now”
The Direct Provision System: The Time for Change is Now

Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond

The Department of An Taoiseach has published the overly ambitious legislative agenda for the current Dáil and Seanad session. The Immigration, Residence and Protection Bill 2010 will (hopefully!) be heading to Committee Stage this term. The 2010 Immigration Bill has been around in essence since 2006, and will unlikely be coming into force for some time to come yet, despite severe need for fundamental reform of Ireland’s immigration and asylum laws.  Previous blog posts have discussed concerns with the 2010 Bill and its provisions, as well as noting the severe delays in debating this bill [see, here, here and here].  In the immediate future, a number of significant bills are expected be published that will engage Ireland’s human rights obligations under domestic, European and international human rights law. Of particular note in this regard will be establishing the DNA database (see Vicky’s Blog Carnival posts on DNA databases) and reforming the law on mental capacity (see Law Reform Commission’s report here and Human Rights in Ireland contributions to the wider capacity debate here).

A large number of other  Schemes/Heads of Bills are currently being drafted up as bills, in particular as regards criminal justice issues, corruption Continue reading “Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond”

Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond

The case of Mauro Manuel and the deportation of de facto Dutch citizens

We are delighted to welcome this second guest post from Anne Neylon. Anne is a PhD candidate at University College Cork. She is currently a Visiting Research Fellow at the Refugee Studies Centre at the University of Oxford.

On October 31st last, eighteen year old Angolan Mauro Manuel, who arrived in the Netherlands aged 10 as a separated child seeking asylum was told by the Dutch parliament that he may not remain in the state now that he is an adult. Although Mauro Manuel now sees the Netherlands as the only state with which he identifies, this attachment has not been deemed sufficient to allow him to stay on an indefinite basis. The case of Mauro Manuel raises questions about what citizenship really means and how the advance of globalization has acted to challenge the way in which one’s identity and ability to acquire citizenship is constructed.

Continue reading “The case of Mauro Manuel and the deportation of de facto Dutch citizens”

The case of Mauro Manuel and the deportation of de facto Dutch citizens

Forced Marriage, Age and Immigration.

‘The vice of the rule is precisely that, in an endeavour not to single out those communities where forced marriage is likeliest to occur, it fails to discriminate.’

Forced married is not yet criminalised in the UK and is generally regulated at civil law. [1] Yesterday, the UK Supreme Court began to hear oral arguments in Bibi v SSHD (reported at High Court and Court of Appeal as Quila v SSHD.) It may be useful to review where we are with the case now. The case concerns two individuals; Pakistani citizen Shakira Bibi and Chilean national Diego Aguilar,[2] who were refused permission to join their UK citizen spouses in the UK under an immigration rule designed to prevent forced marriages. There was no suggestion that either marriage at issue was forced. However, as teenagers the couples fell afoul of this rule since it is essentially an age restriction. It provides that individuals aged under 21 may not settle in the UK under a spousal visa. The rule operates as an irrebuttable presumption that a marriage between young people, one of whom is not a UK national, is a forced marriage. The Home Office’s rationale for imposing the rule is that a significant proportion of those forced into marriage are aged 18-20, that slightly older individuals are better placed to resist pressure to marry, and that removing the immigration status incentive to forcing younger people into marriage would therefore do more than provide temporary relief for some people at risk of forced marriage, but would actually prevent them (the policy is set out in great detail in the High Court judgment). Compassionate exceptions may be made where, for instance a wife is already pregnant, but there is no scope for a couple to escape the application of the rule by demonstrating that their marriage was not in fact forced and so the exemption was not applied to the appellants.

Continue reading “Forced Marriage, Age and Immigration.”

Forced Marriage, Age and Immigration.

S & Another v MJELR and Safeguarding Marriage.

The rights conferred by Article 41 of the Constitution are nevertheless real rights and must be regarded as such by the Minister. They cannot be treated as if, so to speak, they were mere discards from dummy in a game of bridge in which the Minister as declarer has nominated the integrity of the asylum system as the trump suit.

I am in some danger, at this point, of becoming a Hogan J. fan-girl. S & Anor. v. MJELR is another landmark in his formal but functional Article 41 immigration jurisprudence. In March, Hogan J. considered a married couple’s challenge to a refusal by the Minister for Justice to revoke a deportation order pursuant to s. 3 of the Immigration Act 1999. The order affected E; the Nigerian wife of S, an Irishman with physical and intellectual disabilities. The couple had met a little before the Minister decided to deport her on foot of a failed application for asylum. They have been married for over a year, and the marriage is valid (concerns about S’s capacity to marry had been considered and dismissed at an earlier hearing). Over time, E has become heavily involved in S’s care and they have lived together as man and wife.

Continue reading “S & Another v MJELR and Safeguarding Marriage.”

S & Another v MJELR and Safeguarding Marriage.

Non-National Failure to Produce ID Offence Deemed Unconstitutional

On Friday last, March 25th 2011, in ED v DPP the High Court ruled that section 12 of the Immigration Act 2004 was unconstitutional. Section 12 provided that non-national persons (other than those born in Ireland or under the age of 16) shall on the demand of an immigration officer or member of the Garda Síochána, produce (a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and (b) in case he or she is registered or deemed to be registered under the Act, his or her registration certificate. Failure to produce the required documentation without providing a satisfactory explanation of the circumstances which prevented the person from so doing was deemed an offence punishable by a fine of up to €3000 or imprisonment for up to 12 months or both.

While the judgment itself is as yet unavailable, the Irish Times reports that the finding of unconstitutionality by the High Court centred on the vagueness and uncertainty of the legislative provision, rather than on the concept of requiring the production of identification documents in and of itself. Continue reading “Non-National Failure to Produce ID Offence Deemed Unconstitutional”

Non-National Failure to Produce ID Offence Deemed Unconstitutional

Deprivation of Permission to Work: Asylum Seekers and Article 8 ECHR

Human Rights in Ireland is delighted to welcome this guest post from Gráinne Mellon. Gráinne is a pupil barrister at 36 Bedford Row Chambers in London. She is a graduate of Trinity College Dublin and the London School of Economics where she specialised in immigration and human rights law.

Ireland is only one of two member states of the European Union (the other being Denmark) that has failed to ratify the 2003 EU Directive on the Minimum Standards for the Reception of Asylum Seekers. The Reception Directive, as it is known, lays down the minimum conditions for asylum seekers and provides that they must be allowed to work after a year of waiting for a decision, or before.  Asylum seekers in Ireland therefore are not permitted to work in any capacity pending the resolution of their claim; regardless of how long this takes. The UK, on the other-hand, ratified the Directive but excluded subsequent asylum seekers from accruing any right to work in doing so. In a landmark case last year of ZO (Somalia) v. Secretary of State for the Home Department [2010] 1 WLR 1948 the UK Supreme Court ruled this exclusion was unlawful. Although the ruling was based solely on the Reception Directive, litigation for damages both for State Liability under EU law and breach of Article 8 is ongoing.

It is clear therefore that despite not being subject to the requirements of the Directive, the Irish government remains bound by Article 8 of the ECHR in respect of immigration policy. Two recent decisions of the High Court in London have dealt Continue reading “Deprivation of Permission to Work: Asylum Seekers and Article 8 ECHR”

Deprivation of Permission to Work: Asylum Seekers and Article 8 ECHR