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countermeasures directed at the agent of harm and those directed at third parties
and the larger environment. He argued that too many resources had been
devoted to changing driver behaviour before the accident and that harm could
be reduced by greater regulation of third parties and the environment in which
the crash occurred. Thus the objects of a comprehensive traffic safety policy
should not only be bad drivers, but those who constructed the roads, auto
manufacturers and those who responded at the scene of the accident. Haddon
argued that policy-making had to occur on the assumption that not all driver
behaviour could be modified and that some accidents will occur. His contribu-
tion to the field is associated with reforms such as padded dashboards and
airbags which are designed to minimize the harms of accidents.
I have argued elsewhere that the Haddon matrix can be modified to apply
to terrorism.50 Following Haddon, we should assume that at least some

49
National Research Council, Making the Nation Safer: The Role of Science and Technology in
Countering Terrorism (Washington, National Academy Press, 2002).
50
William Haddon ‘A Logical Framework for Categorizing Highway Safety Phenomena and
Activity’ (1972) 12 Journal of Trauma 193. For an application of the Haddon matrix for
preventing and reducing injury to the field of terrorism, see Kent Roach, September 11:
Consequences for Canada (Montreal, McGill-Queens University Press, 2003), at 168–74.
THE CRIMINAL LAW AND TERRORISM 147

terrorist activity cannot be deterred and spend more resources on regulating
the environment before, during and after acts of terrorism so as to minimize
the harms of terrorism. Before the act of terrorism, this means better regula-
tion of sites and substances that are attractive to terrorists. It is particularly
important to take steps to ensure that potential terrorists cannot obtain
access to lethal substances such as toxins, nuclear material and airplanes.
The terrorist attacks that brought down two aircraft in Russia reveal that
more can be done to screen passengers and baggage. Much of this type of
environmental regulation may be achieved by administrative laws that may
present less of a threat to values such as liberty, due process and equality than
the criminal law. Some of these preventive measures may also have the
advantage of making us safer from accidents involving nuclear material and
toxins. The Haddon matrix approach should make us think about what can
be done to minimize harm during and after an act of terrorism. Although this
will be dismissed as defeatist damage control by some, it remains crucial to
minimizing the harms of terrorism. Without evacuation strategies intro-
duced after the 1993 attacks, the death toll at the World Trade Centre
might have been in the tens of thousands.51 The death toll in subsequent
terrorist hostage takings in a Moscow theatre and a Beslan school might
have been reduced by better preparedness and emergency response.
Emergency preparedness also can assist in dealing with natural and man-
made disasters.
Another instrumental concept that could inform a comprehensive anti-
terrorism policy is the idea of responsive regulation advocated by John
Braithwaite. The central idea of responsive regulation is a regulatory pyramid
which allows for the escalation of the state’s response when regulation fails.
Braithwaite stresses that the behaviour of potential wrongdoers can often be
best controlled not by the state, but by third parties who have greater influence
over the target of regulation. Attempts at persuasion, negotiation and peaceful
problem solving lie at the base of the pyramid with escalation to deterrent
threats of punishment and finally to incapacitation of irrational actors.52 It
may well be that persuasion, problem solving and even deterrence can quickly
be ruled out when applied to groups like al Qaeda that seem bent on death
and destruction.53 Nevertheless, it may be very valuable with respect to third
parties who can influence the behaviour of terrorists. One of the dangers of a

51
It took four hours to evacuate the WTC in 1993 whereas all but 2,152 of the 16,400 to 18,800
civilians in the towers were evacuated in under one hour in 2001. The 9/11 Report at 9.4.
52
John Braithwaite, Restorative Justice and Responsive Regulation (Oxford University Press,
2002), at 31–32.
53
Although he recognizes the potential for democratic outlets for grievances in Spain,
Canada and Northern Ireland, Michael Ignatieff argues that the ‘apocalyptic nihilists’ of
al Qaeda ‘cannot be engaged politically and must instead be defeated militarily’. Michael
Ignatieff, The Lesser Evil Political Ethics in an Age of Terror (Toronto, Penguin, 2004), at 99.
KENT ROACH
148

focus on war or criminal law is that softer strategies that address the causes of
terrorism can be ruled out categorically. The 9/11 Commission deserves credit
for recognizing that failed and repressive states and desperation and lack of
education are contributing factors to terrorism that should be addressed.54
A pyramid approach could impose some sense of ordering to various
incapacitation strategies. First order strategies may include administrative
regulation designed to deny potential terrorists access to sites and substances
that can be used for terrorism. Higher up the pyramid would be the use of the
criminal law, preventive detention and even more forceful strategies such as
war. The pyramid idea may also be helpful in making clear that techniques
such as war and preventive detention should be seen as the last resort for
dealing with a terrorist threat. The pyramid is not an end in itself and should
be supplemented by normative analysis that imposes some legality require-
ments on each anti-terrorism instrument.
One danger of a pyramid approach of escalating force against terrorism is
that the very act of mapping out ‘how an immoral society could fight
terrorism’55 may make it easier to use and justify such means. Some techni-
ques such as torture and targeted assassinations should not be placed on the
pyramid and they should remain illegal. At the same time, a variety of
questionable and unrestrained methods are being used in the war against
terrorism and we ignore them at our peril. As Michael Ignatieff has argued,
there needs to be more democratic debate and legal challenges to the variety
of harsh anti-terrorism policies that are being employed.56 There is a norma-
tive need to subject all anti-terrorism measures to some measure of legality.
The United States Supreme Court’s June 2004 decisions in the enemy
combatant and Guantanamo Bay cases reveal some of the potential and
some of the pitfalls of attempts to impose systems of legality on less restrained
alternatives to the criminal law. In both cases, the Bush Administration was
true to its leader’s conviction that it was not enough to serve its enemies with
legal papers. It argued that American courts had no jurisdiction over the
detainees at Guantanamo Bay and that they should defer to the executive
decisions to declare American citizens enemy combatants. It was a victory for
legality that this essentially lawless position only commanded support from
three judges in the Guantanamo Bay case and one judge in the enemy
combatant case. Six judges affirmed habeas corpus jurisdiction over
Guantanamo as an area controlled by the United States and refused to accept
the minority’s argument that the jurisdiction did not extend to non-citizens
held indefinitely off-shore.57


54
The 9/11 Commission Report, at 12.2 and 12.3.
55 56
Alan Dershowitz, Why Terrorism Works, ch. 4. Ignatieff, The Lesser Evil.
57
Rasul v. Bush 124 S Ct 2686 (2004).
THE CRIMINAL LAW AND TERRORISM 149

Four judges led by Justice O’Connor found that Yaser Hamdi, an
American citizen who had been designated an enemy combatant, was entitled
to a diluted version of due process designed to accommodate the state’s
interest in combating terrorism. They would accept a rebuttable presumption
in favour of the government’s evidence, use of hearsay evidence and trial before
a military tribunal. Four other judges would have imposed more demanding
standards of legality. Justice Souter with Justice Ginsberg refused to find
authorization for Hamdi’s detention in Congress’s open-ended declaration
of war against the terrorists, as Justice O’Connor did, and would have
required the legislature to authorize forceful anti-terrorism measures. Justice
Souter also expressed reservations about Justice O’Connor’s dilution of due
process. Justice Scalia joined by Justice Stevens also opposed Justice
O’Connor’s diluted due process as ‘an unheard-of system in which the citizen
rather than the Government bears the burden of proof, testimony is by hearsay
rather than live witnesses, and the presiding officer may well be a ‘‘neutral’’
military officer rather than a judge and jury’. Justice Scalia argued that ‘if
civil rights are to be curtailed during wartime, it must be done openly and
democratically’58 through legislative suspension of habeas corpus. If Congress
did not derogate from this right, Hamdi should be entitled to all of the
benefits of a criminal trial. This approach affirmed the virtues of the criminal
law in requiring proof of guilt of a crime beyond a reasonable doubt, but it
also flirted with the possibility that the legislature through a clear suspension
of habeas corpus could dispense with all pretence with legalities. Justice Scalia
took a dichotomous and daring approach that rejected the pragmatic
sliding scale approach taken by Justice O’Connor. There are many virtues
in maintaining criminal law principles in the face of terror and insisting
that the guilt of terrorists be proven beyond a reasonable doubt in a court
of law.
The United States has not followed the legislative model of legality championed
by Justice Souter, by refusing to make clear legislative statements concerning its
treatment of combatants. It has also opted out of the criminal law or derogation of
rights model championed by Justice Scalia, by not trying the combatants in the
ordinary courts and not signalling to the public that it is derogating from basic
norms of legality by suspending habeas corpus. Rather, it has followed Justice
O’Connor’s model of diluted legality through combatant status tribunals at
Guanatanamo Bay that contain a presumption in favour of the government’s
evidence, allow hearsay, use military officers as judges and deny detainees inde-
pendent counsel.59 The fifth vote on the Supreme Court for this diluted due


58
Hamdi v. Rumsfeld 124 S Ct 2633 (2004).
59
In an order issued shortly after the Court’s decision, combatant status review tribunals
were established, to be composed of three military officers. The detainee would be
KENT ROACH
150

process approach could only come from Justice Thomas who was the only judge
who dissented and would not have provided any relief to Yaser Hamdi.60
The ultimate resolution of Hamdi’s case is a telling warning of the danger
that governments can opt out of any form of legality. Rather than attempt to
justify his detention under even the minimal standards required by Justice
O’Connor, the United States sent the American citizen to Saudi Arabia after
having detained him for more than two years. A Department of Justice
spokesperson made clear that the issue was not one of Hamdi’s guilt or
innocence, but of the national interest.61 This is consistent with President
Bush’s views that it is not necessary to serve legal papers on the enemy in the
war against terrorism.

V. Conclusion
The criminal law is no solution to terrorism and must be integrated into a
larger strategy that includes creative regulation of third parties and the
environment. We need hard-headed and rational strategies that protect us
not only from terrorism, but from the broad range of harms and risks of
modern society. To focus too narrowly on the risk of terrorism may give the
political aims of the terrorists a weight that is not deserved. Indeed perhaps
the greatest danger of terrorism is that it will produce an over-reaction in
democracies that undermines the fabric of democracy.
At the same time, the political demand to enact new criminal laws as a
response to terrible acts of terrorism seems irresistible and the criminal law
will play an important role in anti-terrorism policies. It will be directed not
only at terrorists but at third parties who may support terrorists. Care must
be taken not to overestimate the marginal deterrent value of new anti-
terrorism laws and to ensure that any violations of general principles of due
process in the context of anti-terrorism law do not spread to other parts of
the criminal law. At the same time, the criminal law represents important
values of individual responsibility, legally authorized detention, restrained

represented by another military officer and have access only to unclassified and ‘reason-
ably available’ information and witnesses. The rules of evidence would not apply and
‘preponderance of evidence shall be the standard used’ in determining that the enemy
combatant was properly detained ‘but there should be a rebuttable presumption in favour
of the Government’s evidence’. Deputy Secretary of Defence ‘Memorandum: Order
Establishing Combatant Status Review Tribunals’ (7 July 2004) www.defenselink.mil./
news/Jul2004/d20040707review.pdf. For criticisms see Ronald Dworkin ‘What the Court
Really Said’ New York Review of Books 12 Aug. 2004.
60
Justice Thomas stressed ‘the Government’s interest in not fighting the war in its own
courts’ (Hamdi at 2685).
61
‘US, Bowing to Court, to Free ‘‘Enemy Combatant’’’ New York Times 23 Sept. 2004. Hamdi
will be subject to conditions including renunciation of his American citizenship and
restrictions on his travel.
THE CRIMINAL LAW AND TERRORISM 151

punishment, and due process that should not be lightly discarded in the war
against terrorism.
The terrorist threat can produce distorted and unjust criminal laws, but a
perhaps even greater danger is that states will be impatient and abandon the
restraints of the criminal law in favour of much less restrained and less
discriminating anti-terrorist measures including war, assassination, torture,
preventive detention and wholesale restrictions on migration.
8

And fairness for all? Asylum, national security,
and the rule of law
COLIN HARVEY


I. Introduction
Asylum, immigration and nationality law have all been used in the ‘war
against terrorism’ in, for example, the UK, the US and Canada.1 The heigh-
tened focus on these areas has highlighted the already draconian aspects of
existing law and practice. Anti-terrorism law and policy is having a significant
impact on refugees and asylum seekers.2 There is, however, no necessary
connection between national security and asylum and what tends to be
neglected is that refugee law was designed precisely to regulate the ‘excep-
tional situation’ of forced migration.3 The existence of the humanitarian
institution of asylum need not raise security concerns and refugee law con-
tains well-established mechanisms to address the issue. It is essential that the
refugee regime does not become confused with, and undermined by, anti-
terrorism law and policy.
Claims to the novelty of contemporary security concerns must be approached
with caution. Refugee lawyers have noted for some time the ‘security discourse’
being constructed around the treatment of forced migration. In the UK, the
government has woven migration policy into the narrative of providing security
for citizens.4 In recent years concern about asylum has reached the highest
political levels and extended beyond national contexts. The UN Security


Editorial note: This chapter was written before the ruling of the House of Lords in A. v. Secretary
of State for the Home Department [2004] UKHL 56 and should be read in the light of that
judgment. See ‘Postscript’, Chapter 28, in this volume.
1
Roach, Chapter 23, in this volume; Howard Adelman, ‘Refugees and Border Security Post-
September 11’ (2002) 20 Refuge 5; Kate Martin, ‘Preventive Detention of Immigrants and
Non-Citizens in the United States since September 11th’ (2002) 20 Refuge 23.
2
In Britain, the terrorist threat is not confined to non-nationals. There is evidence of
involvement of British nationals in ‘international terrorism’.
3
Adelman, ‘Refugees and Border Security’, at 11 (‘there is virtually no evidence linking
global terrorism with refugees’).
4
See Home Office ‘No let up combating abuse of the asylum system’ 17 December 2003,
where Home Secretary David Blunkett stated: ‘This Bill is part of our strategy to secure our
borders and tackle abuse of the asylum system, in order to build the public confidence and
trust necessary to welcome legal migration in the interests of the UK’s economy.’

152
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 153

Council, for example, made clear after September 11 that there should be no safe
havens for terrorists and that refugee status should not be ‘abused’ by ‘perpe-
trators, organizers or facilitators of terrorist acts’.5 Events demonstrate that
security threats are credible, but these debates must be seen as part of a pattern
of responses to migration that is not novel.6 The pressures exerted in the national
security context are simply more intense versions of the strain the asylum system
is under.7 And claims to novelty can obscure the complex reasons for flight,
which often include political, social or economic factors.
The linking of asylum and terrorism in political discussions has the
potential to do lasting damage to the institution of asylum. One suggestion
in this chapter is that the rule of law is under threat when national security
concerns assume excessive prominence in the asylum debate. When credible
security threats are perceived, there is a tendency to focus on the executive as
best placed to address the matter because of its greater access to information.
But this argument neglects the importance of rigorous scrutiny of legal
standards which regulate exceptional situations. The controversy over asylum
and national security thus requires a careful examination of the role of the
judiciary in this area of public policy. Do different elements emerge when
security concerns are raised? Are the courts interfering excessively in govern-
ment asylum policy, occasionally undermining the will of Parliament, as
some politicians suggest,8 or is judicial deference to the executive a continu-
ing problem, as many commentators and human rights advocates argue?
This chapter suggests, with reference to decided cases, that the senior
judiciary is not engaged in an attempt to undermine government asylum
policy in the UK. The senior judiciary is aware (only too aware, at times) of its
institutional and constitutional roles, but is prepared to advance incremen-
tally the interpretation of refugee law and on occasion question executive
decision-making. There are limits to what judges can, and should, do in this
area. But there is a danger that when national security is raised undue
deference is accorded to the executive. Some concept of due deference may
be appropriate, but there are risks if it becomes too extensive and undermines
the judicial role of interpreting and applying existing norms.


5
UN Security Council Resolution 1373 (2001).
6
See Prakash Shah, ‘Taking the ‘‘political’’ out of asylum: the legal containment of refugees’
political activism’ in Frances Nicholson and Patrick Twomey (eds.), Refugee Rights and
Realities: Evolving International Concepts and Regimes (Cambridge University Press, 1999),
119–135.
7
See Reg Whitaker, ‘Refugee Policy after September 11: Not Much New’ (2002) 20 Refuge 29.
8
Richard Rawlings talks of a ‘revenge package’ developed by government to address this and
views asylum as a significant constitutional arena and an example of ‘pressure through law’:
‘Review and Revenge (and Retreat)’ W. G. Hart Legal Workshop, July 2004, Institute of
Advanced Legal Studies.
COLIN HARVEY
154

The debate in public law is (and has long been) polarized between those
who are sceptical of the judicial role and those who believe the judges do not
go far enough in defence of individual rights. Those sceptical of the judicial
role place their trust in the potential of Parliament to deliver more effective
protection of rights. They believe that Parliament is not only best placed but
has the legitimacy required to make these judgments. Those who view the
majoritarian nature of parliamentary democracy with suspicion look to the
courts to provide necessary restraints. But this is not an either/or choice.
Some construction of the judicial role must form part of any analysis of
public law which has not abandoned adjudication as a form of decision-
making. One problem is that the UK government is steadily narrowing
the practical scope for individuals to challenge asylum decisions. This was
evident in the recent failed attempt to exclude judicial review in the asylum
context. Similar objectives can, however, be achieved through a variety of
other legal and policy mechanisms. Whatever theory of the judicial role is
adopted it must confront a legal system that is making it increasingly difficult
to contest asylum decisions. The rule of law is not only undermined through
direct attempts to exclude judicial review. It may also be eroded by a creative
legal and policy framework which seeks to immunize itself from effective
judicial scrutiny.
An approach is needed which recognizes both the importance of parlia-
mentary democracy, properly understood, and the robust parliamentary and
judicial protection of the rights of vulnerable groups.9 This will not be found
in excessive deference to the executive in matters of asylum, particularly when
national security concerns are raised, nor in attempts to place too much strain
on the judicial role. But a start might be made by switching attention from the
institutional question of who should decide to those arguments which
deserve recognition in a constitutional democracy committed to the rule of
law. When national security concerns are prominent, the existing normative
framework must be interpreted and applied appropriately. This process need
not be exclusively undertaken by the judiciary. In the UK, parliamentary
committees, MPs, human rights and equality bodies, and NGOs all have a
responsibility to argue for the values which underpin legal order; vibrant
networks have emerged to challenge government policy. But criticism of
judicial activism or deference suggests that some understanding of the judi-
cial role is at work – one that needs to be positively argued for and not simply
assumed. This approach places considerable emphasis on the values which
underpin legal order and the arguments which best serve those values, even
when national security threats arise.



9
Rabinder Singh, ‘Equality: The Neglected Virtue’ [2004] EHRLR 141.
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 155

II. A conversation on limits: the rule of law as constitutional
constraint
Before any attempt is made to consider asylum law, thought should be given
to the rule of law and the judicial role. Even if the starting point is scepticism,
it is worth reflecting on what the judicial role should be or might be. The rule
of law is often deployed in this area, but there is not always agreement as
to its meaning. Even A. V. Dicey believed that arbitrary power was necessary
in times of social disturbance or disorder10 and that ‘order can hardly be
maintained unless the executive can expel aliens’.11 This was within a con-
ception of the rule of law where arbitrary power was regarded as exceptional,
but it highlights a common assumption that certain actions must be permis-
sible in times of crisis if government is to function effectively. I want, in this
chapter, to question the assumption that there are exceptional areas where
legal order must not go, or if it does, tread very lightly. This task involves an
inquiry into the meaning of and values implicit in the rule of law and the
implications for governing within a legal order.
First, there is what may be termed the ‘formal tradition’. Writing within
this tradition, Joseph Raz notes the importance of the rule of law as a formal
concept which means that legal rules must be general, prospective, open, clear
and stable.12 There is little in the description that one would wish to disagree
with. In legal theory, the debate is whether legal order is devoid of substantive
moral or political content. The label ‘formal tradition’ simplifies the issues,
but it captures a shared belief in the importance of separating legal validity
from moral or political views. In this ‘formal tradition’ the rule of law may
exist in a range of democratic contexts.
Second, there are ‘value-based’ schools of thought. These approaches vary,
but they see the rule of law as more than the mere existence of formal legal
rules and processes. In popular usage the concept is often deployed in place of
a substantive argument about justice, suggesting that we imbue it with
political and moral ideals. When we talk about the principle of legality we
appear to mean more than simply following enacted rules. Dicey famously
linked the rule of law to the supremacy of regular law as opposed to arbitrary
power.13 Dicey’s distrust of discretionary power has particular relevance in
the asylum context, in which it is accepted that the discretion afforded by
the legal framework can be exercised in a number of ways. For Dicey, no
one could be punished except by law, everyone must be equal before the law

10
A. V. Dicey, Introduction to the Study of the Law of the Constitution (8th edn., London,
Macmillan, 1915), 271: ‘Under the complex conditions of modern life no government can
in times of disorder, or of war, keep the peace at home, or perform its duties towards
foreign powers, without occasional use of arbitrary authority.’
11
Ibid. 12 ‘The Rule of Law and its Virtues’, (1977) 93 LQR 195. 13 See note 10 above.
COLIN HARVEY
156

(in the sense that all classes of persons are subject to it) and it must be
administered by the ordinary courts.14 These core values underpin modern
understandings of the rule of law, even if one accepts that law is, by nature,
arguable. They are values which have particular significance for marginalized
groups. One fear of extensive discretionary power, for example, is precisely
that vulnerable individuals and groups will suffer as a result. How this
approach is classified in legal theory is, in my view, of less interest than the
values it reflects and seeks to promote. What it suggests is that the rule of law
has a substantive value and is not simply a formal or procedural concept.
Finally, some prefer to view the rule of law as political rhetoric and a
potential obstacle to social change. This is, of course, a crude simplification.
However, it does capture a view which regards all talk of the rule of law or
legality as a mask for power relations. In other words, law is arguable in
nature and simply reflects power relations within wider society and should be
approached from a strategic and instrumental perspective. The commitment
to legal order thus becomes a tactical one and law, if useful at all, is con-
structed as a tool, in appropriate circumstances, to advance or impede wider
political struggles. The strategic attitude towards the rule of law is often
discussed in the human rights context. But accepting the arguable and
political nature of law does not imply that the rule of law or the principle
of legality is necessarily indeterminate.
The disagreement over the meaning of the rule of law reflects basic disputes
in law and politics. My own view is that modern approaches which aim to
hold on to a substantive understanding of the rule of law remain the more
convincing. The rule of law is a political ideal, but one which should focus on
the substance of legal argumentation and promote a culture of justification.15
The aim should be to highlight the arguable and dynamic nature of law and its
basis in distinct values.16 It means something, in substantive political terms,
to be committed to legal order, as opposed to discretionary power adminis-
tered on a case-by-case basis. The rule of law, then, is essential to the
construction of a democratic culture in which people are treated equally,
but the debate shifts towards legal reasoning as opposed to a rigid focus on
the institutions or the decision-maker. When national security is raised there
is no reason in principle why judges should not be consistent and thus bring
exceptional situations fully within the principle of legality.


14
Ibid.
15
David Dyzenhaus, ‘The Permanence of the Temporary’ in Ronald J. Daniels, et al. (eds.),
The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (University of Toronto
Press, 2001), 21–37.
16
David Dyzenhaus, ‘Recrafting the Rule of Law’ in Dyzenhaus (ed.), Recrafting the Rule of
Law (Oxford, Hart Publishing, 1999), 1–12; Neil MacCormick, ‘Rhetoric and the Rule of
Law’ in Recrafting the Rule of Law, at 163–77.
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 157

But how is this relevant to the debate on refugees and asylum seekers?
Surely this focus on the arguable nature of law simply brings instability and
uncertainty with it? These are genuine concerns and many democracies do
not have a proud record on protecting the rights of asylum seekers. However,
legal orders generate mechanisms to resolve disagreement on the basis of
existing norms and, often, foundational constitutional norms and values.
Law is arguable, but it is not indeterminate in the sense this is sometimes
used. The turn to rational argumentation is convincing as a way to move
beyond the current preoccupation with the decision-maker, which eventually
weakens the protection of vulnerable groups and exacerbates the problem of
Westminster executive dominance. I do not underestimate the importance of
the legitimacy of lawmaking processes, or the significance of judges who
should be reflective of the societies they serve. But the judicial role must
primarily revolve around the interpretation and application of norms and
standards in particular cases, without undue anxiety about the political
environment. The emphasis should be on continuing conversation over the
terms of asylum law within the legal constraints that protect vulnerable
individuals and groups. The rule of law promotes a democratic culture of
equal concern and respect and in the asylum context it advances a reasoned
approach to this highly contested area.
The justification of policy must deserve recognition within the terms of
legal argumentation, and not solely on the basis of its pedigree. In the asylum
context, it is not enough for judges to defer to executive decisions on the basis
that Ministers are best placed to make them. This simply shifts the respon-
sibility to another institution to make the substantive decision the law
requires. In my view, the judges are obliged to address the substance of the
legal arguments, even in cases where immigration, asylum and national
security collide.
Dicey emphasized the importance of ordinary courts and expressed con-
cerns about discretionary power, but there is still value in encouraging the
development of expert bodies with knowledge of particular subject areas, like
immigration and asylum. These bodies may, in practice, reach better deci-
sions than the ordinary courts and ones which accord with the culture of
justification mentioned here. Respect for the rule of law or legality need not
accord with established judicial hierarchies.
The strength of the approach rests on respect for the individual and the
basic principles of fairness which this implies. But we need to move beyond
the idea that this respect is owed to citizens mainly. This is an area where
judges may well be ahead of political and legal theorists. It is still too often
the case that status is used unreflectively, neglecting non-nationals. In
asylum law, where extensive pressures are placed on government and public
administration to deliver quick results, insistence on the importance of each
individual is significant. A commitment to legalism thus has an ethical
COLIN HARVEY
158

dimension.17 But this argument in favour of legalism as a positive conception
does not mean support for a particular institutional belief in the courtroom
as the only forum for its vindication.

III. Securing asylum
A. The legal framework
Asylum law in the UK has developed in the last decade as a specific area of public
law. Legal regulation has responded to increasing numbers of asylum seekers with
a range of measures to speed up the system and deter future applications. The
policy premise is that the system is being widely abused by those who are not in
genuine need of protection. A ‘culture of suspicion’ has surrounded the system for
some time, and 9/11 has simply intensified an existing process. The trends are
again evident in the latest asylum legislation which includes: new criminal offences
around entering the UK without a passport; factors to be considered as impacting
negatively on credibility assessments; new categories of persons not eligible for
support; provision of accommodation made conditional on participation in
community activities; and the further erosion of appeal rights.
The law is primarily concerned with the provision of protection to asylum
seekers from return to another state where there is a real risk of sufficiently
serious human rights abuse. Protection exists in the form of both refugee law
and human rights law. Asylum is a humanitarian institution designed to
provide surrogate protection to those in real need of it. Permanent settlement
in the UK may be the result of a grant of refugee status; however, the principal
purpose of the legal regime is to offer protection as long as it is needed.
Decision-making in asylum cases is particularly challenging because it
involves judgments about future risk based on the applicant’s testimony
and empirical evidence about the applicant’s state of origin.
There is now an extensive statutory framework and a substantial body of
case law.18 In addition, the Human Rights Act 1998 changes the human rights
context and the full impact of the Act requires careful assessment over time.
There are other measures of relevance. For example, the Anti-terrorism
Crime and Security Act 2001 has an express section on immigration and
asylum.19 This controversial legislation increases the powers of the Home
Secretary in relation to the deportation, removal and detention of ‘suspected
international terrorists’. Someone certified as a suspected international ter-
rorist may be refused leave to remain, deported, or removed from the UK.

17
MacCormick, ibid.
18
Asylum and Immigration (Treatment of Claimants, Etc.) Act 2004; Nationality,
Immigration and Asylum Act 2002; Immigration and Asylum Act 1999; Asylum and
Immigration Act 1996; Asylum and Immigration Appeals Act 1993.
19
Part 4.
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 159

A person may also be detained even when it is unlikely that the removal order
will in fact be executed. An appeal is available to the Special Immigration
Appeals Commission (SIAC) against certification. As a consequence of these
measures the government had to derogate from Article 5 of the European
Convention on Human Rights. Concerns have been consistently raised about
this legislation and whether the indefinite detention of suspected inter-
national terrorists is a proportionate response.20 The Act deals directly with
the interpretation of the key provisions in refugee law; these are Articles 1F
(exclusion clauses) and 33(2) (permissible refoulement) of the Refugee
Convention.21 The 2001 Act grants the Home Secretary the power to certify
that a person is not protected against refoulement because Article 1F or Article
33(2) applies and his or her removal would be conducive to the public good.
In this specific context, the exclusion clauses are applied before inclusion is
considered.22 The Act also makes clear that no balancing exercise is involved
in the assessment of these provisions. Against this statutory backdrop, my
aim is to focus on the role of the judges in the English asylum process and
assess their response in the area of national security and public order.
National security may become relevant to the asylum process at different
stages, but there is no necessary connection between the asylum system and
national security. A link may emerge if asylum seekers, like other individuals,
engage in specified actions in the asylum state or before entry. Some asylum
seekers and refugees will have been politically active in their state of origin.
The issue of security may arise when the exclusion clauses are being con-
sidered during the status determination process. National security is not
intended to be the primary concern at this stage, but there is evidence that
it does enter into the process. If a person is still awaiting determination of her
claim, or is recognized as a refugee, her actions in the asylum state may trigger
concern about a possible security risk. At this point her removal may be
sought with reference to national security considerations. Removal in this
context presents particular challenges where the individual faces a real risk of
serious ill-treatment upon return. But there is no necessary impediment to
prosecution under anti-terrorism or criminal laws. The legal framework thus
includes provision for dealing with asylum seekers and refugees who are
suspected of being involved in terrorism.

20
See, for example, Privy Counsellor Review Committee, Anti-terrorism, Crime and Security
Act 2001 Review: Report (18th December 2003, HC 100) 48–68; Joint Committee on
Human Rights Anti-terrorism, Crime and Security Act 2001: Statutory Review and
Continuance of Part 4 (2003–04) Sixth Report, HL Paper 38, HC 381. In normal immigra-
tion law circumstances indefinite detention pending deportation would be unlawful, see
Youssef v. The Home Office [2004] EWHC 1884 (QB).
21
See James C. Hathaway and Colin Harvey, ‘Framing Refugee Protection in the New World
Disorder’ (2001) 34 Cornell International Law Journal 257.
22
See Gurung v. Secretary of State for the Home Department [2002] UKIAT 04870.
COLIN HARVEY
160

The rule of law has implications for all the institutions of government,
including the executive. Parliament has debated asylum on numerous occa-
sions, and in the last decade several legislative initiatives have been under-
taken. Government policy is regularly examined in the courts. What emerges
is a dynamic relationship between government, administrators, adjudicators
and the courts. However, the evidence does not suggest a senior judiciary
intent on undermining asylum policy. There are cases where judges have
taken a firm stand on the progressive development of asylum law and the
senior judiciary continues to display an acute awareness of executive policy
preferences. The result is that excessive deference is sometimes accorded to
the decision-maker rather than the substance of the legal argument. This
result is troubling for those concerned with the effective legal protection of
human rights in the UK. The managerial imperatives and concerns of the
executive are important, but the principal focus should be on the legal
argument and the development of refugee and asylum law in individual
cases. To advance my argument I highlight three themes in asylum law:
first, the contested meaning of refugee status and human rights protection;
second, the treatment of asylum seekers awaiting a determination of their
claim; and finally, national security.

B. Refugee status, asylum and human rights protection
Refugee status determination is the core of the asylum process. Although not
strictly domestic law, the definition of ‘refugee’ is contained in the 1951
Convention relating to the Status of Refugees.23 An individual is a refugee
if he or she has a well-founded fear of persecution for a ‘Convention reason’
and is unwilling or unable to seek the protection of his or her state of origin.24
The 1951 Convention definition is applied in domestic law in the UK and an
asylum seeker can make an application for refugee status. A person who is not
recognized as a refugee may still fall within the category of ‘humanitarian
protection’ or benefit from discretionary leave. An individual also cannot be
returned if doing so would be contrary to the European Convention on
Human Rights. The House of Lords has attempted to establish a clear
approach to the interpretation of refugee status which will facilitate asylum
decision-making. It has also, on some occasions, been prepared to advance
the interpretation of the definition to reflect the purpose of the law and
modern legal developments in the protection of human rights.
In R v. Secretary of State for the Home Department, ex parte Sivakumaran,25
a refugee case involving six Tamil asylum seekers, Lord Keith stressed that the
fear (in ‘well-founded fear’) had to be objectively shown to be justified and


23 24 25
189 UNTS 154, entry into force: 22 April 1954. Article 1A(2). [1988] 1 AC 958.
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 161

not merely subjectively felt by the individual: ‘the requirement that the
applicant’s fear of persecution should be well-founded means that there has
to be demonstrated a reasonable degree of likelihood that he will be perse-
cuted for a Convention reason if returned to his own country’.26 By empha-
sising the ‘well-founded’ nature of the ‘fear’ the House of Lords guaranteed
that, in practice, the objective element in the test would trump any subjective
considerations. The focus was on the conditions in the state of origin as the
principal matter in the assessment of asylum claims. The Law Lords opted for
an interpretation which reflected the government’s preferred view of the
refugee definition, and which focused on making the interpretation of refu-
gee status manageable.
Disagreements within states on the meaning of refugee law are typically
resolved by domestic courts and tribunals. But what happens, in the context
of European integration, if states disagree over the meaning of refugee law
when a system is in place to transfer responsibility for the substantive assess-
ment of claims? The issue was addressed in R. v. Secretary of State for the Home
Department, ex parte Adan,27 which involved two appeals to the House of
Lords. In the first appeal, Adan, a citizen of Somalia, had unsuccessfully
sought asylum in Germany. She then claimed asylum in the UK, but the
Home Secretary determined that the Dublin Convention 1990 (a treaty
designed to facilitate the transfer of responsibility for asylum claims) was
applicable and Germany should take responsibility. The German authorities
accepted responsibility and her claim for asylum in the UK was refused
without consideration of the merits. In the second appeal, Aitseguer, an
Algerian citizen, had travelled to the UK by way of France. He claimed to
be at risk from an armed group in Algeria and that the government was
unable to protect him. The Home Secretary determined that under the
Dublin Convention 1990 Aitseguer should be returned to France. The
French authorities agreed to take him back. Aitseguer challenged the decision
on the basis that the Home Secretary had not taken the French position fully
into account.
The problem in these cases was the conflicting interpretations of refugee
law within the EU. As Lord Steyn noted, a minority of states confined
protection to those who could link persecution to the state. France and
Germany followed this approach, but the UK did not. Adan feared persecu-
tion in Somalia as a result of being a member of a persecuted minority clan,
´
while Aitseguer claimed to be the target of the Groupe Islamique Arme in
Algeria. The feared persecution could not be attributed directly to the state.
The Home Secretary accepted that if returned both might be sent to their
states of origin, due to the interpretation of the Convention applied in


26 27
Ibid. 994. Lord Templeman followed a similar approach, at 996. [2001] 2 AC 477.
COLIN HARVEY
162

Germany and France. But the Home Secretary suggested that there were
alternative forms of protection in both states for Adan and Aitseguer. An
important question emerged: is there a true and ‘international meaning’ of
the 1951 Convention, or do a range of possible interpretations exist, some of
which the Home Secretary is entitled to regard as legitimate? According to
Lord Steyn, the question for the Home Secretary was not whether some other
form of protection might be available in France or Germany, but what the
1951 Convention required.28
It is difficult to view this as a case of the court stepping beyond the law to
interfere with public administration. Even though the judgment had an impact
on the safe third country rule, the Law Lords were not prepared to defer to the
argument of the Home Secretary. Their approach was based on the fundamental
value of respect for the individual and the protection of the person in the
determination of asylum cases. The Law Lords accepted that disagreement
over the meaning of refugee law existed, but acknowledged the unfairness and
risk to the individual were the Home Secretary allowed to rely on reasonable
disagreement within Europe. Refugee law has a determinate content even in the
face of disagreement in the EU. The case highlights neatly how the legal system
can find a determinate way out of disagreement based on respect for the value of
individual human dignity and the importance of procedural fairness.
This case must now, however, be considered in the light of the
Immigration and Asylum Act 1999, R. (Yogathas) v. Secretary of State for the
Home Department and R. (Thangarasa) v. Secretary of State for the Home
Department.29 These cases involved the application of the safe third country
rule to Germany. The House of Lords held that the Home Secretary had not
acted unlawfully. The German approach was not significantly different on
persecution by non-state agents and on internal relocation and there was no
real risk in either case that Article 3 of the European Convention on Human
Rights would be violated.30 Lord Bingham stressed the importance of the
‘anxious scrutiny test’ (discussed below) but argued there were two further
considerations. First, that courts should not infer that ‘a friendly sovereign
state which is party to the Geneva Convention will not perform the obliga-
tions it has solemnly undertaken’.31 Only significant differences, in his view,
should be allowed to prevent return in such cases. Second, he stated that the
key issue was the prevention of return to places where the person will suffer
persecution; in ex parte Adan the Law Lords had not reflected fully on other


28
Ibid. 509. 29 [2003] 1 AC 920 (HL).
30
It is well-established that individuals are protected from return if contrary to Article 3. But
other rights might also prevent return: R. v. Special Adjudicator, ex parte Ullah; Do v.
Secretary of State for the Home Department, [2004] UKHL 26 (Article 9); and R. v. Secretary
of State for the Home Department, ex parte Razgar, [2004] UKHL 27 (Article 8).
31
Ibid. para 9.
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 163

forms of protection and German domestic law. These cases suggest an
awareness of the problems faced by the Home Office in the administration
of asylum. They also are evidence of a judicial retreat from ex parte Adan
influenced by the problems experienced in trying to make this system func-
tion effectively.
Two further cases reveal the contested meaning of refugee law. In the first
case, Horvath v. Secretary of State for the Home Department,32 the appellant
was a member of the Roma community and a citizen of the Republic of
Slovakia. He left Slovakia with his family and came to the UK to claim asylum.
He argued that he feared persecution from skinhead groups which targeted
Roma and that the Slovak police had failed to provide adequate protection.
The issue for the House of Lords was the failure of the state to provide
protection. What was the link to the persecution feared? For Lord Hope,
the purpose of the 1951 Convention was to offer surrogate protection when
an individual no longer enjoyed the protection of his state of origin. This
purpose had implications for the interpretation of the word ‘persecution’.
Since the failure of state protection was central to the entire system of refugee
law, the word ‘persecution’ implied ‘a failure by the state to make protection
available against the ill-treatment or violence which the person suffers at the
hands of his persecutors’.33 The case is a useful example of the government’s
concerns about asylum policy entering fully into the assessment of the inter-
pretation of refugee status. Rather than decide on the meaning of ‘persecu-
tion’, as a distinct concept, the Law Lords were more focused on the
availability of protection in the state of origin. The case also reveals an
unwillingness to accept that treatment in other European states might gen-
erate a valid refugee claim. In particular, the House of Lords relied heavily on
an argument about the surrogate nature of refugee protection in its assess-
ment of the meaning of the term ‘persecution’. The assumption is that
sufficient protection is available in other European states.
The decision in Horvath can be contrasted with R. v. Immigration Appeal
Tribunal, ex parte Shah and Islam and others v. Secretary of State for the Home
Department.34 The appellants were two Pakistani women who had been
forced from their homes by their husbands and risked being falsely accused
of adultery. They argued that they would be unprotected by the state if sent
back and that they ran the risk of criminal proceedings for sexual immorality.
They sought asylum in the UK on the basis that they had a well-founded fear
of persecution as a result of membership in a particular social group, within
the terms of the 1951 Convention. The issue before the House of Lords was
the precise meaning to be given to ‘membership in a particular social group’.
A majority of the House of Lords concluded that the phrase could be applied


32 33 34
[2000] 1 AC 489 (HL). Ibid. 497. [1999] 2 All ER 545 (HL).
COLIN HARVEY
164

to groups which might be regarded as coming within the Convention’s anti-
discriminatory objectives. This meant it applied to those groups which shared
a common immutable characteristic, and were discriminated against in
matters of fundamental human rights. In certain circumstances women
could constitute such a group if they lived in societies like Pakistan. Unlike
Horvath, the majority in the House of Lords was here prepared to be generous
in the interpretation of refugee law, and in its assessment of the conditions in
Pakistan.
Although Shah/Islam might appear to extend the applicability of refugee
law widely, the Law Lords were careful to stress the particular circumstances
of the cases. The exercise of a more purposive interpretation within refugee
law thus promotes at best incremental advances. The Law Lords were influ-
enced by arguments about what a modern interpretation of refugee status
should be in the light of ongoing developments in human rights law. In this
construction the 1951 Convention is viewed as a ‘living instrument’.35

C. Fair treatment
The second main area of dispute in asylum policy is the treatment of asylum
seekers while awaiting a decision and the decision-making process itself.
Disagreement between some members of the judiciary and the executive is
evident from the case law.36 In R. v. Secretary of State for the Home
Department, ex parte Saadi,37 Saadi and four other asylum seekers argued
that their detention at Oakington detention centre was unlawful, with refer-
ence to Article 5 of the European Convention on Human Rights.38 A fast-
track procedure had been introduced at the centre in 2000, whereby asylum
seekers could be detained for seven days if it was felt that their claims could be
determined quickly. Saadi and others challenged their detention. The House
of Lords concluded that their compulsory detention could not be said to have
been arbitrary or disproportionate; in fact, the process was highly structured
and tightly managed. This structure would be disrupted if asylum seekers
were able to live wherever they wished. A balance had to be struck between the
deprivation of liberty and the need for speedy decisions to prevent long

35
Sepet and another v. Secretary of State for the Home Department [2003] UKHL 15. The
Convention should be viewed as a living instrument: ‘While its meaning does not change
over time its application will’ (at para 4).
36
See R. v. Secretary of State for the Home Department, ex parte Joint Council for the Welfare of
Immigrants [1997] 1 WLR 275 (CA).
37
[2002] UKHL 41. See also ZL and VL v. Secretary of State for the Home Department and
Lord Chancellor’s Department [2003] EWCA Civ 25; R. (Refugee Legal Centre) v. Secretary
of State for the Home Department [2004] EWHC 684 (Admin).
38
Article 5 guarantees the right to liberty and the security of the person subject to listed
limitations.
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 165

delays. Conditions at Oakington were reasonable and the periods of deten-
tion were not excessive, so on balance the detention at Oakington was
reasonable and proportionate. The judgment demonstrated a willingness to
defer to the overall objectives of asylum policy and judicial ‘understanding’ of
the concerns of public administration and the overall management of the
asylum process. The first instance judgment (in the appellants’ favour) had
triggered an angry reaction from the Home Secretary. The result, however,
was based on an interpretation of the limitations to Article 5 which suggested
that the deprivation of liberty could be justified.
The Home Secretary was also unimpressed with the first instance decision
of Mr Justice Collins in R. (Q and others) v. Secretary of State for the Home
Department.39 Section 55 of the Nationality, Immigration and Asylum Act
2002 prohibits the provision of support to the destitute,40 but allows the
Home Secretary to offer support if it is necessary to prevent a breach of
Convention rights.41 To meet government targets on the reduction of the
number of asylum claims, the Home Secretary embarked on a policy of
refusing welfare support to asylum seekers who did not make a claim ‘as
soon as reasonably practicable’ upon entering the UK. The question was the
level of destitution to which an individual had to fall before his or her
suffering or humiliation reached the minimum level of severity required to
amount to inhuman and degrading treatment under Article 3 of the
European Convention on Human Rights. The precise meaning of the Act
was unclear, and the problem was left to the courts to resolve.
All the applicants were asylum seekers who were refused support because
they had not made their claims as soon as reasonably practicable upon
entering the UK. The applicants challenged the lawfulness of the decision
and argued that their human rights were violated because the refusal to offer
support meant they had no way of gaining access to food and shelter.
Mr Justice Collins held that the policy was unlawful. He found flaws in the
decision-making process relating to a general failure to consider each case on
its merits. He concluded that there was a real risk of a violation of Article 3
(prohibition on torture or inhuman or degrading treatment or punishment)
and Article 8(1) (the right to privacy) of the European Convention on the
basis that a person would be left destitute once benefits were refused. He also
held that there had been a violation of Article 6 (right to a fair trial) with
respect to the flawed procedures for challenging the initial refusal of support.
The Court of Appeal, in rejecting the appeal, clarified the meaning of the

39
[2003] EWHC 195 (Admin).
40
Section 55(1). See Mayor of London Destitution by Design-Withdrawal of support from
in-country asylum applicants: an impact assessment for London (Greater London Authority,
2004).
41
Section 55(5).
COLIN HARVEY
166

relevant provisions of the 2002 Act with reference, in particular, to Article 3.42
But the more significant aspect of the judgment related to the assessment of
the overall fairness of the procedures. The court held that the process was
unfair for a range of reasons including: the flaws in the interview process; the
fact that the purpose of the interview was not fully explained; that the Home
Secretary had not taken into account the state of mind of the individuals
involved; and the use of standard form questionnaires.
The Home Secretary opted not to appeal and on 17 December 2003
announced a change in the approach to the ‘as soon as reasonably practicable’
test. Applicants who could give a credible explanation within three days of
arrival would normally be considered to be eligible for support. Problems
continued and in R. (Limbuela) v. Secretary of State for the Home Department
the Court of Appeal held (Lord Justice Laws dissenting) that the Home
Secretary had wrongly declined to provide support to asylum seekers under
s. 55(5) of the 2002 Act.43 The Court of Appeal provided in this case some
further clarity on the meaning of the test to be applied. The Home Secretary
was given permission to appeal to the House of Lords. Following this decision
the Home Office eventually opted to change its approach.
The importance of these cases rests in the strict scrutiny of the procedures
applied and the emphasis, at first instance and in the Court of Appeal, on the
importance of a proper assessment of each individual case. This aspect of the
application of the rule of law is sometimes neglected, but in a climate of
hostility towards asylum seekers, the stress on fair procedures, and the precise
factors which need to be incorporated, is valuable. Here the judges fulfil an
important role in ensuring procedural fairness and that equality before the
law has meaning in practice for each individual. The stress on fairness is
essential in the face of an asylum process which is under severe pressure from
the executive to deliver quick results.
The importance of procedural fairness and fundamental rights was
stressed more recently in R. (Anufrijeva) v. Secretary of State for the Home
Department.44 The majority of the House of Lords held that constitutional
principle required an administrative decision which was adverse to be com-
municated before it could have the character of a determination with legal
effect. General statutory words could not override fundamental rights and
would be presumed to be subject to them. The European Convention on
Human Rights was not an exhaustive statement of fundamental rights and
‘fairness is the guiding principle of our public law’.45 But the discourse of
human rights has long been apparent in administrative law. For instance, in
Bugdaycay v. Secretary of State for the Home Department,46 the House of Lords

42
R. (Q) v. Secretary of State for the Home Department [2003] EWCA Civ 364.
43
[2004] EWCA Civ 540. 44 [2004] 1 AC 604. 45 Ibid. para 30.
46
[1987] AC 514 (HL).
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 167

had to consider the 1951 Convention (although not the definition of refugee
status) for the first time. In respect of one of the appellants, Musisi, the issue was
whether there was a safe country (Kenya) to which he could be returned. After
stating the limitations on the role of the court in judicial review proceedings Lord
Bridge noted: ‘The most fundamental of all human rights is the individual’s right
to life and when an administrative decision under challenge is said to be one
which may put the applicant’s life at risk, the basis of the decision must surely call
for the most anxious scrutiny.’47 Lord Bridge concluded that the Secretary of
State’s decision to place faith in the Kenyan authorities was misplaced.48 As
Nicholas Blake notes, the introduction of the ‘anxious scrutiny’ test in this case
resulted in a sharp rise in judicial review applications and effectively assisted in
the eventual creation of a comprehensive appeals system.49 The judgment
recognized – well before the Human Rights Act 1998 – that where fundamental
rights are at risk (in this instance the right to life), the courts, in judicial review
proceedings, should examine the decision-making process very closely to ensure
that there is no unfairness to the individual.

D. Making the principle of legality matter: national
security, terrorism and the asylum process
It is important to understand the judicial role in asylum cases generally. But
the principal aim of this chapter is to explore the judicial role when national
security is raised, and it is to that issue that I now turn. The institution of
asylum and the law of refugee status both contain express provision for
excluding certain persons from protection.50 When it comes to deciding
whether certain persons are undeserving of protection, judicial deference to
the executive is particularly marked. This trend is not confined to asylum and
immigration law. When a credible security threat exists there is a temptation
to defer to the expertise and knowledge available to the executive. But as has
often been stated, this is precisely when judicial vigilance is most required.


47
Ibid. 531.
48
Ibid. 533. Following a similar approach Lord Templeman stated: ‘In my opinion where the
result of a flawed decision may imperil life or liberty a special responsibility lies on the
court in the examination of the decision-making process’ (at 537).
49
See Nicholas Blake, ‘Judicial Review of Expulsion Decisions: Reflections on the UK
Experience’ in David Dyzenhaus (ed.), The Unity of Public Law (Oxford, Hart
Publishing, 2004), 225–52.
50
Universal Declaration of Human Rights 1948 Article 14(2); Convention relating to the
Status of Refugees 1951 Article 1F. See also Articles 32 and 33. In the UK see IND Asylum
Policy Unit Notice 1/2003 ‘Humanitarian Protection and Discretionary Leave’, making
clear that those who commit serious crimes, and terrorists or others who raise a threat to
national security will be excluded from Humanitarian Protection, even if they cannot be
removed. They will usually be granted discretionary leave.
COLIN HARVEY
168

Non-nationals are particularly vulnerable at such times and judges have a
significant role in interpreting and applying the law to ensure that there are
no exceptions to the presuppositions of legal order.
The first case of interest concerns the ongoing debate about the scope of the
exclusion clauses in refugee law. The UNHCR has recently provided updated
guidance on their interpretation and application.51 It suggests that the primary
purpose of these clauses ‘is to deprive those guilty of heinous acts, and serious
common crimes, of international refugee protection and to ensure that such
persons do not abuse the institution of asylum to avoid being held legally
accountable for their acts’.52 The guidelines also address the issue of terrorism:
Despite the lack of an . . . agreed definition of terrorism, acts commonly
considered to be terrorist in nature are likely to fall within the exclusion
clauses even though Art. 1F is not to be equated with a simple anti-
terrorism provision. Consideration of the exclusion clauses is, however,
often unnecessary as suspected terrorists may not be eligible for refugee
status in the first place, their fear being of legitimate prosecution as
opposed to persecution for Convention reasons.53
The UNHCR’s view is that each case requires individual consideration and
the fact that someone may be on a list of terrorist suspects might trigger
assessment under the exclusion clauses but should not in itself justify exclu-
sion.54 In addition, it suggests that the exclusion decision should in principle
be addressed within the regular status determination process.55
The Law Lords have addressed the issue of exclusion in T v. Home
Secretary.56 The appellant, an Algerian citizen whose claim for asylum in
the UK was rejected, had been involved in a bomb attack on Algiers airport in
which ten people were killed and a raid on an army barracks at which another
person was killed. The special adjudicator concluded that this brought him
within the exclusion clause in Article 1F(b)57 because, as provided in that

51
UNHCR Guidelines on International Protection: Application of the Exclusion Clauses-
Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003 UN
¨
Doc. HCR/GIP/03/05. See also Volker Turk, ‘Forced Migration and Security’ (2003) 15
International Journal of Refugee Law 113; Geoff Gilbert, ‘Editorial’ (2004) 16 International
Journal of Refugee Law 1.
52
UNHCR ibid. para 2. 53 Ibid. para 25 54 Ibid. para 26. 55 Ibid. para 31.
56
[1996] AC 742 (HL). In the UK see, KK v. Secretary of State for the Home Department
[2004] UKIAT 00101; Secretary of State for the Home Department v. PK [2004] UKIAT
00089; Gurung v. Secretary of State for the Home Department [2002] UKIAT 04870. See also
Canada v. Ward [1993] 2 SCR 689; Pushpanathan v. Canada [1998] 1 SCR 982; Zrig v.
Minister of Citizenship and Immigration (2003) FCA 178; and in the US, see INS v. Aguirre-
Aguirre (1999) 526 US 415.
57
Article 1F provides: ‘The provisions of this Convention shall not apply to a person with
respect to whom there are serious reasons for considering that: (b) he has committed a
serious non-political crime outside the country of refuge prior to his admission to that
country as a refugee.’
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 169

provision, ‘there were serious reasons for considering’ that he had committed
serious non-political crimes. The House of Lords dismissed his appeal.
However, the ruling contains extensive consideration of the meaning of
‘serious non-political crime’ within the context of refugee law. It demon-
strated again the role of the House of Lords in resolving a disagreement over
the meaning of refugee law with reference to the values the law was intended
to promote. The debate in this case primarily involved the precision of the
exclusion clauses rather than whether or not he should have been excluded.
The Law Lords displayed a desire to advance a clear definition which could be
straightforwardly applied in the process of decision-making in light of the
purpose of refugee law and the values it is intended to uphold. In particular,
some individuals should be excluded from refugee status because of their
criminal activity outside the state of refuge.
A related issue is what to do about those who are seeking asylum from
persecution arising from anti-terrorism operations in other states. While a
state may seek to arrest and prosecute terrorists, there is ample evidence of
human rights being abused in the process. In R. (Sivakumar) v. Secretary of
State for the Home Department the claimant was a Tamil from Sri Lanka
whose claim for asylum was rejected by the Home Secretary.58 Article 1F was
not raised. On appeal the adjudicator accepted he had been detained and
tortured, but this was due to the suspicion held that he was involved in
terrorism and not to his political opinions. In the House of Lords, Lord
Steyn stated that ‘not all means of investigating suspected terrorist acts fall
outside the protection of the Convention’.59 By suggesting that being inves-
tigated for involvement in terrorist acts took a person outside the protection
of the Convention the adjudicator had got it wrong. For Lord Hutton, the
proper conclusion was that the acts of torture were inflicted not solely to
obtain information to tackle terrorism, but also ‘by reason of the torturers’
deep antagonism towards him because he was a Tamil’.60
Past cases reveal that when national security, immigration and asylum
collide then the judges are likely to defer extensively to the views of the
executive. The dominance of this trend was confirmed in Secretary of State
for the Home Department v. Rehman.61 The issue here was whether the Home
Secretary could make a deportation order under the Immigration Act 1971
on the grounds that the appellant’s deportation was conducive to the public
good for national security reasons. The appellant, a Pakistani national,
arrived in the UK in February 1993 after being given entry clearance to
work as a minister of religion in Oldham. Both his parents were British
citizens. The Home Secretary refused his application for indefinite leave to
remain, citing information linking the appellant to an Islamic terrorist


58 59 60 61
[2003] UKHL 14. Ibid. para 17. Ibid. para 29. [2001] UKHL 47.
COLIN HARVEY
170

organization and argued that his deportation from the UK was in the interests
of national security. Rehman appealed to SIAC.62
The Home Secretary stated that the appellant had directly supported
terrorism in the Indian subcontinent and was therefore a threat to national
security. But SIAC held, to the contrary, that the term ‘national security’
should be narrowly defined:
We adopt the position that a person may be said to offend against national
security if he engages in, promotes, or encourages violent activity which is
targeted at the United Kingdom, its system of government or its people.
This includes activities directed against the overthrow or destabilisation of
a foreign government if that foreign government is likely to take reprisals
against the United Kingdom which affect the security of the United
Kingdom or of its nationals. National security extends also to situations
where United Kingdom citizens are targeted, wherever they may be.63
SIAC concluded that it had not been established to a high civil balance of
probabilities that the appellant was likely to be a threat to national security.
The Home Secretary appealed successfully to the Court of Appeal.64
On further appeal to the House of Lords, Lord Slynn acknowledged that
the term ‘in the interests of national security’ could not be used to justify any
reason the Home Secretary had for seeking the deportation of an individual.65
However, he did not accept the narrow interpretation suggested by the
appellant.
I accept that there must be a real possibility of an adverse affect on the
United Kingdom for what is done by the individual under inquiry but I do
not accept that it has to be direct or immediate. Whether there is a real
possibility is a matter which has to be weighed up by the Secretary of State
and balanced against the possible injustice to that individual if a deporta-
tion order is made.66
Lord Slynn stressed the need for SIAC to give due weight to the assessment
and conclusions of the Home Secretary in the light of his responsibilities.67
Lord Steyn agreed, adding that ‘even democracies are entitled to protect
themselves, and the executive is the best judge of the need for international
co-operation to combat terrorism and counter-terrorist strategies’.68 He
concluded by acknowledging the well-established position that issues of
national security do not fall beyond the competence of the courts. But it


62
SIAC was created in 1997 in response to concerns raised in Chahal v. UK (1996) 23 EHRR
413, about the procedures for challenging deportation in the national security context.
Chahal is important for its emphasis on the absolute nature of Article 3 protection in
removal cases and its rejection of the need for a balancing exercise.
63
Note 61 above at para 2. 64 [2000] 3 WLR 1240 (CA). 65 Note 61 above at para 15.
66
Ibid. para 16. 67 Ibid. para 26. 68 Ibid. para 28.
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 171

was ‘self-evidently right that national courts must give great weight to the
views of the executive on matters of national security’.69
Lord Hoffmann continued this theme, stating that SIAC had failed to
acknowledge the inherent limitations of the judicial function which flowed
from the doctrine of the separation of powers and the need ‘in matters of
judgment and evaluation of evidence, to show proper deference to the
primary decision-maker’.70 This restraint did not limit the appellate jurisdic-
tion of SIAC and the need for it ‘flows from a common-sense recognition of
the nature of the issue and the differences in the decision-making processes
and responsibilities of the Home Secretary and [SIAC]’.71 In a postscript Lord
Hoffmann stated:
I wrote this speech some three months before the recent events in New York
and Washington. They are a reminder that in matters of national security,
the cost of failure can be high. This seems to me to underline the need for
the judicial arm of government to respect the decisions of ministers of the
Crown on the question of whether support for terrorist activities in a
foreign country constitutes a threat to national security . . . if the people
are to accept the consequences of such decisions, they must be made by
persons whom the people have elected and whom they can remove.72

The notion that the executive must be deferred to because of its democratic
legitimacy and expertise, particularly in times of crisis, raises several problems.
Lord Hoffmann’s comments suggest that the executive can step outside the
normal application of the rule of law in times of public emergency by making
its own decision about what the law is. In addition, the ruling hampered the work
of SIAC. Rehman is an example of the senior judiciary restraining the more
liberal leanings of an (admittedly flawed) expert tribunal.
As Trevor Allan suggests, the focus should be on the quality of the reasons
advanced.73 The main question should be whether the legal reasoning is
worthy of support in the individual case. To defer mainly because it is an
executive decision based on sweeping assessments of the national security
threat is problematic. In the national security context, the rule of law is tested,
both in the sense of protecting individual rights and ensuring that an effective
regulatory framework exists within which to offer security. By according
conclusive weight to the views of the executive, judges are not discharging
their responsibility to take a view on the meaning of law. If the courts do not
do this they risk abandoning one of the values of the rule of law: the defence of
the person against arbitrary power. Why the House of Lords was prepared to

69
Ibid. para 31. 70 Ibid. para 49. 71 Ibid. para 58.
72
Ibid. para 62. Cf. R. v. BBC, ex parte Pro Life Alliance [2003] UKHL 23, at para 74 ff; R. v.
Secretary of State for the Home Department, ex parte Simms and O’Brien [2000] 2 AC 115.
73
‘Common Law Reason and the Limits of Judicial Deference’ in Dyzenhaus, Unity of Public
Law, 289–306.
COLIN HARVEY
172

insist on its approach in Shah/Islam and ex parte Adan and not in Rehman
remains unclear from the perspective of the substantive legal arguments.
Although dealing with a different issue, similar trends are evident in A and
others v. Secretary of State for the Home Department,74 which concerned the
detention of a number of individuals under the Anti-Terrorism, Crime and
Security Act 2001. The Act and the Human Rights Act 1998 (Designated
Derogation) Order 2001 were introduced after the terrorist attacks of
September 11. The Act empowers the Home Secretary to issue a certificate
if he reasonably believes that the individual’s continuing presence in the UK is
a risk to national security and suspects that the person is a terrorist. Suspected
international terrorists may be detained. There is a right of appeal to
SIAC.75A challenge was brought against the provisions of the 2001 Act
which allow the Home Secretary to detain indefinitely foreign nationals
who are suspected of links with terrorist activity or organizations, but who
cannot be deported, extradited or removed from the UK. The government
derogated from Article 5 of the Convention for the specific purpose of these
provisions. SIAC held that the measures were discriminatory and contrary to
Articles 5 and 14, as they did not apply equally to British nationals.
On appeal against the SIAC decision the Court of Appeal reached a different
conclusion. Following a similar approach to Rehman, Lord Woolf stated:
Decisions as to what is required in the interest of national security are self-
evidently within the category of decisions in relation to which the court is
required to show considerable deference to the Secretary of State because he
is better qualified to make an assessment as to what action is called for.76
British nationals were not in the same position as foreign nationals in this
context. According to Lord Woolf, the non-nationals involved in this case no
longer had a right to remain, only a right not to be removed.77 This distin-
guished their plight from that of nationals. He also stressed the distinction in
international law between the treatment of nationals and non-nationals.
Parliament was entitled to limit the measures to foreign nationals on the
basis that Article 15 of the European Convention on Human Rights (ECHR)
permitted measures that derogate only ‘to the extent strictly required by the
exigencies of the situation’. The tension between Articles 14 and 15 had, Lord
Woolf argued, an important impact. The Secretary of State was obliged to
derogate only to the extent necessary and widening the powers of indefinite
detention would conflict with this objective.



74
[2002] EWCA Civ 1502.
75
For criticism of SIAC from a former member see Sir Brian Barder, ‘The Special
Immigration Appeals Commission’ London Review of Books Vol. 26 No. 6, 18 March 2004.
76
Note 74 above at para 40. 77 Ibid. para 47.
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 173

While acknowledging the importance of human rights protection, the Court
of Appeal also accepted that it had to accord a degree of deference to the views of
the executive when national security is involved. Lord Woolf stated:
The unfortunate fact is that the emergency which the government believes
to exist justifies the taking of action which would not otherwise be accep-
table. The ECHR recognises that there can be circumstances where action
of this sort is fully justified. It is my conclusion here, as a matter of law, and
that is what we are concerned with, that action is justified. The important
point is that the courts are able to protect the rule of law.78
Lord Woolf’s reference to the rule of law rests uneasily with other aspects of
the case. What the statement reveals is a concern to ensure that the govern-
ment’s policy could be justified with reference to established legal norms. But
the rigorous assessment in other immigration and asylum cases was not
present here. It is also evident from the SIAC ruling that scope for disagree-
ment on the content of the law existed in this case. The weight given to the
views of the executive (by both SIAC and the Court of Appeal) on what was
necessary in this context, and whether there was in fact an emergency which
threatened the life of the nation, is revealing. Again, there is evidence that the
views of the Home Secretary are being accorded excessive weight. This is an
area where ‘anxious scrutiny’ of the reasons provided is most needed. In my
view, this is not happening when national security is raised.
Suspected international terrorists have not fared much better on other
aspects of their detention,79 but this deferential trend was halted to some
extent in Secretary of State for the Home Department v. M.80 In this case SIAC
allowed an appeal against an order deporting a Libyan national. M was a
failed asylum seeker, but he was not removed and it came to be accepted that
he could not be returned. He was certified in November 2002 as a suspected
international terrorist, his deportation was sought and he was subsequently
detained. M’s argument was that he feared persecution on return to Libya as a
result of his opposition to the Ghadafi regime. The Home Secretary believed
that he had links to al Qaeda. The judgment of the Chief Justice, Lord Woolf,
contained strong comment on the value of SIAC, which can perhaps be
viewed in the light of the public criticism of this body.81 Lord Woolf stressed
the critical nature of the value judgement which SIAC had to make:
While the need for society to protect itself against acts of terrorism today is
self evident, it remains of the greatest importance that, in a society which


78
Ibid. para 64.
79
See R. (A) v. Secretary of State for the Home Department, [2004] HRLR 12 (Admin)
(refusing on grounds of national security to review conditions imposed on journalists
for an interview of suspected terrorists).
80
[2004] EWCA Civ 324. 81 Note 75 above.
COLIN HARVEY
174

upholds the rule of law, if a person is detained, as ‘M’ was detained, that
individual should have access to an independent tribunal or court which
can adjudicate upon the question of whether the detention is lawful or not.
If it is not lawful, then he has to be released.82
This was the first time SIAC had allowed an appeal under the 2001 Act and
thus also the first time that the Home Secretary had reason to challenge the
decision under this legislation. It also followed the resignation of Sir Brian
Barder.
Another case arising from the work of SIAC was G v. Secretary of State for
the Home Department.83 The case again involved an individual who had been
certified as a suspected international terrorist. He applied to SIAC for a grant
of bail, claiming that his mental and physical health had deteriorated rapidly
as a result of detention. SIAC held that once certain conditions were met he
should as a matter of principle be granted bail. The Home Secretary appealed
against this decision. The Court of Appeal held that it had no jurisdiction to
hear the appeal since bail was not a final determination of an appeal for the
purposes of the legislation. The Home Secretary again reacted badly to the
decision84 and the government’s response was to introduce an amendment to
the Asylum Bill then going through Parliament.85 A, B, C and others v.
Secretary of State for the Home Department involved an appeal against SIAC
decisions not to cancel certificates issued by the Home Secretary.86 The Court
of Appeal held that SIAC had not erred in its approach, but the issue which
provoked considerable comment was the admissibility of evidence which may
have been gathered through the use of torture by other states. The debate on
the efficacy of SIAC continues, with a general view that criminal prosecution
would be the best course of action for those who are now detained under the
2001 Act.
Although not specifically in the national security area a case involving
public order further supports the general argument. In R. (Farrakhan) v.
Secretary of State for the Home Department the claimant was an African-
American US citizen who was refused entry to the UK on public order
grounds.87 The issue was whether Article 10 of the European Convention
on Human Rights was engaged in a decision to exclude an individual to
prevent his expressing opinions in the UK. The Court of Appeal held that
Article 10 was engaged, but concluded that the exclusion was for a legitimate
aim under Article 10(2). Disagreeing with the judge at first instance the Court
of Appeal held that the Home Secretary had provided sufficient explanation

82
Note 80 above , at para 34 (iii). 83 [2004] EWCA Civ 265.
84
‘Blunkett may change law over suspect’s bail’, Guardian, 23 April 2004.
85
Mr Browne, HC Deb. 421 col. 778w, 17 May 2004. See Asylum and Immigration
(Treatment of Claimants, Etc.) Act 2004, s. 32.
86
[2004] EWCA Civ 1123. 87 [2002] 3 WLR 481 (CA).
ASYLUM, NATIONAL SECURITY AND THE RULE OF LAW 175

for the decision. While this involves a difficult assessment, it was not evident
in this case that a ‘significant threat to community relations’ would be the
result of the visit. A different approach was evident in the case of Abu Hamza,
a prominent Muslim cleric who had expressed vocal support for terrorism. In
this instance, however, the individual involved was a British citizen. The
Home Secretary opted to try to revoke his citizenship. Abu Hamza appealed
to SIAC and while his appeal was pending his extradition to the US was
sought. He was subsequently charged under anti-terrorism legislation in the
UK. This case has not been resolved at the time of writing. These cases provide
useful examples of the approaches adopted by the Home Secretary to deal
with those (citizens and non-citizens) whose views and actions are perceived
to be a threat to public order and/or national security. It displays a concern to
control the political activism of both citizens and non-citizens alike.
Beyond the national security context the views of the Home Secretary, and
the administrative perspective, are accorded significant weight, but they are
not generally regarded as decisive. While one can understand a certain
judicial unease in addressing national security matters, excessive deference
to the views of the executive is inappropriate if there is a principled commit-
ment to the consistent interpretation and application of the law. Evidence
suggests that this is precisely the time when the values which underpin the
rule of law need to be upheld. While the Home Secretary will have access to
detailed factual information, and is the person who will face democratic
accountability for the decision, the courts should not automatically defer to
his or her understanding of the substantive content of the law. On this matter
the Home Secretary is in no better position than a judge. This view is
reinforced when one considers that human rights standards are now a secure
part of domestic law in the UK in the form of the Human Rights Act 1998.
The judges have a responsibility to ensure that the law, properly understood,
is applied to all on an equal basis. The risk is that exceptional treatment of
particular groups and particular legal subject areas will lead to further erosion
of existing guarantees.

E. Talking about asylum law
The cases examined address some key areas of disagreement over the meaning of
asylum law. Questions were raised over the definition of ‘refugee’, the manage-
ment of the asylum process, the effective implementation of international
agreements, as well as the matter of national security. The House of Lords has
now clarified central elements of the refugee definition in an attempt to resolve
disputes within the process of adjudication. The Law Lords, in my view, have
not adopted an approach which can easily be reduced to a single or unified
theme. On the current evidence it is not possible to be wholly dismissive or
unequivocally supportive of the role of the senior judiciary. There is no simple
COLIN HARVEY
176

pattern that has emerged in the cases. However, it is inaccurate to describe the
judicial approach as a concerted attempt to undermine government asylum
policy. When they might have been robust they have been deferential. While
there have been incremental advances in doctrinal development, and in ensuring
procedures are applied fairly to each individual, the senior judiciary consistently
displays a measure of deference toward the executive and a rather generous
understanding of the managerial problems faced by successive governments. The
risk in this approach is that the value which the rule of law attaches to the
protection of the individual is steadily eroded and the responsibility for applying
legal standards is neglected.
On national security, decisions reveal an established trend of deference
towards the government’s view. This is evident in Rehman and Farrakhan.
In these cases, the judges selected an approach designed to facilitate govern-
ment policy and relied on deferring to the executive on the basis of its
democratic mandate and/or special position with regard to the facts. The

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