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The PM’s “foreign fighters” plan: probably lawful

Chris Fleming | Creative CommonsOvernight in Australia, the Prime Minister announced new counter-terrorism powers which he intends to introduce in a bill in the next few weeks. He said there’d be

New powers for police at ports to seize passports, to stop suspects travelling and to stop British nationals returning to the UK unless they do so on our terms.

Perhaps because in September, at an earlier stage of work on this proposal, the Prime Minister has in the past referred to a version of this idea by saying

what we need is a targeted, discretionary power to allow us to exclude British nationals from the UK

or perhaps because No. 10 is calling the new power a “temporary exclusion order”, some media reports are focusing only on the “exclusion” element of the plan, and thinking Britons would be entirely prevented from returning here for two years.

This Channel 4 report for instance gives the impression British citizens would be “banned” from entering the UK, and this piece in the Independent suggests they’d be barred for two years, as does the headline on this Newsweek piece. These confusions may arise from the government’s attempts to make the new powers sound as tough and exclusionary as possible.

If that were the plan, it might indeed fall foul both of international law on statelessness, and on our own domestic law: British citizens have a right of abode in the UK, which includes the right to return here from abroad. I think this confusion that may be driving some early criticisms of the proposal.

But I don’t think it is the plan at all. Like Dominic Grieve, I understand the proposal as involving no “ban” on return at all – merely a ban on what might be called an unarranged return. Those UK citizens subject to “temporary exclusion orders” would be free to come home at any time, by arrangement with British authorities. A Downing Street spokesman confirmed my understanding this afternoon. This is how the plan is meant to work.

If the Home Secretary reasonably suspected someone of involvement in terrorist activity abroad, she could make a temporary exclusion order against him. That would cancel his passport, and put him on a “no-fly” list. As a result it would difficult for him to return to the UK under his own steam. He might be able to cross borders in the Middle East, but could not board a flight to London from Ankara or Istanbul. The order would last for two years.

But if I lost my passport abroad, I’d go to the British consulate – and so could the “excluded” person, if he wanted to go home during the two-year period. He’d be free to come back, by arrangement: perhaps under a restricted travel document allowing him only to board a pre-arranged flight; in all likelihood being escorted by officials of a more or less shadowy sort; and no doubt having a kind of official reception on landing. Once here, he could be arrested for a suspected offence or be subject to a “TPIM” (a terrorism prevention and investigation measure). Or the temporary exclusion order itself might impose separate conditions on him.

I think what’s intended is analogous in a way to the “three walled prison” the Labour government built round foreign terror suspects at Belmarsh a decade or so ago. If you remember, those were people who could not lawfully be deported, so were detained indefinitely – unless they volunteered to return home, in which case they were free to go. It was a plan ruled incompatible with human rights by the House of Lords in “the Belmarsh case”, A v Home Secretary, in 2004, because a disproportionate interference with liberty, and because it discriminated against foreign nationals.

Rather than a three-walled prison, a temporary exclusion order would be an “open funnel” back to the UK. A person subject to one would be free to come home at any time; it’s just that he’d be funnelled back here by a particular route. Yes, he’d be stuck if he was determined not to come back in that way (and the temporary exclusion order would be renewable, by the way). But he’d be stuck only in the same sense as someone who refused ever to go through customs; or who refused ever to fly in any plane, go on any boat and enter any tunnel. That person would have to remain abroad – but not because of any ban.

So this would neither strip terror suspects of British citizenship, not render them practically stateless nor, as Liberty has put it, “dump” them on other countries. The UK would not be refusing to accept them, or refusing to cooperate in their return to the UK. So I don’t think the proposal runs into international law problems.

While article 12.4 of the International Covenant on Civil and Political Rights (the ICCPR) says

No one shall be arbitrarily deprived of the right to enter his own country

that is not what the proposals would do.

Nor do I think there’s a domestic law issue. British citizens have the “right of abode” in the UK which, as section 1(1) of the Immigration Act 1971 makes clear, includes the right to leave the UK and come back:

All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.

As you can see from this provision, the right to come into the UK is not unconditional: there is no absolute right to enter “without let or hindrance”. The right is to enter without let or hindrance except such as may be … lawfully imposed on any person. The government’s argument would be (and I think it’s a good one) that a temporary exclusion order would impose a hindrance on entry into the UK; and that the hindrance would be lawfully imposed under the legislation empowering the Home Secretary to make such orders.

Could there be a human rights problem? I doubt there’s an insurmountable one. A temporary exclusion order would not interfere with a suspect’s right to respect for family life, for instance: it would not stop him from coming back to be with his family in Britain. And even if I’m wrong about that, the article 8 right to family life is not unqualified, and whatever interference there might be with it could surely be defended as proportionate in national security terms.

There could be a breach of the right to a fair hearing, if there were no way of challenging a temporary exclusion order. But I’d be surprised if the legislation precludes a legal challenge. Since article 5 of the European Convention on Human Rights permits detention on suspicion of an offence, to secure the fulfilment of any obligation prescribed by law and to prevent someone effecting an unauthorized entry into the country, arrest and detention of an “excludee” on landing in the UK (who would by definition by suspected of a terrorism offence, at least by the Home Secretary) would probably be legally defensible where it was necessary.

The temporary exclusion order would not in itself interfere with liberty – at least, I’d be very surprised if a court said so – and even if it did, it would surely do so proportionately. Nor is there any question here of discrimination against Britons. So I don’t think this proposal is as vulnerable as the old three-walled prison.

As a matter of interest, Britain has not ratified Protocol 4 to the European Convention on Human Rights, article 3.2 of which says

No one shall be deprived of the right to enter the territory of the State of which he is a national.

But even if we had ratified, it, this provision would not be breached any more than article 12 of the ICCPR would.

I can just about imagine an argument that EU law gets in the way of the proposal. But a British citizen trying to travel home from from Syria or Turkey would not be a national of another member state exercising free movement rights, and so would not fall within the EU citizens’ free movement directive (see article 3.2); and even as a UK citizen, coming back from fighting Turkey as opposed to a job in France, say, he would not be exercising Surinder Singh-type reverse free movement rights when coming back. So EU law’s unlikely to help him.

Of course we don’t know the detail of the proposal yet; there may be some devil in it. But on what we do know, I think the government’s on defensible legal ground.

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  1. Very helpful.
    I appreciate that this blog is about the law. But I have been wondering about possible unintended practical consequences.
    Suppose that there are a number of cases dealt with in this way, some of them notorious. The individuals concerned decline to submit to the new British procedure and are therefore stuck somewhere else, let us say in France.
    Will there not be agitation in France to block the next bearded Muslim Brit who seeks entry? Not of course that they could refuse him entry, that would not be communeautaire. But they could dream up some bureaucratic procedure which would in practice prevent him enjoying his summer holiday, or doing his export business, or pursuing his studies.
    Life being unfair, he would blame Mrs May, not the French.

  2. How would someone subject to one these orders get to France? I don’t think he could, without a valid passport. So if these people are stuck, I doubt it’ll be in France. I think that’ll only happen if someone happens to be part of the way home when the order is made. The French might then deport him here; or he might be returned under a European Arrest Warrant, that wicked measure that so many Conservatives detest.

    So I’m not sure this really has potential to cause resentment elsewhere in the EU.

  3. The UK government can impose restrictions on our hypothetical jihadi entering the UK, but they have no right to prevent him entering any other EU country. Unless every EU country took a common decision to exclude such people on grounds of public safety, why would cancelling his passport not amount to an infringement of his free movement rights and so be contrary to EU law?

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    […] The PM’s “foreign fighters” plan: probably lawful, by Carl Gardner on his Head of Legal blog, analysing the lawfulness in domestic and international law of imposing restrictions on jihadists returning home after fighting abroad […]