Response to Consultation - Deportation with assurances: call for evidence

Introduction

The Commission welcomes the review of the government's policy of deportation with assurances ('DWA') to be carried out by the Independent Reviewer of Terrorism Legislation. We note that a practice of seeking assurances in the context of deportation on national security grounds has been adopted by successive governments since at least 1992, when the Home Secretary sought assurances against ill-treatment from the Indian government as part of its attempt to deport Karamjit Singh Chahal. Increased reliance on DWA was highlighted by the Home Secretary in the wake of the judgment of the House of Lords in the Belmarsh case, and by then Prime Minister Tony Blair following the 7/7 bombings. The use of DWA was also at the forefront of the Coalition government's efforts to deport Abu Qatada to Jordan. There has been no detailed public consultation on the policy of DWA until now.

The Commission has previously raised concerns about aspects of the DWA procedure and its use in particular in its two submissions to the UN Committee Against Torture in August 2012 and April 2013, as well as in its Human Rights Review 2012.

The Commission fully recognises that instances will arise when the danger to the public good is assessed as sufficiently serious to make deportation a desirable option and that issues will therefore arise on how this can be enacted within treaty obligations. However, in 2004, the Privy Council Review Committee into the Anti-Terrorism Crime and Security Act 2001 concluded that "seeking to deport terrorist suspects does not seem to us to be a satisfactory response, given the risk of exporting terrorism". We consider that the Review should address both the underlying merits of the policy of DWA, and consider the differing views from the ECHR and UN bodies on the basic comparability of the policy with the UK s treaty obligations.

The Terms of Reference appear to assume that DWA "enables the UK to deport foreign nationals suspected of terrorism in compliance with its obligations under the European Convention on Human Rights, the UN Convention on Torture and the International Covenant on Civil and Political Rights". Although it is correct that the European Court of Human Rights has found that the use of DWA does not give rise to a violation of the European Convention in every case, and that each case must be assessed on its own facts, the UN Committee against Torture and the UN Human Rights Committee have each strongly criticised the UK's reliance on DWA as contrary to its international obligations under those instruments. As the Committee against Torture concluded in May 2013, "the Committee considers that diplomatic assurances are unreliable and ineffective and should not be used as an instrument to modify the determination of the Convention". The Commission therefore urges the Independent Reviewer to include in his report analysis of whether and how DWA is compatible with the UK's obligations under the Torture Convention and the ICCPR.

The UN High Commissioner Louise Arbour told Chatham House in 2005, that assurances against ill-treatment "create a two-class system among detainees, attempting to provide for a special bilateral protection and monitoring regime for a selected few and ignoring the systemic torture of other detainees, even though all are entitled to the equal protection of existing UN instruments" . This document sets out certain minimum requirements that all assurances should meet in order to ensure their compatibility with the UK's international obligations in this area. In particular, the Commission considers that effective verification of assurances is essential if DWA are to offer adequate protection against ill-treatment.

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Response to Consultation: deportation with assurances call for evidence

Last Updated: 09 Jan 2015