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Background

Seventeen persons have been certified as “suspected international terrorists” under the ATCSA.¹⁰ Certification by the Home Secretary requires only “a reasonable belief” that a foreign national present in the U.K. is a threat to U.K. national security and a “suspicion”¹¹ that the person is a “terrorist” as defined by the act.¹² Of the seventeen persons certified to date, twelve are being indefinitely detained without charge under the act, one is being detained under other unspecified powers, one has been released on bail (and is effectively under house arrest) and two have left the U.K. One has been released following a successful appeal against certification. Eight of those detained under the ATCSA have been in custody for more than two years. The men are being held in category “A” maximum security prisons and in one case a high security psychiatric hospital.

The ATCSA detainees are foreign nationals whom the U.K. government says it would deport to their home countries were it not for the risk that they would be tortured if sent there. Unlike the due process guarantees suspended by the U.K., the prohibition against torture cannot be derogated from under any circumstances.¹³ Because of the threat that the U.K. government says the men pose, it is unwilling to allow them to remain at liberty in the U.K. The government also argues that because its evidence against the men is based on classified intelligence, it cannot successfully prosecute those certified under ATCSA. The men are therefore trapped in limbo. The U.K. government’s argument that the men are “free to leave at any time” is fallacious. If the men were able to leave safely, they would surely have followed the two men certified under the act who have already done so, rather than face continued indefinite detention. Equally, if it were safe for the men to leave voluntarily, the U.K. could also safely deport them.¹⁴

International law does not permit indefinite detention without trial under any circumstances. Immigration detention is only lawful under the European Convention on Human Rights (ECHR) where “action is being taken with a view to deportation or extradition.”¹⁵ It is settled law that the detaining state must be taking action with “due diligence” to deport (or extradite) the detained person.¹⁶ Where the person cannot be removed, the state clearly cannot meet the due diligence test, and the detention is incompatible with human rights law. In order to make ATCSA compatible with the U.K.’s obligations under international and regional human rights law and with the U.K. Human Rights Act (which incorporates the ECHR into domestic law), the U.K. government therefore had to derogate from human rights obligations.

Derogation required the U.K. government to make a formal declaration that there was a state of emergency threatening the life of the nation and making the suspension of rights necessary. On December 18, 2001, the U.K. government formally derogated from article 5(1)(f) of the ECHR, which protects against deprivation of liberty except for purposes of deportation or extradition.¹⁷ On the same date, the government informed the U.N. Secretary-General that a public emergency within the meaning of Article 4(1) of the International Covenant on Civil and Political Rights (ICCPR) exists in the United Kingdom and of its intention to “avail itself of the right of derogation” from article 9 of that treaty, governing the deprivation of liberty.¹⁸  

Those detained under the ATCSA are able to challenge their detention in the Special Immigration Appeals Commission (SIAC), but with far fewer procedural guarantees than are accorded to those charged with a crime. Established in 1997 in the wake of the landmark Chahal case in the European Court of Human Rights,¹⁹ SIAC is a special tribunal that reviews deportation cases involving national security issues. SIAC uses a system of dual hearings and legal representation adapted from the Canadian courts, with each detainee assigned a special advocate, in addition to his own legal representative of choice. The special advocates, all of them experienced barristers, have security clearance enabling them to review the classified material that forms much of the evidence on which terrorist certifications are based. They attend special closed sessions of the SIAC, from which the detainee and his legal representative of choice are excluded. The special advocate is not permitted to discuss the case with the detainee or his designated legal representative once the special advocate has been granted access to the classified material, unless the special advocate first obtains permission from SIAC. The system also includes open hearings, where non-classified evidence is heard, and which the detainee and his designated legal representative are permitted to attend.