‘Temporary Exclusion Orders’ and their Implications for the United Kingdom’s International Legal Obligations, Part I

This is Part I of a two-part post, a modified version of a legal opinion submitted to the UK Parliament’s Joint Committee on Human Rights. This Part discusses the implications of temporary exclusion orders for the UK’s international obligations to British citizens. Part II, to be published tomorrow, will discuss the implications for its obligations to other States.

Introduction

The United Kingdom Government’s recent proposals to introduce a system of ‘temporary exclusion orders’ (TEOs) to be applied to British citizens raise a number of international legal issues, including (a) the responsibility of the State to its citizens; (b) the responsibility of the State to other States; and (c) the responsibility of the State to the international community of States at large when combatting terrorism.

In my view, the proposal for a system of TEOs to be applied to British citizens raises a host of insuperable legal and practical problems.

First, denying entry to the United Kingdom of British citizens suspected of involvement in international crimes or serious crimes of international concern, besides posing potential risks for other States, is likely incompatible with the duties which the State owes to its citizens, with the rights of other States, and with the obligation of the UK to prosecute certain offences (for which concerted international action is required).

Second, at the practical level, there is no reason to suppose that any other State would be prepared to accept the risks incidental to assuming responsibility for excluded British citizens. These risks include the security question – the possible threat to the community of the ‘host’ State – as well as the legal risks which attach to taking responsibility for the individuals concerned, whether or not they are detained. As the United Kingdom now recognizes its duty to admit its citizens on deportation, any potential host State would be well advised to go for this option.

Third, the implementation of TEOs in practice, though speculative at this stage, seems likely also to impede the UK’s ability to fulfil its international obligations to combat terrorism, effectively and in good faith, and the scheme certainly outwith the letter and the spirit of paragraph 6 of Security Council resolution 2178 (2014).

Finally, it is clear, in my opinion, that TEOs will engage the legal rights of those affected, under the common law (including the writ of habeas corpus), possibly under European Union law (cf. the judgments of the Grand Chamber in Rottman v Freistaat Bayern and Zambrano v Office national de l’emploi), and certainly under the European Convention on Human Rights. The ensuing and readily foreseeable litigation will lead to considerable wastage of resources and funds which would be better directed to implementation of the measures identified by the Security Council in resolution 2178 (2014). The TEO initiative, in my view, should be abandoned in the public interest.

Responsibility to citizens

Nationality and jurisdiction

The citizen’s right to return to his or her own country and the State’s duty to admit its citizens has been described in earlier contributions to recent debate on the limits to executive and legislative competence and will not be repeated. (See a previous paper on Mr. Al-Jedda and three on deprivation of citizenship causing statelessness, here, here, and here). For present purposes, it suffices to recall the simple and straightforward statement of the law expressed in the words of Sir Robert Jennings and Sir Arthur Watts:

‘Nationality is the principal link between individuals and international law. The right is that of protection over its nationals abroad… The duty is that of receiving on its territory such of its nationals as are not allowed to remain on the territory of other states…’ (Oppenheim’s International Law, 9^th edn., 857-9, §379).

It is satisfying to note that the Government accepts the United Kingdom’s legal responsibility to admit its citizens on deportation, as described in the earlier papers listed above. It is nonetheless apparent that little or no attention has apparently been given to the only viable way by which citizens might be excluded from the UK, that is, through agreements with potential ‘host’ States. Such agreements would not remedy the most fundamental legal objections to the practice, but consideration of their possible scope will clarify the difficulties to be faced by the UK and other States in trying to bring the practice within the bounds of international law; these aspects are considered further in the Section on Responsibility to other States, in Part II of this blog post.

The European Convention on Human Rights

Given what has been said in earlier debates, given the jurisprudence of the International Court of Justice and the European Court of Human Rights, and given the clear exposition of the law in the works of leading British international lawyers such as Sir Robert Jennings, Sir Arthur Watts and Sir Ian Brownlie, it is somewhat surprising, to say the least, to find the Home Office pretending that a decision to exclude British citizens from their country does not directly engage their European Convention rights, ‘because they are out of the jurisdiction’ (Immigration Bill. European Convention on Human Rights. Supplementary Memorandum by the Home Office, 29 January 2014, paras. 9-17).

On the point of general international law, the Home Office Memorandum on the Counter Terrorism and Security Bill (the ‘Counter Terrorism Memorandum’) simply repeats the same error as it made in its earlier contribution on deprivation of citizenship. It remains incorrect, and one needs to do little more than follow the index of Oppenheim (sc. ‘Jurisdiction, citizens abroad’) to learn that ‘nationals travelling abroad’ remain under the State’s ‘personal authority’ (Oppenheim, 9^th edn., 463, §138; also 384-5, §118), and that ‘a state’s nationals would appear to be within the state’s jurisdiction for the purpose of its obligations to ensure human rights to all persons within its jurisdiction’ (Ibid, 462, §138, n. 1; also 1016, §440, n. 30; 1020; §442, n. 5). Nothing has changed in international law since this treatise was published some twenty-two years ago, in 1992; on the contrary, the State’s duties towards its citizens have been clarified and consolidated.

The Counter Terrorism Memorandum states that the Home Office, ‘considers that the new provisions are capable of being exercised compatibly with the ECHR’. Its argument, however, is based on a fundamental misunderstanding of the role of nationality and its link to jurisdiction, as summarised above and as described in greater detail in earlier submissions. As noted in paragraph 26 of my Opinion of 12 March 2014 in connection with deprivation of citizenship:

‘It is certainly wishful legal thinking to suppose that a person’s ECHR rights can be annihilated simply by depriving that person of citizenship while he or she is abroad. Even a little logic suffices to show that the act of deprivation only has meaning if it is directed at someone who is within the jurisdiction of the State. A citizen is manifestly someone subject to and within the jurisdiction of the State, and the purported act of deprivation is intended precisely to affect his or rights. The link to the protection of the Convention is therefore solid enough for the purposes of supervisory review, with regard not only to private life considerations, but also to questions of inhuman or degrading treatment, among others.’

The same principle of responsibility would apply to limitations on citizenship rights falling short of deprivation. It is somewhat curious, to say the least, to find the Home Office citing a European Court of Human Rights judgment dealing with a Pakistani citizen in Pakistan in support of its denial of responsibility towards British citizens, wherever they may be. Even in the paragraph cited by the Home Office (§24), the European Court of Human Rights emphasises that its ruling applies, ‘in this case…’ In the next following paragraph (§25), it goes on:

‘A State’s jurisdictional competence under Article 1 is primarily territorial. However, the Court has recognised two principal exceptions to this principle, namely circumstances of “State agent authority and control” and “effective control over an area” (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 130-141, ECHR 2011). In the present case, where the applicant has returned voluntarily to Pakistan, neither of the two principal exceptions to territorial jurisdiction apply. This is particularly so when he does not complain about the acts of British diplomatic and consular agents in Pakistan and when he remains free to go about his life in the country without any control by agents of the United Kingdom. He is in a different position, both to the applicants in Al-Saddoon and Mufdhi (who were in British detention in Iraq and thus, until their handover to the Iraqi authorities, were under British authority and control) and to the individuals in Al-Skeini and Others (who had been killed in the course of security operations conduct by British soldiers in South East Iraq)’ (Khan v United Kingdom, §25).

None of these cases concerned British citizens. It is manifestly clear from what has been cited above that the issue of nationality can be and is determinative; in and of itself, it is sufficient to establish that jurisdictional link which was absent in the Khan case.

Moreover, while the Counter Terrorism Memorandum appears to recognize that duties exist with regard to citizens (and, indeed, with regard to non-nationals), the Home Office Impact Assessment on temporary exclusion orders clearly does not (‘Counter-Terrorism and Security Bill – Temporary Exclusion Orders’, Impact Assessment: IA No: HO0144, 21 November 2014 (the ‘Home Office Impact Assessment’)). For example, already in paragraph 2 of the Counter Terrorism Memorandum, the Home Office acknowledges that the exercise of the power to seize travel documents, ‘could effectively render the person destitute, constituting inhumane treatment’ (Home Office, Counter Terrorism Memorandum, para. 3). Here, it seems to recall the fate of a predecessor government’s policy to impose destitution on certain categories of asylum seekers (the notorious section 55 of the Nationality, Immigration and Asylum Act 2002). It rapidly became clear at the time that the implementation of this policy would all too often cross the Article 3 ECHR threshold and lead to inhumane and degrading treatment (Q and Others v. Secretary of State for the Home Department [2003] EWHC 195 (Admin); [2004] QB 36 (Court of Appeal)). The general implications of this jurisprudence are significant. The Home Office Impact Assessment, however, seems to have missed this point, insofar as it asserts that, while a British Embassy ‘may provide limited, urgent assistance to an individual subject to a TEO’, there is ‘no legal obligation’ to do so (Home Office Impact Assessment, 5).

If there is an obligation to protect asylum seekers from destitution, then such duty can hardly be denied with regard to British citizens, who are within jurisdiction by reason of their nationality alone. The applicability of the European Convention on Human Rights to the activities of diplomatic and consular officials is expressly recognized as an exception to the primarily but not exclusively territorial jurisdiction of the State, as the European Court of Human Rights acknowledged in Banković (§73: ‘cases involving the activities… of diplomatic or consular officials…’). On the basis of United Kingdom and ECHR practice, it can be readily appreciated that if a British Embassy declined to assist an abandoned citizen in circumstances resulting in or raising a serious risk of destitution, then the courts would have little hesitation in attributing liability.