A story has appeared in The Guardian today that the UK Appeals Court has ruled that it is legal for foreign convicted criminals to be deported without their chance to appeal from the United Kingdom. The right to appeal before deportation was originally enshrined in the Immigrants Appeals Act 1969 and was long considered a problem by the Conservatives to an effective border control system. The following post is based on my research into the UK border control system and counter-terrorism in the 1970s and 1980s and the efforts by Lord Carrington in 1980 to speed up the deportation process for those suspected on being involved in terrorist activities.
In 1980, the Foreign Secretary Lord Carrington requested, upon the urging of the Home Secretary Willie Whitelaw, that the FCO explore measures using the border control system to prevent Middle Eastern and North African terrorism in the UK and the possibility of expanding the widespread interviewing and security checks to a greater number of countries known to be involved in terrorist activities. The catalyst for this request was the siege at the Iranian Embassy by dissident Iranians (who entered the UK on false Iraqi passports) and explosion at the Queens Garden Hotel in Bayswater (near the Iranian Embassy) which killed one Iranian, both occurring in May 1980. The request by the Foreign Secretary asked the following questions:
in what ways can we tighten up on the issue of visas; how can better checks be made; what categories of people should be most closely examined? Can controls at the ports in Great Britain be effectively tightened to improve screening?… What of conducive leave to enter and deportation?[1]
One of the questions that arose out of this discussion of monitoring potential terrorists in the UK concerned what could be done to visitors from the Middle East and North Africa who had been granted leave, but were considered ‘undesirable’ to remain in the country. In several internal documents, FCO and Home Office staff voiced their frustration with the delays involved in deporting someone from the UK, as the Immigrants Appeals Act 1969 allowed the deportee to appeal the decision to deport them. As one report explained:
The power to deport on security grounds has been used very rarely and has proved cumbersome and difficult to operate… The Security Service have gained the impression that Ministers would be reluctant to utilize this procedure.[2]
Douglas Hurd wrote to the Minister for Immigration, Timothy Raisom that it was ‘desirable… to try to limit the extent to which foreign officials, who are found to be using this country as a base for involvement with terrorist activities, are able to exploit legal procedures to delay their deportation’.[3] Hurd warned that ‘[a]ny delay in removing them increases the risk that their government may take action harmful to UK interests or UK citizens as a way of putting pressure on HM Government’ not to deport them, and identified the ‘advisory procedure’ rule (‘whereby a person may make representations against his deportation in a case where he has no statutory right of appeal’) as a significant cause for this delay.[4] Hurd suggested to Raisom that a way around this delay was to make an amendment to the Immigration Rules that only allowed non-patrials to make representations against deportation ‘after they had been removed from this country’.[5] In an earlier draft of the same letter to Raisom, Hurd noted that changing the Immigration Rules would not ‘be too controversially received in this country’ if it was to be ‘restricted to those cases in which the deportations were ordered on grounds of national security’, but did note that any further amendments to right of appeal against deportation would require a legislative change to the Immigration Act 1971, nor could the government ‘prevent such people resorting to Habeas Corpus and the Prerogative Orders.’[6]
Another report reiterated the thinking that the public would be more willing to accept the deportation of foreign nationals and limitations put on appealing these deportations if it was emphasised that they were in the name of national security and focused on a minority national group. The report stated:
It may be that difficulties [with the deportation process] have been over-emphasised and that where intelligence suspicions concern terrorism, particularly by Arab nationals, public opinion would be less critical of the exercise of the security provisions and Ministers would readily consider exercising them. The real constraint however seems likely to remain the availability of intelligence about an individual to justify action.[7]
A similar report enthused that the authorities could deport foreign officials from countries such as Iraq, Iran and Libya (including diplomats) by declaring them persona non grata if there was a suspicion that they would be involved in terrorist activities. The report advised the government ‘could declare a person p n g if we found out that he had links with organs of state terrorism and… [it] would be a punishment to those concerned and would also have a deterrent effect.’[8] The benefit of this, the report continued, was that ‘[n]o reason need be given for declaring a person p n g so the risk of compromising our sources of information would be lessened.’[9] A letter to Hurd’s Chief Clerk from the Maritime, Aviation and Environment Department claimed that the power to declare a foreign official or diplomat persona non grata was ‘clear, straightforward and unilateral’ and was granted under Article 9 of the Vienna Convention on Diplomatic Relations, but warned that this might result in retaliatory actions against UK representatives in other countries.[10]
This discussion reached the top levels of the government, with Peter Carrington imploring Willie Whitelaw to ‘consider more extensive use of your existing powers under section 15(3) of the Immigration Act 1971’, and argued that the it was view of the FCI that ‘these powers could be a useful weapon against suspected terrorists as well as other undesirables’. Carrington also suggested that Whitelaw proceed with limiting the legal procedures that can delay the deportation of a foreign national, ‘once this has been ordered in the interests of national security as conducive to the public good.’[11] This was tied to Carrington’s private concerns that the ‘entry clearance system cannot be a fully effective barrier’, particularly if the sponsors of state terrorism were ‘intent on getting a terrorist into this country… or chooses to employ someone already here’.[12] A letter from the FCO to Gerald Hayden Phillips, Assistant Secretary in the Home Office, stated that Carrington was ‘inclined to think there would be more substance in changing the immigration rules so that the Home Secretary could swiftly deport suspected terrorists without running into the Agee/Hosenball difficulties[13] and in extending the Prevention of Terrorism Act.’[14] Whitelaw’s response was that for the Immigration Act to be effective in deporting suspected terrorists without appeal, ‘the legislation would have to be in sweeping terms, giving the Home Secretary the right to deport instantly without right to appeal’ – a legislative move that he described as ‘highly controversial’.[15]
The Prevention of Terrorism (Temporary Provisions) Act 1976 only covered terrorism offences related to the political situation in Northern Ireland, and there was discussion, prompted by Carrington, into whether the Act could be extended to cover all forms of terrorism – particularly the powers of detention and exclusion. A report outlined that the advantage of the exclusion orders under the Prevention of Terrorism Act was that they ‘were quick and it obviates the necessity for going through the appeals procedure which accompanies deportation under the Immigration Act’, but warned that these orders were of ‘little practical use… unless the power under the Act to make an exclusion order from this country on the authority of the Home Secretary is extended to cover any terrorist.’[16] This, the report noted, would need legislation to amend the Act, which would be a difficult task for the government. Willie Whitelaw, in a letter to Carrington, made a similar claim, stating that amending the Act ‘would be a focus for criticism unless this was done in the context of a dramatic increase in the level of international terrorist incidents in Great Britain.’[17] Whitelaw suggested that the only change ‘which might be made overnight’ related to the ‘extension of the power to arrest and detain suspect terrorists’, but cautioned that ‘[a]ny extension of the power to exclude… would require amending legislation.’[18]
In 1983, a report by Lord Jellicoe into the operation of the Prevention of Terrorism (Temporary Provisions) Act 1976 recognised that Middle Eastern terrorism was an increasing threat to the UK, writing ‘[m]any fear that London… could become a battleground for warring Middle East terrorist factions’, and recommended extending the powers of arrest and detention at ports under the Prevention of Terrorism Act to ‘suspected international terrorists of any group, cause or nationality’.[19] The subsequent amendments in the Prevention of Terrorism Act (Temporary Provisions) 1984 was the first legislative step for the UK authorities to create a generalised counter-terrorist response, rather than a focus on Irish terrorism with other forms of terrorism as a side concern.
[1] ‘Near East/North African Terrorism in Great Britain’, 4 July, 1980, FCO 50/685, NA.
[2] ‘Near East, North African Terrorism in Great Britain: Possibilities for Preventive Action’, n.d., p. 5, FCO 50/685, NA.
[3] Draft letter from Douglas Hurd to Timothy Raisom [second version], n.d., FCO 50/685, NA.
[4] Draft letter from Douglas Hurd to Timothy Raisom [second version].
[5] Draft letter from Douglas Hurd to Timothy Raisom [second version].
[6] Draft letter from Douglas Hurd to Timothy Raisom [first version], n.d., FCO 50/685, NA.
[7] ‘Near East, North African Terrorism in Great Britain’, p. 5.
[8] ‘Near East/North African Terrorism in Great Britain’, p. 6.
[9] ‘Near East/North African Terrorism in Great Britain’, p. 6.
[10] Letter from M St E Burton to Mr Adams, 20 November, 1980, p. 5, FCO 50/686, NA.
[11] Letter from the Foreign Secretary to the Home Secretary, 5 December 1980, p. 4, FCO 50/686, NA.
[12] Letter from the Foreign Secretary to the Home Secretary, 5 December 1980, p. 4.
[13] Philip Agee and Mark Hosenball were two American nationals who were deported after a very lengthy process from the UK in the mid-1970s. Philip Agee was a CIA officer based in the UK, who was suspected by the US authorities (who allegedly put pressure on Merlyn Rees and James Callaghan to deport Agee) of exposing CIA activities in the Caribbean. Hosenball was a journalist who had written a piece for Time Out magazine on the UK security services. There was considerable public support for both men to remain in the country, but were eventually deported in 1977. See: R v Secretary of State for the Home Department, ex parte Hosenball [1977] 1 W.L.R. 766; [1977] 3 All E.R. 452; Duncan Campbell, ‘Official Secrecy and British Libertarianism’, Socialist Register (1979) pp. 75-88; Duncan Campbell, ‘The Spy Who Stayed Out in the Cold’, The Guardian (10 January, 2007),
http://www.guardian.co.uk/world/2007/jan/10/usa.duncancampbell (accessed 17 April, 2013)
[14] Letter from M St E Burton to G.H. Phillips, 26 August, 1980, FCO 50/685, NA.
[15] Letter from Willie Whitelaw to Peter Carrington, 6 November, 1980, FCO 50/686, NA.
[16] ‘Near East/North African Terrorism in Great Britain’, p. 7.
[17] Letter from Willie Whitelaw to Peter Carrington.
[18] Letter from Willie Whitelaw to Peter Carrington.
[19] Rt. Hon. Earl Jellicoe, Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1976 (London: HMSO, 1983) p. 27.
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