Liz Griffith [Policy Officer, Law Centre (NI), Belfast, Northern Ireland]: "President-elect Obama's apparent decision to close Guantanamo has received wide support in the UK government. Nine UK nationals were returned to the UK in 2004 and 2005 following extensive campaigning by civic society and high level representations from the UK government. Three men who were previously lawfully resident in the UK were also returned in December 2007. Organizations, such as Amnesty International, are still campaigning for the release of 3 more men who have connections to the UK.
Despite speculation, the Foreign Office has confirmed that it has made no formal offer to the US to accept any additional detainees. However, the UK has urged European countries to follow its example in respect of their own nationals and former legal residents.
This comment outlines a backdrop to some of the legal issues that could arise if the UK agrees to accept additional detainees. This only applies to Guantanamo detainees from other countries, such as Yemen, who have never held UK residency and have no UK connections but who cannot be returned to their own country.
Exclusion from refugee status
A Guantanamo detainee may be eligible to submit an application for asylum in the UK under the 1951 Refugee Convention [PDF file]. However, the Refugee Convention contains exclusion clauses that prevent its provisions being extended to persons who are considered to have committed serious crimes or to be a threat to national security. In such circumstances, a person cannot be awarded the usual 5 years limited leave or refugee status, or the equivalent human rights status. Potentially, these exclusion clauses could apply to some Guantanamo detainees. However, none of the returned Guantanamo detainees have been brought to trial in the UK.
Living in limbo?
What status, if any, could thus be granted to detainees who are excluded from refugee status? This issue became apparent in February 2000 when nine Afghans intent on fleeing the Taliban hijacked an airplane and flew to London. The then Home Secretary expressed his determination to deport everyone on the airplane. However, the nine hijackers, fearing reprisals, argued that they would be subject to torture or serious harm on return to Afghanistan. The exclusion criteria clearly applied and the UK would be in breach of its human rights obligations if it were to deport the men. The government was determined not to grant the hijackers any form of status that would enable them to work, study or access benefits, thus effectively leaving the men in limbo. The case was heard before the Court of Appeal amidst widespread political controversy and media condemnation. The court ruled it unlawful to leave the hijackers in limbo and ordered a grant of leave, to be reviewed every six months. This was a landmark case in asylum law and could potentially affect Guantanamo detainees.
Anti-terror legislation and Control Orders
Another issue that may be relevant to Guantanamo Bay detainees deemed to pose a terrorist threat is Control Orders. Following the events of September 11th 2001, the UK government entered a derogation to the European Convention on Human Rights Article 5(right to liberty and security). This derogation enabled parliament to pass the Anti-Terrorism, Crime and Security Act 2001 which provided for indefinite detention without trial for foreign nationals who were considered a risk to national security but whose deportation would put them at risk of ill treatment. Ten men were detained under these new powers and were not brought to trial as the government argued that prosecution would risk revealing "sensitive and dangerous intelligence." However, after a lengthy legal battle, the government's derogation was quashed by the House of Lords who ruled that even if a public emergency existed, the legislative response was disproportionate and that the discriminatory aspect was incompatible with the Convention.
The government responded by enacting new anti-terror legislation, the Prevention of Terrorism Act 2005. This provided the legislative basis for Control Orders: a stringent restriction regime sometimes referred to as a "prison without bars." Control Orders have attracted significant legal scrutiny and the courts have declared some of the most intrusive restrictions — such as 18 hour curfews – to be incompatible with human rights legislation. However, in February 2008, parliament renewed Control Orders legislation and their validity. This could mean that a Guantanamo detainee resettled in the UK could become subject to a Control Order.
The political climate
It remains unclear what would happen to any additional detainees who are resettled in the UK. Asylum is a highly politicized issue in the UK and each year sees the advent of new, more stringent legislation that affects all forms of immigration. In recent years, parliament has attempted to pass legislation that could undermine human rights such as increasing pre-charge detention to 42 days. In this instance, the House of Lords acted to prevent its implementation. The European Court on Human Rights (ECtHR) has thankfully remained somewhat impervious to the changing political climate and has consistently ruled against states' attempts to reduce human rights obligations. For example, last year ECtHR declared that states could not rely on "memorandums of understanding," a form of diplomatic assurance that European states argued would prevent the torture or ill treatment of a person if deported to their home country. Despite the worrying political trends to the contrary, civic society is hopeful that human rights will gain new respect under the new US administration. All eyes are on Obama!"
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