‘(1) Section 97A of the Nationality, Immigration and Asylum Act 2002 (deportation on national security grounds: appeal rights) is amended as follows.

(2) After subsection (1) insert—

“(1A) This section also applies where the Secretary of State certifies, in the case of a person in respect of whom a deportation order has been made which states that it is made in accordance with section 32(5) of the UK Borders Act 2007, that the person’s removal from the United Kingdom would be in the interests of national security.”

(3) For subsection (2)(c) substitute—

“(c) section 2(5) of the Special Immigration Appeals Commission Act 1997 (whether appeals brought against decisions certified under section 97 may be brought from within the United Kingdom) does not apply, but see instead the following provisions of this section.”

(4) After subsection (2) insert—

“(2A) The person while in the United Kingdom may not bring or continue an appeal under section 2 of the Special Immigration Appeals Commission Act 1997—

(a) against the decision to make the deportation order, or

(b) against any refusal to revoke the deportation order,

unless the person has made a human rights claim while in the United Kingdom.

(2B) Subsection (2A) does not allow the person while in the United Kingdom to bring or continue an appeal if the Secretary of State certifies that removal of the person—

(a) to the country or territory to which the person is proposed to be removed, and

(b) despite the appeals process not having been begun or not having been exhausted,

would not breach the United Kingdom’s obligations under the Human Rights Convention.

(2C) The grounds upon which a certificate may be given under subsection (2B) include (in particular)—

(a) that the person would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which the person is proposed to be removed;

(b) that the whole or part of any human rights claim made by the person is clearly unfounded.

(2D) Subsection (2A) does not allow the person while in the United Kingdom to bring an appeal on a non-human-rights ground, or to continue an appeal so far as brought on non-human-rights grounds, if the Secretary of State certifies that removal of the person—

(a) to the country or territory to which the person is proposed to be removed, and

(b) despite the appeals process, so far as relating to appeal on non-human-rights grounds, not having been begun or not having been exhausted,

would not breach the United Kingdom’s obligations under the Human Rights Convention.

(2E) In subsection (2D) “non-human-rights ground” means any ground other than the ground that removal of the person from the United Kingdom in consequence of the decision to make the deportation order would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with a person’s Convention rights.

(2F) If a certificate in respect of a person is given under subsection (2B), the person may apply to the Special Immigration Appeals Commission to set aside the certificate.

(2G) If a person makes an application under subsection (2F) then the Commission, in determining whether the certificate should be set aside, must apply the principles that would be applied in judicial review proceedings.

(2H) The Commission’s determination of a review under subsection (2F) is final.

(2J) The Commission may direct that a person who has made and not withdrawn an application under subsection (2F) is not to be removed from the United Kingdom at a time when the review has not been finally determined by the Commission.

(2K) Sections 5 and 6 of the Special Immigration Appeals Commission Act 1997 apply in relation to reviews under subsection (2F) (and to applicants for such reviews) as they apply in relation to appeals under section 2 or 2B of that Act (and to persons bringing such appeals).

(2L) Any exercise of power to make rules under section 5 of that Act in relation to reviews under subsection (2F) is to be with a view to securing that proceedings on such reviews are handled expeditiously.”

(5) In subsection (3) (appeal against certificate under subsection (2)(c)(iii)) for “(2)(c)(iii)” substitute “(2D)”.’.—(Damian Green.)

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss Government amendment 118.

As the Home Secretary said in her statement to the House on extradition issues on 16 October, and again in her statement about Abu Qatada on 12 November, it takes too long to remove foreign nationals who pose a threat to national security. This new clause intends to limit the circumstances in which national security related deportations attract in-country rights of appeal on human rights grounds. The provision will take away an appellant’s right to have his substantive appeal against deportation heard in country where the Secretary of State certifies that removal prior to his  appeal being finally determined would not breach the UK’s obligations under the European convention on human rights.

The Secretary of State may certify in particular on the grounds that the applicant’s human rights claim is clearly unfounded, or that the individual would not face a real risk of serious, irreversible harm if we moved before the appeals process is exhausted. The clearly unfounded test is well established as it is already set out in section 94 of the Nationality, Immigration and Asylum Act 2002. The test of serious irreversible harm is that used by the European Court of Human Rights when deciding whether to issue a rule 39 direction to suspend removal from a country prior to its substantive consideration and appeals against deportation or removal.

The new clause also implements the approach that the European Court of Human Rights has adopted in its jurisprudence on when domestic regimes must grant in-country appeals. On 13 December 2012, the Grand Chamber of the European Court of Human Rights confirmed, in its judgment in de Souza Ribeiro v. France, that there must be a suspensive appeal in cases where there is a threat to life or risk of torture, but in cases raising issues as to family or private life, a suspensive appeal is not always required. Appellants will have a right to appeal to the Special Immigration Appeals Commission for the certificate to be set aside. The intention is that SAIC would review such an application fairly but expeditiously.

As national security deportation cases often involve human rights claims, where it is alleged that individuals may face the risk of torture or worse on return, there are significant constraints on our ability to deport before an appeal is heard in the UK. The Government take deportation action only ever when they consider it lawful to do so and would not deport if they thought that there was a real risk that the person would be tortured on return. However, we accept that deportees are entitled to challenge that assessment. Moreover, we think it right that they are able to do so before being deported, as an appeal on the basis that one would be tortured is worthless if, in practice, the person has been deported and tortured before the appeal is heard.

Nevertheless, the new clause will support our ability to deport in future cases, in particular, where individuals raise less fundamental human rights issues, such as the right to a private life, or if their human rights claim is unfounded. For example, a person may suffer no serious irreversible harm in being away from their family for a few months while they appeal, even if they claim that permanent deportation would be contrary to the right to family or private life. The person will still have an appeal, and if they win they will be able to return to the UK. Nevertheless, having the individual out of the UK pending the appeal could be of real benefit in the context of the relatively small number of national security deportation cases. This measure is one of a number of reforms being explored by the Home Office and Ministry of Justice to support the Government’s ability to deport foreign national terrorists more quickly than at present. As such, I commend it to the Committee.

I have two questions on the new clause. The Minister touched on the first one. Proposed new subsection (2C) uses the phrase

“real risk of serious irreversible harm”.

The Minister has given one example of that, but I would welcome a clearer definition from him. These matters will be tested in court and it is important that he places a clear definition on record so that that defence does not become a mud pile further downstream when we are trying to deport people who have committed alleged serious terrorist offences.

Secondly, proposed new subsection (2C) states that one of the grounds on which a certificate may be granted is that

“the whole or part of any human rights claim made by the person is clearly unfounded.”

Again, will the Minister indicate what would make a human rights claim clearly unfounded, so that we can have some clarity on the matter should it come before the courts? The people who will be dealt with by the provisions in the new clause are not individuals who will be removed from the country with any great ease. They will use any issue that could help keep them in the United Kingdom. If there is no clarity about what “clearly unfounded” means, I suspect that they may well use the great British judicial system to test that phrase to its nth limit. It would therefore be welcome if the Minister could clear up what the phrase means, so that the deliberations of the Committee can be reflected upon should any such test come before the courts.

I am happy to answer those two questions. The real risk of serious irreversible harm is the test used already by the European Court of Human Rights when deciding whether to issue a direction to suspend removal, so there is a body of case law for the right hon. Gentleman and others to consider. I hope he will accept that one of the virtues of using that test is precisely that it avoids the situation he described of people using the judicial system to play games; in particular, by using the Strasbourg Court test, we are seeking to minimise the opportunity for subjects to delay their removal by raising the issue in Strasbourg. He asked what the phrase means in practice; in particular, the test applies when there is a real risk of violation of article 2, on the right to life, or article 3, on prohibition of torture, of the European convention on human rights. That is what we regard as serious and irreversible harm. In a sense, that is reasonably straightforward.

The right hon. Gentleman also asked about the phrase “clearly unfounded”. To repeat partly what I said in my opening remarks, that is a well established test that was laid down in legislation in 2002, so we have 11 years of case law on what it means. Essentially, it means that a human rights claim will be clearly unfounded if it is not arguable in a court or if it is frivolous—as I say, we have 11 years of case law that establishes what that kind of frivolity is. There are a number of examples of cases that are thrown out by the courts at all times.

The right hon. Gentleman legitimately questioned the two phrases; however, neither is giving rise to any new concepts. Both cover complex issues, but those are not new for the courts: there is a body of case law at both European and national level covering the two concepts. I hope that satisfies him.

Question put and agreed to.

New clause 14 accordingly read a Second time, and added to the Bill.