Topic: Counter-terrorism Measures after September 11, 2001: the effect on International Mobility and Migrant Workers in the United Kingdom.
The United Kingdom entered the twenty first century with radical changes to its migration legislations largely in response to the surge in terrorism activities against its interest domestically and oversees. The new legislations enacted to guarantee homeland security from the threats and attacks from terrorist elements have unwittingly extended to impact the lives and migrants including those seeking to enter the country and those already residing there. This study will essentially be assessing how the evolution of anti-terrorism legislations in the United Kingdom since the dawn of the new millennium has impacted the state of migration over the last decade and of course the possible ramifications coming out of this.
Key Words: Migration, legislation, terrorism, United Kingdom
The world witnessed a major shakeup in international jurisprudence following the tragic events of the 2001 terrorist attacks on strategic locations in the United States. A shakeup that has left pundits within the legal fraternity sharply divided on the legality or otherwise in pursuing tough measures in combating future terrorist activities; indeed the United Kingdom and its traditional ally have especially borne the heaviest brunt of criticism emanating from critics of the so-called scorn of international laws perpetrated under draconian instincts. Both countries have especially come under fire for their loose definition of what constitutes terrorism inasmuch as such definitions have informed the promulgation of anti-terror laws.
For instance Human Rights Watch is on record to have called into question the looseness of these definitions and the accompanying laws that come out of them within the backdrop of how these anti-terrorism laws are steadily becoming an impediment to the safeguard of international human law.
Typically, the United Kingdom has become reputed for the enactment of anti-terror laws that bars entry and residence permit for foreign individuals and groups suspected to have terrorist links. Though this provision superficially appears to be consistent with the national security interest of the United Kingdom, the trouble with most of these post September 11, 2009 anti-terror laws is that it has loopholes that subtly deny migration access to legitimate asylum and refugee applicants. Mere expression of concern admittedly does not do so much to resolve the dilemma of addressing legitimate humanitarian obligations on the one hand and national security on the other hand.
Suffice to take extend look at the discourse of the United Kingdom’s counter-terrorism legislations within the broader framework of the European context using the events of post September 11, 2001 as the reference point. After studying the trend of the effects of post September 11, Cole (2007) made very stunning observations in his written work entitled “Terrorism and the Foreigner: A Decade of Tension around the Rule of Law in Europe” which among other things sought to say that the dominant perception within Europe is that open asylum legislations are potentially “a liability in the fight against international terrorism.” For this reason law makers in Europe considered it wise to believe that “more safeguards were needed to prevent the use of international refugee protection as a safe haven by those who had committed terrorist acts elsewhere” (Pp. 57). With this in mind it becomes illuminating to understand the scope of the United Kingdom’s position with regards to counter-terrorism, giving that she is in many ways not operating in isolation to the dominant consensus within the European fraternity.
Given that the current definition of terrorism or who is a terrorist and who is not, remains covered in smog and sooth, it will be appropriate to turn to international statutes to provide useful insights into where we ought to be standing on this question. Indeed, the widely acclaimed international Refugee Convention of 1951 under Article 1F has provision for the denial of protection for individuals or groups indicted for culpability in the violation of humanitarian law, a war crime and all other such statutes that contravene the word and spirit of the principles defining the statutes of the United Nations. In recent times the wave of violent terrorist attacks such as the Madrid bombings, the infamous September 11, 2001 and the July 7, 2005 attacks in London have prompted security experts to broaden the definition of terrorism and its application under the Refugee Convention of 1951, effectively therefore excluding people with connections to these events from accessing the protection provided by Refugee Convention. Asylum seekers with suspect backgrounds become very likely targets of denials under Article 1F of the Convention which certainly has implicit implications on international mobility.
Notwithstanding the fact that the post September 11 counter-terrorism legislations in the United Kingdom have been enacted with national security interests as its topmost goal, its harmony with international statutes have been called to question especially with regards to the definition and application of who constitutes a terrorist. As an example the European Council on Refugees and Exiles expressed “grave concern2” over the blanket application of statutes on refugee exclusion. Of particular interest to this study is the extent to which counter-terrorism laws are being applied on the front of provision of “material support” to terrorists. Since 2001, the United Kingdom has been able to come out with adequate measures that allow for wider powers that shields its immigration policies against abuse by individuals with diabolic terror links.
Most of these powers are enshrined in the Anti-Terrorism, Crime and Security Act 2001. Among other things the Act empowers the Home Secretary with the ability to upon reasonable and justifiable grounds of suspicion to label an alien as an “international terrorist” granted there is enough reason to believe that the presence of the individual in question constitutes a threat to the national security of the United Kingdom. The threat posed by the suspected individual should be such that the suspect is affiliated to a covet or known terrorist organization which therefore makes the suspect a suitable candidate for engaging in acts of violence against the security interests of the United Kingdom (Walthelm, 2006).
The July 7, 2005 attacks in London spurred former Prime Minister Tony Blair to come out with the so-called “comprehensive framework for action in dealing with the terrorist threat in Britain.” The Prime Minister’s framework included immediate expulsion or deportation of suspects to under well arranged diplomatic actions even if that includes deporting the suspect to countries that have a reputation for torture. It also brought in the unilateral denial of asylum status to applicants with links to terrorist organizations whilst also broadening the scope of deportation justifications. Another statute that came in response to the September 11, 2001 attacks is the Immigration, Asylum and Nationality Act 2006. Under Section 55 of this law the Secretary of State is mandated with the authority to present a certificate that opposes the right of an asylum applicant for protection under the Refugee Convention of 1951, citing national security concerns as a justification.
Returning to the specifics under the current state of legislations that criminalise material support to terrorist organizations, the Kadi and Al-Barakat4 joint cases that was brought before the European Court of Justice on the specifics of the application of the United Nations sponsored sanctions against individuals with links to Al-Qaeda, Osama Bin Laden and the Taliban serves as yet another loose end in the debate about the sticky points in criminalizing material support to terrorist organizations citing how it is interpreted and applied under Terrorism Act 2000. Section 12 of the Act provides a list of what to look out for under the material support for terrorist provision; contrary to expectation it has sparked tremendous debate and several cases have been brought before courts in the United Kingdom, specifically on the real aspects of what “support” stands represents.
Another notable case is the Bank Mellat litigation on the legalities of sanctions imposed on an Iranian own bank for its support for the Islamic Republics controversial nuclear programme. The HM Treasury v M and Others case is yet another landmark case in which the European Court of Justice ruled against the withdrawal of social security benefits to the kinsmen of people with known connections to the Al-Qaeda terrorist organization. Prior to the European Court of Justice’s ruling the United Kingdom’s court of Appeal and High Court had previously upheld the ruling to withdraw such services to family members of people with links to terror groups.
A cardinal argument put forward by the HM Treasury is the pursuit of the strict application of the underpinning Regulation stipulated under terrorism statutes in the United Kingdom. Like the European Court of Justice, the British House of Lords disagreed with any attempt to withheld social security benefits to family members of individuals with links to terror groups.
The ruling in the HM Treasury v M and others has set in motion an avalanche of debates as to what “support” for terror group(s) really means. It is a question that will engage law makers and law enforcers for the foreseeable future. After all, terrorist organizations are a complex network of individuals even lately with franchises located in multiple places with simultaneous, complementary and even diffused operational codes, therefore a statute as ambiguous as this current one leaves questions an unanswered whilst the real threat seems to be enjoying a vacation. Within the scope of this flaw is a repugnant consequence of adversely changing the course of migration and all the benefits that comes with it.
It is against this background that this study seeks to delve into the contending dynamics in the United Kingdom’s counter-terrorism legislations enacted since 2001 either as a direct response to the attacks in the United States or in pursuit of its own national security agenda using the July 7, 2005 attacks in London as its reference point. As seen in the preceding paragraph some provisions in the broad array of legislations enacted since 2001 have some sticky points inherent in them with phenomenal ramifications on the state of mobility and migration within the United Kingdom. To achieve this task, the paper will be divided into three major interconnected sections. The first part is the introductory phase that will initiate and discuss the relevance of the topic to our contemporary body of knowledge and policy dimensions. This will be followed by the second section involving a discussion of the theoretical aspects of the topic and an accompanying review of the available literature on the subject matter. Doing so will rightfully place the study within the main perspective to guard against veering off the central thesis of the study. The third part will essentially be the analytical aspect of the key issues identified and discussed in the preceding two sections. It will reflect the ramifications of the counter-terrorism legislations in the United Kingdom on policy matters followed by the concluding remarks.
Arguably, the United Kingdom has a long standing history of confronting with terrorist activities citing the British government’s years of combative engagement with the Irish Republican Army as a case in point, makes the choice of the United Kingdom as the focus of this study ideal because of the ability to comparatively assess the historical and contemporary relevance of anti-terror legislations.
The United Kingdom has a history of enactment of legislations geared at combating violent extremism and other related activities of terror thanks to the bloody civil war in Northern Ireland that lasted for several decades. The Irish Republican Army resorted to activities of terror and massive sabotage against the British government during and after the bloody conflict, a sad development that called for the enactment of strict anti-terror legislations to punish and discourage violent extremism or terrorism as it is widely used in many jurisdictions. In the light of the scale of the damage being meted out by the dissident elements in Northern Ireland, the British parliament responded with the enactment of a number of legislations spanning a period of 1974 to 1989 and these legislations were dubbed the “Prevention of Terrorism Acts,” after a year years the diffuse set of anti-terror laws were consolidated into the Emergency Preventive Acts 1978. Viewed holistically, the Emergency Preventive Acts served as a legislation that gave enormous powers to the government such as arrests and detention; withdrawal of licenses; search and seizure and what have you.
Indeed, even though history is vitally relevant to understanding current and sometimes future events, under the current dispensation it is not adequately resourced to answer all the questions posed by the anti-terror campaigns of our day and age. By this singular fact, attention will be centered on the scope of the United Kingdom’s legal disposition since 2001, a year that strategically altered the events of history in not just the United Kingdom alone but the world as a whole.
Additionally, the United Kingdom is home to millions of migrants from different parts of the world. Migration has therefore become a living reality in this country; this notwithstanding recent developments have given reason to tighten the screws on migration using anti-terror legislations thus opening the door to a whole legion of related questions about migration and its long term possible implications under current British anti-terrorism legislations. Recent anti-terror policies are increasingly tilted towards the direction of aliens which certainly has considerable ramifications to migration at the end of the day. It also has the unintended consequences of straying into the domain of human rights practice within the bigger picture of international law. Clearly, there is an interconnected network of factors at play here.
Theoretical and Literature Review
Thanks to globalization migration has become a living reality in our world today especially given that the global sociopolitical architecture witnessed a rapid dissolution as the twentieth century drew to a close living in its wake shrinking and in some cases dismantling of national borders (See Hayter 2003; Sassen 1996; Castles 2006). Be that as it may a combination of domestic political factors, national security concerns5 and to a limited extent extreme nationalist sentiments are working to stifle immigration especially in some of the traditional migration destinations such as the United Kingdom.
According to Hollifield (2006), economic migrants constitute the greatest stream of migration from poor countries in the global south to richer countries in the north. A paradox of this era of unbridled globalization is the rapidity with which capital resources are extremely mobile across geographical borders yet the same cannot be said about human mobility across regions (Castels, 2006). Changes in immigration legislations in rich countries such as the United Kingdom are especially to be faulted for this sudden change in events. It is not exclusively spread across all aspects of immigrant questions safe for what Miller and Castles (2003) have observed that refugees and asylum seekers, irregular and illegal immigrants bare the severest brunt of strict immigration legislations that have counter-terrorism as their defining goal.
Notwithstanding the fact that new legislations are being hurled at the face of migrants such as anti-terror statutes a basic historical fact proves that migration has always been a factor of the human development evolution over the years (See Castles and Miller 2003 for a presentation of the different phases of international migration especially in the twentieth century. Undeniably, the migration process has not always been in hegemony because the trend is dynamically flowing from different facets. For instance there have been moments in the history of the cycle that migration destination countries had to endlessly battle with surging numbers of irregular immigrants and its attendant consequences. Castles and Miller (2003) say that tighten immigration legislations to guard against the blatant abuse of the system is in conformity with the inherent desire of countries to uphold their sovereignty and all institutions of state that sustains their democracies.
Recent sophistication arising from increasing threats posed by terrorist have given policy makers in destination countries plenty of reasons to label irregular migrants as vital breeding grounds for national security threats, this is according to Koser (2005). But Schoenholtz (2003) doesn’t seem to agree with this notion entirely except to at some point concede that they are purely factors of accidents in history particularly caught up in the crossfire of the global campaign to purge terrorism (See Grant 2005 also). Tazreiter (2004) came out with interesting insights in a bid to explain some of the underpinning factors that have given rise to changes in immigration policies; one of the findings faults the increasing prevalence of illegal migrants into rich countries as a reason to tighten the screws rather than flanging their borders widely open, taking cognizance of the fact that many asylum seekers and refugees have very questionable backgrounds in some extreme cases backgrounds that cannot even be established.
Somerville (2007) has chosen to decipher how migration has become a subject of attention for criminal law. According to him, economic wellbeing can never be extricated from migration at any rate, yet increasingly for instance asylum legislations in the United Kingdom and even many other European countries such as Germany are set in a manner that will give premium to the need to gauge an asylum application more from the security perspective thus making economic factors secondary or even inadmissible. Like Somerville, Richmond (20002) has a hard time delink both security and economic factors as part of the process of consideration of an asylum application. In any case economic wellbeing constitutes yet another form of human security that should be desired with alacrity and rapidity. Steadily, the criminalization of irregulars is a reflection of an overt policy intention desired to interfere with migration under the guise of national security threat be it real or perceived.
There is so far no universally accepted definition of what the term terrorism means largely because of what I see as a leeway in the escapist aphorism that says that “one man’s terrorist is another man’s freedom fighter.” However within the scope of this study, focus will be placed on what the government of the United Kingdom considers to be terrorism in other words by using the definition presented by the government of Britain then the analysis will be placed in its proper context. According to Section 20 of the Prevention of Terrorism Act 1989 terrorism involves the “terrorism” means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear.”
Prior to the 2000 review of anti-terror laws in the United Kingdom, most of the counter-terrorism legislations were crafted taking into consideration domestic factors in Northern Ireland but succeeding legislative reviews and reforms due to changing national security concerns the definition, application and interpretation of this definition has been stretched to cover both domestic and international terrorism combat. It is also worth noting that unlike the Prevention of Terrorism Act 1989, the Emergency Preventive Act 1996 is more leaning towards addressing the terror threats posed and carried out in terror institutions in Northern Ireland.
Preceding the legislative review of statutes of terrorism the government of the United Kingdom in 1996 commissioned Lord Lloyd of Berwick to critically oversee the review process, it therefore means that current legislations on terrorism in the United Kingdom cannot be treated in isolation to the Lord Lloyd buildup process. In his famous response to the question of the intent of the Prevention of Terrorism Act, he is quoted as saying:
I can well understand why when the original Prevention of Terrorism Act was passed in 1974 it was thought sensible to exclude, in effect, all forms of terrorism other than Irish terrorism. The situation was one of extreme urgency. Irish terrorism presented a grave threat on the mainland. The threat from international terrorism was modest in comparison, and the threat from non-Irish domestic terrorism was non-existent.
Up until 1984 policy makers in the United Kingdom still did not consider domestic threat as a source of mortal danger largely because of the policy of containment that was targeted at the dissident forces in Ireland, under an excused assumption that almost every terror act emanated from Northern Ireland. Many expressed misgivings about the potential danger posed by extending the scope of the powers of the Act backed by the genuine fear that doing that may provide an avenue for abuse of the statute. For whatever reason pundits in London are more convinced that the threat posed to national security is more from outside rather than homegrown, but recent events have proven that national security threat are mutually exclusive therefore the need for re-orientation of policy responses.
With all intends and purposes the definition for terrorism provided by the government of the United Kingdom is far from being tact and concise in conceptualizing the phenomenon of terrorism. In later sections of this study it will be seen that the definition loosely lumps together a wider aggregate of offences that vary in magnitude and rapidity. Increasingly, the reasons for engaging in acts of terror are stretching beyond sensational political and religious extremism—there have been reported incidents of perpetrators resorting to violence in pursuit of their anarchist aspirations. Conscious of this fluidity in the phenomenon of terrorism, the United States government has coined four different definitions in an attempt to address all the facets of this complex phenomenon; the definitions offered are based on purpose for which the act of terror is committed. One of such definitions is “the use of serious violence against persons or property, or the threat to use such violence, to intimidate or coerce a government, the public or any section of the public, in order to promote political, social or ideological objectives”.
The United Kingdom has also had to deal with acts of terrorism coming from animal rights groups, nationalist elements from Scotland and Wales. Prior to 2001 these groups in addition to the usual threat from the Irish Republican Army have been the main sources of homegrown terror reported in the United Kingdom. There are several reasons why groups and individuals carry out terror against civilian targets and public institutions, this notwithstanding some of the main desired impact include inflicting a psychological stir on the target group one in a manner that will serve as a prolonged symbol of agitation. Experts have also observed that at any rate terror groups always want to strike very wide and sensitive targets with a such a severity that their message will be vividly communicated (Grice, 2005).
An immediate consequence of terrorist strikes is widespread panic that can influence public opinion and sometimes compelling national governments to act in ways they would otherwise have not (Antiy, 1999). On the other side of the equation are governments such as that of the United Kingdom and the United States that have always maintained a strong policy of non-compliance to terrorist demands. In other words they maintain an avowed policy of never kowtowing to the demands of terrorists in any way if that even includes engaging in negotiations that can possible trigger the need for making compromises (Grice, 2005).
Some have been quick to say that terrorism is yet another form of advocacy that seeks to inspire changes. It differs from conventional advocacy practices in its violent posture and in many cases so desperate is the need for change that violence arguably becomes the only legitimate resort to achieving such an end. In pursuing this change agenda, often times there is complete disregard for the human casualties that comes about as a direct consequence of violence.
According to (Hudson, 2002), targets of terrorist attacks such as civilians are regarded by perpetrators of violence as suitable instruments that potent sources of driving home a strident message, whilst in some cases are seen as fitting into the knitting concept of the desired goals of the terrorist through unleashing of mass suffering and pain in fulfillment of the radical views that the terrorist stands for. The radical approach to addressing matters of cause has attracted the negative label placed on terrorist. It has become a matter of convenience rather than principle to use the label as a representation of renouncing violence and all that is associated with it.
Paradoxically those brought under the negative tag of terrorism hardly accept the tag of terrorism; they find it appropriate to be identified by the cause they represent such as freedom fighters or revolutionarists. For instance, Hamas the political authority in the Gaza strip are widely labeled as a terrorist organization where as within its ranks and sympathizers they are viewed as freedom fighters resisting the Israeli occupation of Palestine. In Afghanistan and Pakistan terror groups with links to Al-Qaeda and the Taliban are called “mujahiudeens” the Arabic word for soldiers or warriors (Saed, 2000).
On the domestic front, radical elements within the Scottish nationalist movements have engaged in multiple acts of violence in a stream and manner that in many ways fits into the definition of terrorism provided in the preceding paragraph. Within this scope whilst law enforcement agents and institutions are branding the nationalist groups terrorist they on the other hand view themselves with a sense of pride and satisfaction stemming from an awareness that they represent a worthy cause that must be achieved at all cost.
The move towards Revising British Anti-terrorism Legislation
menon is so diffuse and sparsely touching on several issues at the same time. Similarly it has complicated the process of coining a tentative definition of what constitutes terrorism in the most apparent sense of the word. Going by this, it also evident that the level, sophistication and source of threats to the national security interests of the United Kingdom is in a pool of dynamism. To be in tandem with the existing security realities of our day and age; stated differently if criminal violent activities stretch beyond the legislative framework in vogue it is only natural that the relevant reviews are put in place to put the fight on a higher pedestal.
Conscious of these realities, the government of the United Kingdom charged Lord Lloyd with the mandate to oversee the quest towards review of counter-terrorism statutes in a manner that is consistent with the challenges of the twenty first century and the lessons coming out of it. Indeed, Lord Lloyd was quick to point out that the review does not necessarily entail an entire overhaul of all statutes on the contrary a specific charge to maintain those that are achieving optimum impact in the counter-terrorism process whilst looking into for instance the grey areas of legislative codes that are not up to par with external threats as he personally admitted as the most lethal source of threat to the democratic institutions of the United Kingdom (Mosie, 1998). Rights groups, nevertheless have raised red flags about the inclined attempt by current legislations to downplay the rights of alleged terrorists whilst seeking to uphold and safeguard the rights of alleged common law criminals.
After the 2000 review, the government of the United Kingdom in its definition of terrorism has among other things stated in its Terrorism Act that the following highlights of terrorism will become the focus of the definition and application of current statutes:
Terrorism is therefore the use or threat, for the purpose of advancing a religious, political or ideological cause, of which-
There is a high level of violence targeting people or infrastructure;
Puts the life of an individual or group of people under danger;
Puts the health and safety of members of the public at extreme risk.
Under this clause the actions being referred to in the Act incorporates both those taken inside and outside the boundaries of the United Kingdom. Likewise mentioning person or property also in the same breadth places no limit on the location of the action.
As was identified by the Lord Lloyd committee, hitherto the question of proscription remained scattered between the Prevention of Terrorism Act and the Emergency Prevention Act, thus undermining effectiveness in proscription largely due to problems arising from duplication. The post 2000 Terrorism Act has however been graciously able to harmonious and come out with a common proscription regime that is applicable uniformly. For good reasons, the Act has come to terms with the fact that the concept of terrorism is persistently evolving and re-inventing itself thus making it imperative to shift gears in consonance with circumstances that emerge. The Act therefore has an inbuilt leverage to extend the scope of proscription to be able to proscribe any organization either at home or abroad with links to terror—it also covers any institution that has direct or indirect links to violence in Northern Ireland.
The Act currently has a list of the organizations proscribed under current United Kingdom anti-terror legislation. As required the Secretary of State has the right under the proscription regime to add or remove any organization on the list of proscribed organizations, meanwhile approval by both Houses of Parliament is required and the onus rests on the Secretary of State to be able to convince both Houses that a candidate organization for proscription is engaged in activities of terror or sympathetic to terrorist ideologies. To make a strong case clause 3(5) of the Act lays out the blueprint required to prove an organizations complicit state with terrorism. They are:
If the organization carries out a terror attack or participates in it at any level;
Sympathizing, promotion and encouragement of terrorism;
Prepares to engage in terrorism.
Should a proscribed organization feel that it has been proscribed based on unjustifiable reasons then the avenue for seeking redress that will lead to the organization being taken off the list has been clearly spelt out the fourth and sixth clauses of the Act. Clause four states the process of applying to the Secretary of State to get a proscription quashed. If an application for nullification of a proscription is rejected by the Secretary of State then Clause five provides the processes to be followed in initiating an appeal to the Organisations Appeal Commission (Wilfried, 1999).
For justifiable reasons the United Kingdom has gained repute amongst industriliased countries for its historical tough stance on immigration. According to Somerville (2007) the bulk of the United Kingdom’s immigration policies over the years have been constructed on the principle of rigid applicable procedures and guidelines to check its abuse by migrants from whatever source be they refugees, asylum seekers or economic migrants. Thanks to these rigid immigration policies the United Kingdom for the greater part of the twentieth century maintained a very minimal immigrant inflow in relation to other industrialized countries (Pratt, 2005; Hansen 2000).
With the shifting trend of international labour requirements the United Kingdom like other developed countries came to terms with the significant role that migrant labour plays in the development of an economy. In recognition of this, the rigid migration policies were steadily being loosened to make way to accommodate for the huge expert labor pool vacuum in the economy of the United Kingdom (Somerville, 2007). Caution must be taken against making a blanket conclusion that the United Kingdom has completely abandoned its rigid immigration policies in favor of liberal ones; reform has been crafted in such a way that some aggressive components of the immigration system has been maintained either in part or full. An often cited justification comes on the heels of the September 11, 2010 attack and the July 7, 2005 attacks on British soil.
A fair assessment of current British migration laws is the understanding that migration and security have steadily become Siamese factors underpinning the migration discourse in London. National governments in the United Kingdom have viewed the attacks carried out by terror organizations as an affront scorn for the capacity of the state to provide and guarantee its security at all levels as a consequence policy makers have been driven to rise up to respond with a neorealist approach to administering the business of statehood; a neorealist7 political philosophical perspective to addressing security within a milieu of democracy without comprising age-old tenets of democratic values (Paul & Ripsman, 2004). Despite the best intentions concerns and red flags have been raised about the fact that in the pursuit of security goals democratic tenets have had to be sacrificed on a number of instances.
It is in the light of these developments that security and migration have become a major part of the menu of western politics in our day and age. If the continuous existence of the state is threatened by external forces then there is every reason to come to terms with these forms of threat which certainly goes to say that migration will naturally be the first point of call thus explaining the posture of not just the government of the United Kingdom but increasingly other western states (Bourbeau 2006).
Bilgin (2003) has maintained that the efficacy of neorealist security arrangements found faith during the Cold War period and for this reason many were easily made to believe that with the demise of the Cold War a strategic shift of in security threats were in the making. In contrast the emergence of terrorism as a security threat shares striking similarities with some of the challenges that came with the Cold War—take the fact that terrorism campaigns are planned and executed by non-state actors with instances of state sponsorship being reported. Even in the midst of all these assertions, it would be prudent to conceptualize the defining limits of what constitutes human security if it really has to be pursued. Suffice to cite Kay (2006) as he maintains that human security should emanate from the guarantee and upholding of the rights of people under a democratic system that safeguards the institutions that protects these rights accordingly.
A closer look at the immigration policy of the United Kingdom certainly reveals two sides of a discourse that unfortunately has over the years been viewed from one side. This is said taking into consideration the widely proliferated notion that the United Kingdom maintains a rigid immigration policy but this is often mentioned without due consideration to the historical side of the British migration policies—policies that incidentally dominated the discourse in London through out the twentieth century (Buzan 1997; Williams 2003). It is well known that the United Kingdom has been heavy handed in its immigration policies especially towards economic migrants. Ironically, the part of the United Kingdom’s immigration discourse that receives little or no coverage at all is that in the early parts of the twentieth century the United Kingdom encouraged massive immigration through a flexible immigration policy towards economic migrants (Rudolph 2006).
Rudolph thinks that the immediate consequence of the massive labor shortage that besieged the United Kingdom arising from the immediate wreckage of the Second World War motivated the United Kingdom’s immigration policy relaxation, a view also shared by Meyers (2004). British colonies especially benefitted from the liberal immigration policies that allowed many to migrate and live in the country with people from the Caribbean coming in their drones (Meyers 2004). By the mid 1950s when migration reached its peak and changes in the United Kingdom’s foreign policy changed thanks geopolitical developments that inspired the decolonization sentiments in her territories and in some ways home grown British nationalist feelings were also reaching an all time peak explaining the discontinuity in the liberal immigration policy posture of the United Kingdom (Meyer 2004; Hatton & Wheatley, 2005).
Hansen (2002) reports that public discontent borne out of domestic nationalist sentiments in the United Kingdom in the 1950s infused immigration into the British political discourse culminating into the enactment of the Commonwealth Immigrants Act 1962. With the passage of this act the United Kingdom moved into a new era of that literally annulled “one o the most liberal immigration regimes in the world” (Hansen, 2000). Another effect of the act is that it sacrificed migration on the alter of political expediency. By and large the Act ushered in a new dispensation of policy conservatism that placed severe restrictions on immigration from the New Commonwealth and British colonies, migrant workers became muzzled by these developments in immigration legislation (Rudolph 2006).
At the crust of the immigration legislations was the British Nationality Act 1948 which turned out to provide the blueprint framework for subsequent migration legislations within the United Kingdom (Layton-Henry 2000; Joppke 1999; Hatton and Wheatley 2005). After almost four decades of application of this legislation it was replaced with the Nationality Act 1981 which among other things ushered in sweeping reforms on matters of the question of the broader dimensions of the “British identity” within the immigration discourse which essentially laid the roadmap for engaging the citizens and those considered to be outsiders (Rudolph 2006; Layton-Henry 2004). According to Hatton and Wheatley (2005) the passage of this Act was crafted with the additional aim of weeding out undesirable immigrants from the desirable ones and indeed criminal elements from taking undue advantage of the United Kingdom’s migration policies.
Its application notwithstanding was not without controversy giving that many observers considered it fundamentally discriminatory as it left a lot of room for the application of discretionary powers in the determination of immigration eligibility in the most apparent sense. Against the odds, Hansen (2003) reports that the trend of immigration during the peak period of this Act was far from robust since most migrant sources were becoming increasingly frustrated by the ruthlessness of the United Kingdom towards immigration. Anger about the British conservative immigration policies informed the ruling of the European Court of Justice declaring the British Act as sorely discriminatory. Domestic proponents of the Act insisted that the government maintained a fair objective of clearing fictitious claims for asylum from the legitimate ones, as it were to shield the system from excesses and abuse saying at the end of the day legitimate claimants would be able to sail through (Meyers, 2004).
Unbowed the government of the United Kingdom continued its campaign of stiffening its immigration legislations with the enactment of further stringent laws such as the Asylum and Immigration Appeals Act 1993. With the passage of this new legislation asylum seekers were given the right to be able to file an in-country appeal for asylum should they be rejected upon a first application attempt (AIAC 1993). Far from being a consistent policy the Act further strengthened the power of the government to expel or deny an applicant the right to appeal an asylum decision granted such an applicant is considered a source of great threat to the national security of the United Kingdom.
Rising from the low peak of asylum applications in the 1970s into the middle part of the 1980s owing to the heavy handedness approach of the government’s immigration policies; the 1990s witnessed a surge again in asylum applications even though the government continued to deny the majority of applicants (Hansen 2000). Clearly, the government of the United Kingdom maintained its tough immigration policies for the most part of the period of the 1990s running into the twenty first century to the chagrin of many observers. For instance, the passage of the Nationality, Immigration and Asylum Act 2002 created another set of biting teeth to the immigration legislations by stretching the acts considered criminally liable under immigration statutes and can thus warrant penalties thereof (See the Nationality, Immigration and Asylum Act 2002).
Compounding the already load of difficulties the load of British immigration legislations have placed on asylum seekers and other migrants was the 2004 enactment of the Asylum and Immigration Act 2004. As part of the goal of meeting the lag in its labor market, a challenge that is not exclusively British but one that most industrialized economies are grappling with, the British government in 2006 came out with a system that allowed for a point-based inflow of skilled migrant workers to specific sectors of the labor market (Odmalm, 2006). Indicators of this policy shift are pointing that the government is gradually though some may say rather grudgingly (Hansen, 2003) to consider giving additional consideration to economic migration. It its worth acknowledging that the point-based migration policy is far from being an open ticket to all economic migrants taking cognizance of the fact the policy targets specific forces within the labor market.
Challenges of Contemporary Security Arrangements
Superficially one may be forgiven to believe that terrorism is a by-product of our rapidly evolving global arrangement. A closer examination however reveals that for the most part of the history of the United Kingdom as a nation state it has had to battle with radical elements with deep links to terrorism. Terrorism activities especially those of the Irish Republican has already been discussed in the previous chapters, for this reason the analytical component of this section will be centered on the prime relational string that ties the current state of immigration legislations and policies in the United Kingdom against the actual impact it has on migrant workers there. It should be remembered that the background for the litmus test of this section is structurally in place because of the experience of the British with both the phenomena of terrorism and migration. On this occasion however, a little addition is highlighted by the shifting grounds that has engulfed both phenomena since the entry of the twenty first century.
Most western countries like the United Kingdom have come to terms with the fact that the global security has entered a phase of trying times and for that matter it has become imperative to respond to the trials in ways that call for adequate justification of human development. A poignant grey spot in the pursuit of achieving the renewed global security interest stands in stark dilemmatic conflict with the ability to be able to tread cautiously in a manner that guarantees both the pursuit of national or global security whilst towing similar lines that categorically upholds the democratic tenets of human rights 9and good governance (Fekete, 2006).
It will be recalled that in the preceding section national security threats viewed from the neorealist perspective essentially premised the gravity of lethal threats to domestic public safety were of foreign origin for this reason migration becomes a good starting point to address long term domestic national security interests. Security and intelligence agencies have stepped up the gathering of information and in some extreme cases profiling of travelers coming and going out of their national boarders (Hensen, 2003). Information sharing between inter-security agencies has become an integral part of the campaign to shield domestic civilians from undesirable elements that constitute security threats.
Pursuit of national or homeland security by itself is a desirable good entailed in the social contract between citizens and their governments. Yet the recent trend in the pursuit of this through the neorealist lens which has specifically brought migrants under the microscope has raised concerns and red flags about civil liberties more so those that employ draconian measures (Williams, 2008; Van der Veen, 2007). Security pundits in London just like their compatriots in Washington are convinced that in the light of the enormity of the threat they are confronted with dealing with terrorism within the framework of the criminal law regime would amount to undercutting the real issues at stake. Bonner (2007) says it becomes the motivation behind the policy of the government of the United Kingdom to make fetish human rights in its place stand in for often very questionable radical actions.
Furthermore Bonner (2007) contends that laying the burden on the doorstep of the British government alone will not be very fair in its apparent sense. This is said taking into consideration that the difficulty arising from terrorism and the attendant legislation to combat it are based on both cause and effect factors. Prior to the change in security posture in the 1990s, British counter-terrorism legislations were focused on domestic radical elements, but the painful realities of the rising trends of attacks against British citizens and interests not just within in Britain alone by suspects from Middle Eastern locations such as Palestine and Iraq served as the trigger for legislative responses.
Much of what has become the baseline for terrorism conceptualizing has been borne out of the Terrorism Act 2000. The Act as it is being used in anti-terrorism policies has been extended beyond the traditional periphery that talks about “the use of violence for political ends and involves the use of violence for purposes of putting the public or a section of the public in fear” (Emergency Provisions Act 1973). Current definitions following September 11, 2001 maintain a good portion of this definition yet it also brings to focus the scale of the modern threat to the extend that it has provisions that seeks to strongly highlight political, ideological and religious motivations for engaging in pre-meditated violence.
In other words the 2000 Act has among other things served as a illuminating baseline for not just defining the terrorism in its contemporary context but also effectively drawing the intersecting linkages that involves acts of terror emanating from Northern Ireland; those homegrown sources and indeed oversees sources some of which have developed franchises to diversify their operations (See Terrorism Act 2000). Today’s approach to terrorism activities and threats against the United Kingdom is much of a political issue as it is a criminal challenge. Therefore the government’s policy is designed to engage terrorism from a multi-faceted approach giving that the phenomenon is also very multidimensional. Policy makers and security experts have in recent times become actively interested in tracking and dismantling the sources of financial and logistical backing that sustains the activities of terrorist organizations. Incidentally, the 2000 Act does provide leveraging legislative powers to the state to engage in such a campaign.
Proscription of organizations under the Terrorism Act 2000 creates the opportunity for a grey spot in the manner in which authorities can lean on to specifically make a particular immigrant group needless targets for scrutiny and the application of the unbridled powers that the Act has mandated to the state in dealing with alleged activities of terror. It is against this background that Fekete (2004) argues that under such an aura of uncertainty the overall chances are ripe for migrants from specific or identified faiths and ethnicity to feel insecure owing to the fear of unwelcomed surveillance that could be targeted at them not to even talk about profiling and stigmatization as other related consequences for migrant workers in the wake of these laws.
Some of the unbridled powers enshrined in the Act calls for the arrest, detention and deportation of immigrants that are considered a source of security threat to the nation. Steadily the legislative environment has worked out overtly or covertly to parallel immigration and security as defining paradigm of the current dispensation of migrant inflow and stay in the United Kingdom. An immigrant suspected of links to terrorism according to the provisions of the Act, can be arrested without a warrant spanning a period of twenty eight days backed by a policy of rigorous proactive searching and arrest of suspects. Searches can be carried out by security personnel at any time at any premise without the need to do so under the authority of a warrant (Terrorism Act 2000).
Knowing that the financial stream of terrorism is one of the nerve centers of keeping terrorist organizations running the government of the United Kingdom deemed it fit to muzzle that aspect of operations consequently resulting in enactment of the Security Act 2001 which sought among other things to come out with measures that will specifically target and dismantle the financing chain of terrorism. Notwithstanding the provisions of the legislation included the right to access, store and disseminate information between relevant agencies. Sweeping powers were further entrusted to the Metropolitan Police to enhance their proactive ability to track and apprehend suspected terrorists before they (Brouwer, 2003).
According to Somerville (2007) of all the counter-terrorism legislations enacted following the September 11 attacks in New York, the Security Act is by far the most blatant legislations that vividly seeks to make a clear linkage between terrorism and immigration. It is one of several legislations that have come under attack for its extreme view on the phenomenon of terrorism and migration as a matter of principle. Take for instance the provision under the legislation that mandates the Secretary of State to issue a so-called certificate to anyone living in the United Kingdom that is considered a threat to the national security interests of the country. The person may be labeled a national security threat on the sheer grounds of suspicion and under the certification may be detained indefinitely without a trial (ATCSA 2001).
Brouwer (2003) reports that under exceptional circumstances where the grounds for the issuance of a certification cease to become valid the Secretary of State backed by the discretionary powers of the Security Act 2001 may proceed to issue a new certificate that technically still keeps the individual in question subjugated to the depressing shackles of detention without trial and in some cases expulsion out of the United Kingdom depending on other related legal arrangements. Should an asylum seeker be certified by the Secretary of State as a security threat to the nation, he or she by statutory arrangements becomes exempted from the benefits of a substantive determination of their right to claim a case for asylum. In such a case an applicant risks being deported to his or native country should the claim to asylum be rejected upfront. The difficulty with this arrangement is that it technically violates the United Nations Convention and Protocol Relating to the Status of Refugees which stipulates that states that no contracting State any state part of the Convention shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
With these international legal obligations that the United Kingdom is a signatory to serving as the background blended by its desire to keep its internal bodies secured from the reach of organizations of terror, the country is set on a path way of dilemma torn between adhering to international legal obligations or the pursuit of its neorealist agenda. Going by the motivations of their neorealist security philosophy, policy makers in London are move convince than ever that every threat to national security is instigated and executed by migrants therefore making it convenient to lower the bar of legal status and rights of suspects of terror even if international law frowns on their actions (Chirnos, 2005).
In a related sense detained immigrants have a leeway through the Special Immigration Appeals Commission (SIAC) to resort to as a medium of seeking review under situations where the detainee feels he or she has a justifiable basis upon which to challenge whatever charges of wrongdoing brought against him or her by the British government. A hamstring to the utilization of the Special Immigration Appeals Commission comes from its ability to consider admissible any piece of evidence that is hidden from the detainee and his legal representative(s). Secret evidences against a detainee can however be brought to the notice of a so-called “special advocate.” A special advocate by legislation does not necessarily act in the interest of the detainee and therefore has no form of contact with the detainee faced with the accusation. Under the jurisprudence of the British common law tradition secret evidence is considered completely against the spirit of fair trial, bearing in mind that one of the cardinal standards of contemporary justice is the right to fair trial (Bonner, 2007).
An important caveat to this provision is however acknowledged and permitted under international obligations such as the European Convention on Human Rights, which as part of several exemptions to the justification of a member state’s decision to renege its commitment to international law. For example during a state of emergency or war time a signatory state that feels threatened security wise is absolved from culpability under Article 15 of the Convention if the state in question uses draconian laws that violate standard international human rights law. Chirinos (2005) asserts that this is the very justification that the government of the United Kingdom uses to insulate itself from public outcry concerning its handling of the rights of detainees brought under terrorist legislations.
The Prevention of Terrorism Act 2005 was enacted by the government as a way of soothing the barrage of criticism that it received from public interest groups and other human rights defenders both at home and abroad. It main aim is to address the aspects of the legislations that justified the arbitrary arrests and detention without trials of suspected terrorists (See Forcese 2008; Chirinos 2005). The operations of the Prevention of Terrorism Act hinges on two principal control orders designed to ensure effective implementation within the milieu of respect for human rights of detainees. It addresses two categories of derogating and non-derogating charges. With the former having an effect of six months conditional to extension without necessarily incorporating the factor of detention; where as the latter though also having an effect spanning six months it does incorporate aspects of detention on various levels (PTA 2005, S 2(4)(a)).
Naturally, the enactment of the Prevention of Terrorism Act and its subsequent reviews through the renewed control orders were intended at least by the government to stay put on its supposed well intentioned drive to weed out terror elements and their organizations within and outside the United Kingdom. Ironically the Act has not witnessed much by way of its application on the contrary application has been very limited giving that any attempt to set the Act on gear would inadvertently invite a stern judicial interrogation, one which Bonner (2007) thinks the government is reluctant to engage in. Immigration legislations have become the most acceptable medium by which non-British citizens have been arrested, detained and deported citing national security as the premise for ejection. Immigration legislations are so far not subject to stern judicial reviews.
By convention the security control orders in the Act are designed to be applied to all suspects irrespective of their nationality. In other words, the magnitude of application of a control regime will not be based on whether a suspect or a detainee is of British citizenship or not. Be that as it may, recent surveys have revealed that notwithstanding the noble intentions of the Act, a significant portion of the application of the control orders have been tilted towards non-British nationals more than it has to citizens of the United Kingdom; even in cases where it did apply to citizens the survey according to SIvanandan (2006) is heavily tilted against British citizens of minority ethnic origins. In the light of these findings, the raging questions reappear again about whether or not migration is the scapegoat of security consciousness within the United Kingdom.
Suffice to acknowledge that in comparison to the ATCSA, the Prevention of Terrorism Act is not tentatively alluding to immigration as a target source, yet it is incapable of absolving itself from the consequences it has implicitly contributed to the raging debate of anti-terrorism legislations and security consciousness that has steadily evolved into a process of making migration a topical national security issue.
Implications of Anti-Terror Legislations from a Human Rights Perspective
Indeed, by many accounts the United Kingdom’s anti-terrorism legislations have come under criticism from a host of different quarters. Of particular interest to many observers is the Section 55 of the Immigration, Asylum and Nationality Act 2006 that empowers the Secretary of State with the right and ability to present a certificate that technically bars an appellant from enjoying either one or several rights enshrined in the international Refugee Convention. The reason for such a certificate could range from criminal background to sheer concerns of national security as discussed earlier in this study. A latent difficulty with this provision is that the government in empowering the Secretary of State through this legislation has failed to come out with corresponding safeguard that will ensure that the application of the law is shielded from abuse and excesses.
A blanket banner of the right to deny an asylum applicant the protection under international Refugee Convention has been strengthened by the provisions of the sections in the act that allows for a broad and unlimited scope for the application of the exclusion clauses of the convention is strategically benefiting the government of the United Kingdom unfairly to the detriment of the cause of justice for applicants.
Furthermore, applications of these processes can exploit loopholes to make exclusions on issues such as the involvement of an individual or group of people in political opposition to a system such that without a capricious motivation may be defined to fit into the strata of terrorism. Should that be the case the legal justification for denial will be fully brought to play against such an individual or group. In the most extreme cases, the application of the Act stands to severely affect individuals or groups that carry out their political opposition activities through armed resistance and other violent forms of engagement. Classical examples could be applied to individuals with affiliations to the armed wing of the Palestinian Liberation Organization (PLO) and the militant wing of the African National Congress (ANC) during its days of guerrilla attacks against the apartheid government of South Africa. It stands to reason that given the scope of the Act members of these groups can be denied asylum protection irrespective of the cause they stand for.
A recent survey designed to identify the source of most asylum seekers within the United Kingdom revealed that a significant chunk of applicants tend to be victims of state terrorism or state sponsored terrorism targeting them for reasons that are often very political in nature. There are members of the Movement for Democratic Change (MDC) of Zimbabwe that are fleeing the hardliner crackdown on dissent by the strong man government of Robert Mugabe’s ZANU PF party. Others are also coming from war torn state of Somalia and those fleeing sectarian violence in Iraq due to their political affiliations among many others.
As the draconian approach to human rights under a regime of security alertness does indicate, there is a growing pool discomfort within the ranks of the government of the United Kingdom with regards to its continues respect for Article 5(1)(f) the European Convention on Human Rights. Until the government is able to meet the clear exceptional clauses mandating it to observe these legislations it remains incumbent to adhere to them unequivocally under international law. A plausible way to get around this clause requires the declaration of a state of emergency; yet under the prevailing circumstances nothing of that sort is in the making neither was it ever done. Article 15 of the Convention allows for this step granted there is enough justification to tow such a line.
A clear form of justification should be built on the sense of an imminent source of threat to the security of the British public for which the failure to declare an emergency would result in dire consequences. Moreover, the declaration of the state of emergency should not in any way conflict with international law and treaties for which the government has ratified. So far in defending its actions the government of the United Kingdom has consistently maintained that the country faces unprecedented risks to its national security owing to the presence of foreigners or migrants on its domestic soil. Within the scope of this study, it is made clear that much of the strict anti-terrorism laws in the United Kingdom came about primarily in response to the September 11 attacks which incidentally was acknowledged by the United Nations Security Council through resolution 1373 that terrorism constitutes a threat to global security and peace for which reason all member countries of the United Nations were admonished to rise to the occasion in clamping down future terrorism attacks in any part of the world.
Viewed subjectively, the government of the United Kingdom therefore derived a basis upon which to perpetuate its arguments for the enactment of tough legislations that would by several measures target the immigration as a prime route for homegrown terrorism in the United Kingdom. The extend to which the United Kingdom feels heavily threatened remains very contentious giving that the country is not the only exclusive state within the western world to be experiencing threats and therefore a unilateral threat justification for its actions.
Apparently there is a surging gap between security and migration within the context of the highly polarized political discourse of what constitutes terrorism. For this reason a haphazard approach to dealing with the real phenomenon is inciting divided opinions with human rights advocates calling for a toning down on harsh measures against refugees and asylum seekers who are most often than not a part of the bigger picture of global migration. Exacerbating the problem is the inability to harmonize effective legislations in such a manner that ensures that legitimate migrants are not needlessly hamstringed in the quest to smoke out potential terrorists from abusing the system.
One school of thought contends that governments are racing against time in their quest to guarantee the security of their citizens and for that matter are willing to go all out thus relying on the excuse that the end justifies the means so long as the security needs are met at the end of the day. The fight against terrorism will not be helped by the broad and loose definition used to ascribe to terrorism in legal lexicons particular in response to changes in the global security landscape. Ideally, the revision of the definition in the United Kingdom will in many ways be a welcomed strand in realigning the broader goals counter-terrorism, if indeed they are well intentioned.
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