Assessing Damage, Urging Action
The Parliamentary Assembly of the Council of Europe recognised the human cost of
some of the measures being introduced by Member States, noting that:
“The application of expulsion measures against [long-term immigrants] seems
both disproportionate and discriminatory: disproportionate because it has lifelong consequences for the person concerned, often entailing separation from
his/her family and enforced uprooting from his/her environment, and discriminatory because the state cannot use these procedures against its own nationals
who have committed the same breach of the law”.226
2.2 National security detention pending deportation
The Panel received evidence suggesting that, otherwise lawful, residents (including
permanent residents) were detained for a prolonged period on national security
grounds pending deportation, especially in those cases where the individual cannot
be deported because of the risk of serious human rights violations in the country
of origin. This issue was extensively discussed at the Hearings in Canada and the
UK.
On security grounds, the system of Canadian “security certificates” allows for the
detention of non-citizens, without charge or trial, pending deportation.227 A security
certificate is issued by two Government Ministers stating that a permanent resident
or foreign national is inadmissible “on grounds related to security, the violation of
human or international rights, serious criminality or organised crime”. Reference was
made at the Hearing in Canada to the lack of due process rights; the lack of a clear
time-limit to the period of detention and prolonged detention as a consequence; reliance on intelligence not disclosed to the person affected; broadly defined grounds
for detention pending deportation; and a relatively low level of proof (“reasonable
suspicion”). According to the evidence submitted, there have been six Muslim men
detained for up to six years on the basis of “security certificates”.228 In February
2007, a constitutional challenge was brought by several individuals who were the
subject of “security certificates”; the Canadian Supreme Court found the regime
unconstitutional, due to its inadequate due process protections.229 The Panel heard
directly from some of those caught up in these legal conundrums, and it may help to
convey the human impact that these measures have on individuals and their families
if some detail is given about one emblematic case.
226 Council of Europe, Parliamentary Assembly, Recommendation 1504 (2001) on Non-expulsion of long-term
immigrants, adopted on 14 March 2001, para. 3. See also written submission by Human Rights Watch, EJP
European Union Hearing.
227 The scheme of security certificates has existed in various forms since 1976. The current provisions date from
the Immigration and Refugee Protection Act (IRPA), which was revised by the House of Commons shortly
before 9/11, and subsequently amended as a consequence of a ruling from the Supreme Court of Canada –
Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9, 23 February 2007.
228 See summary of the EJP Canada Hearing and oral testimonies by Adil Charkoui and Paul Copeland representing three persons subjected to “security certificate”.
229 Supreme Court of Canada, Charkaoui v. Canada, op. cit.
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