62
A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
was not necessarily directed at the United Kingdom but instead at other
nations to which it was allied.
145. In any event, the enactment of Part 4 of the 2001 Act and the power
contained therein to detain foreign nationals indeterminately without charge
was not “strictly required by the exigencies of the situation”, as the House
of Lords found. The impugned measures were not rationally connected to
the need to prevent a terrorist attack on the United Kingdom and they
involved unjustifiable discrimination on grounds of nationality. SIAC –
which saw both the closed and open material on the point – concluded that
there was ample evidence that British citizens posed a very significant
threat. There could be no grounds for holding that the fundamental right of
liberty was less important for a non-national than a national. Aliens enjoyed
a right of equal treatment outside the context of immigration and political
activity, as a matter of well-established domestic, Convention and public
international law. There were other, less intrusive, measures which could
have been used to address the threat: for example, the use of control orders
as created by the Prevention of Terrorism Act 2005; the creation of
additional criminal offences to permit for the prosecution of individuals
engaged in preparatory terrorist activity; or the lifting of the ban on the use
of material obtained by the interception of communications in criminal
proceedings.
2. The Government
146. The Government contended that States have a fundamental right
under international law to control the entry, residence and expulsion of
aliens. Clear language would be required to justify the conclusion that the
Contracting States intended through the Convention to give up their ability
to protect themselves against a risk to national security created by a nonnational. As a matter of ordinary language, “action being taken with a view
to deportation” covered the situation where a Contracting State wished to
deport an alien, actively kept that possibility under review and only
refrained from doing so because of contingent, extraneous circumstances. In
Chahal v. the United Kingdom (15 November 1996, Reports 1996-V), a
period of detention of over six years, including over three years where the
applicant could not be removed because of an interim measure requested by
the Commission, was held to be acceptable under Article 5 § 1 (f).
147. Each applicant was served a notice of intention to deport at the
same time as he was certified under the 2001 Act. The second and fourth
applicants elected to go to Morocco and France respectively, and were
allowed to leave the United Kingdom as soon as could be arranged, so no
issue could arise under Article 5 § 1 in their respect. The possibility of
deporting the other applicants was kept under active review throughout the
period of their detention. This involved monitoring the situation in their
countries of origin. Further, from the end of 2003 onwards the Government
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