Lawyers are considering ways of extending court rulings to all on mass expulsion charter flights.
As reported on IRR News last week (‘Deportation flight goes ahead – without France’), a speedy and concerted campaign by over thirty migrant and human rights organisations led to the French immigration minister withdrawing from a joint Franco-British deportation charter flight to Kabul on 6 October. The lack of such a concerted campaign in the UK meant that the charter flight went ahead and an unknown number of rejected asylum seekers from Afghanistan were returned. Thanks to the work of individual solicitors, a temporary stay was ordered in relation to a number of individuals who were due to be removed on the flight. But as the judge granting the order complained, he did not have the power to compel the Home Office not to proceed with the flight; even though all those being removed to Afghanistan were being returned to a war zone, and thus they were all in the same boat, all he could do was to order that those who had applied to him for judicial review of their removal were not removed pending the full hearing of their application.
It’s the same every time a ‘mass expulsion’ takes place by charter flight – and the UK seems to use charter flights far more frequently than other European countries. But recent cases have revealed a shocking gap in protection. There is no provision, either in domestic or European human rights law, for a court to order a blanket ban on removals to a particular country. Some, the lucky ones, have legal representatives who work to ensure that their clients are not removed. Judges grant a temporary stay in individual cases, but frequently other potential deportees take the place of those ordered not to be removed. In the case of deportations to war zones such as Somalia, Iraq and Afghanistan, the situation faced by those on the flight and those who obtain a stay is identical. Justice Blake tried to deal with this problem in September 2009 by ‘inviting’ the Home Office to suspend the removal of Afghans on a charter flight, while ordering them not to remove the named applicants. The European Court of Human Rights had to face a similar situation in 2007 and early 2008. The Court asked the UK government to suspend removals of Tamil refused asylum seekers to Sri Lanka while it examined the evidence of deterioration in their situation for a test case – but the government refused the Court’s request. Because of this refusal, all Tamils who were threatened with removal to Sri Lanka had to apply individually, first to the High Court and then to the European Court of Human Rights, for an order staying their removal. Over the next few months, the European Court received 342 individual applications for a stay and granted them all – but there is no way of knowing how many Tamils, unrepresented or with legal representatives who were unaware of the case, were removed to a country where, as the court later found, they potentially faced a real risk of torture as Liberation Tigers of Tamil Eelam (LTTE) associates.
Immigration and human rights lawyers are thinking about ways of reducing the randomness of remedies to ensure that all those potentially affected by a Home Office policy or concession or a legal ruling or prohibition on return benefit from it, without having to bring individual applications. In other fields of law it is possible to bring representative litigation – why not here, ask practitioners.
It was also reported this week (Independent: ‘Forcing asylum-seekers to return to Iraq is “inhumane”‘) that a charter flight to Baghdad for forty refused asylum seekers would take place in the next seven days, the first deportations to that area since the war began. According to the International Federation of Iraqi Refugees, on 14 October, an Air Italy flight chartered by the Home Office, code-named ‘Operation Rangat’, took off from Stanstead carrying thirty-nine people for Iraq.
Dashty Jamal of the International Federation of Iraqi Refugees commented: ‘The government is forcing people back to a country devastated by a war it started. It is utterly inhumane and immoral. They are trying to keep their crimes secret – even the people they want to remove have not been told where they will be sent back to in Iraq or when. We call on everybody to resist these removals in any way they can.’
Related links
Event on 17.10.09: No deportations to Baghdad
Read an IRR News Story: ‘Deportation flight goes ahead – without France
There is also an important obstacle to bringing substantive medical evidence of torture of individuals detained to the attention of the courts when a detainee has been issued removal directions by charter flight. Paragraph 60.12 of UKBA’S Enforcement Guidance Manual states: “If proceedings are lodged or JR is threatened by, or on behalf of, a person who is due to be removed on a charter flight, the case must be referred to OSCU immediately. OSCU will consider whether it is appropriate to proceed with removal on a case by case basis in order to guarantee the viability of the operation. If the OSCU decides not to defer removal, the claimant or his representatives must be informed of this decision and the reasons for it in writing and must be told that removal will proceed unless an injunction is obtained.” My understanding of the current situation is that: in practise, Medico-Legal Reports detailing evidence of torture or other violence after RDs by charter have been issued are referred to UKBA’s Operational Support & Certification Unit. The OSCU’s usual refusal to accept the medical evidence as grounds for a fresh claim are dictated by spending priorities (“operational constraints”). Since detainees subject to removal by charter can no longer apply for Judicial Review of the refusal of a fresh claim (without OSCU’s permission), their only recourse is a High-Court injunction. This may be an administrative procedure with important implications for forensic evidence that we should bring to the High Court’s attention.