Corporate Watch has released a new, 20-page briefing examining the lawfulness of the UK’s mass deportation charter flights, where private airlines are contracted to deport up to 80 refugees and migrants to a particular country at a time.
Part of a forthcoming report by Corporate Watch and Stop Deportation examining various other aspects of this controversial programme, the briefing aims to provide campaigners and legal practitioners with some arguments and tools with which to challenge the legality of these flights.
Collective expulsions and Protocol 4
The main focus of the briefing is Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits the “collective expulsion of aliens.” It starts with a discussion of the notion of collective expulsion and who it applies to, based on the ECHR’s Travaux Préparatoires and Explanatory Report. It then moves on to provide an extensive review of the European Court of Human Rights (ECtHR) case law concerning Protocol No. 4. and other related legal instruments such as Protocol No. 7 to the ECHR and Article 32 of the Refugee Convention.
Since the 1975 case of Henning Becker v. Denmark, the ECtHR has adopted a definition of the “collective expulsion of aliens” to mean “any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group.” Once it is accepted that collective expulsion should be prohibited, the main question then is to prove that an expulsion is collective, i.e. arbitrary and discriminatory, and is not the result of a “reasonable and objective examination” of the case of each of the individuals being deported.
The first successful Protocol No. 4 case in the ECtHR was the 2002 case of ?onka v. Belgium, in which the court found the Belgian government’s decision to deport a family of four, among a group of 70 Slovakian Roma, to be in breach of Articles 5(1), (2), (4) of the ECHR, Article 4 of Protocol No. 4 and Article 13 taken together with Article 4 of Protocol No. 4. Significantly, the judgement specified the “factors that may reinforce the doubt that an expulsion might be collective.” These included announcements or instructions by the authorities prior to the deportation that there would be such an operation; deportees being rounded up at the same time and served with deportation orders couched in identical terms; and deportees finding it very difficult to contact a lawyer or not having their asylum procedures completed.
Between UK and European law
The briefing discusses many other ECtHR cases that have dealt with specific aspects of mass deportations or made significant findings in this regard. However, the UK has not ratified Protocol No. 4 to the ECHR and has not incorporated some of the other European instruments relied upon in these cases, such as Article 13 of the ECHR (the right to an effective remedy), into domestic law through the Human Rights Act 1998.
Nonetheless, Section 2(1) of this Act requires the UK courts to “take into account” the ECtHR’s decisions when determining a question that has arisen in connection with a Convention right, especially when the ECtHR has “clear and constant jurisprudence” on that matter. The review provided by the briefing shows beyond doubt that the ECtHR case law on Protocol No. 4 and collective expulsion is “clear and constant” enough for UK courts to take it into account and for the UK immigration authorities to be challenged in court on this basis.
Moreover, Section 6 of the Act makes it unlawful for public authorities to act “in a way which is incompatible with a Convention right,” except when this is “the result of one or more provisions of primary legislation” or when the authority “could not have acted differently.” The source of the UK’s “special arrangements” surrounding deportation charter flights (discussed below) is a guidance manual by the UK Border Agency (UKBA), an executive body, and not a result of primary legislation (parliament). And the UKBA can obviously act differently, as it indeed does in removals on scheduled flights. It follows that the UK’s charter flights policy is arguably in breach of Article 13 of the ECHR, and therefore of Section 6 of the HRA.
As to why the UK has not ratified Protocol No. 4, the briefing traces back the UK government’s reservations to concerns over nationals of dependent territories (former colonies) entering to and remaining in the UK. In other words the reservations have nothing to do with mass expulsions. Shameful as this is, the briefing therefore suggests that the government should be pressurised to ratify the Protocol – as well as signing and ratifying Protocol No. 7 – with reservations concerning the articles it has problems with similar to those made when ratifying the International Covenant on Civil and Political Rights.
Special arrangements
But even without ratifying Protocol No. 4, the briefing examines various procedural aspects of the UK’s mass deportation charter flights that could be used to “challenge these flights more systematically.”
Section 6.1 of Chapter 60 of the UKBA’s Enforcement Instructions and Guidance manual states that “Some chartered flights may be subject to special arrangements” due to “the complexity, practicality and cost of arranging an operation.” Those who wish to legally challenge their removal by charter flight are thus required to seek a High Court injunction as a judicial review (JR) application “will not usually result in deferral of removal.”
The fact that JR applications no longer lead to an automatic deferral of removal because of the “special arrangements” surrounding charter flights - i.e. they do not have a suspensive effect - coupled with the recent cuts to legal aid introduced with the LASPO Act 2012, which have made it practically impossible for most people to seek a judicial review of their removal decision, mean that charter flight deportees are often not provided with an effective remedy within the meaning of Article 13 of the ECHR.
These restrictions on charter deportees’ access to justice are compounded by the volume and speed with which charter flight deportations are conducted, which appear to be overwhelming both solicitors and judges. This is important, given the fact that the Administrative Court plays an increasing role in deciding the substantive merits of claims in stay applications (people wishing to challenge their removal now have to obtain a Court Office reference and obtain a stay on their removal as a result of the non-suspensive policy on judicial review in charter cases).
The main reason for this is that Home Office case owners are often too overwhelmed themselves and do not have the time or incentive to make proper decisions, which is in turn a result of the policies and arrangements surrounding deportation charter flights. Many charter flight deportees are thus deprived of their fundamental rights of access to justice, effective remedy and a reasonable and objective examination of their case before their deportation.
No access to justice
In ?onka, the ECtHR identified a number of factors which “undoubtedly affected the accessibility of the remedy.” These included the inaccessibility of information on the available remedies; the inability to contact a lawyer; and not having sufficient time to challenge the deportation. This is because without such safeguards – which are covered by instruments such as Article 32 of the Refugee Convention and Protocol No. 7 to the ECHR – it can be argued that the expelling state did not provide those facing deportation with an effective remedy, as required by Article 13 of the ECHR, a remedy that must be effective in practice as well as in law and must have a suspensive effect.
The briefing argues that the “special arrangements” created by the UKBA for charter deportations do not afford those facing deportation via charter flights a realistic possibility of using the remedy, particularly the obstacles that they place on accessing adequate legal representation and the right to appeal or judicial review. Examples discussed include the vagueness of removal notices sent to people due to be deported, omitting references to previous or outstanding claims from the Factual Immigration Summaries accompanying Removal Directions and other procedures that make it very difficult for people due to be deported to contact a solicitor or complete the due legal process.
Ways forward
There is plenty of evidence that each of the five factors identified in ?onka that may reinforce the doubt that an expulsion might be collective have been repeatedly breached by charter deportations from the UK.
First, the UK government or politicians have occasionally made statements announcing a charter flight or deportation scheme to a certain country. Iraq and Sri Lanka are good examples. Secret bilateral agreements could also be seen as part of such plans or intentions, as do the operational names given to country-specific charter deportation programmes (‘Operation Ravel’ for Afghanistan, ‘Operation Majestic’ for Nigeria, etc.).
Second, migrants and refugees from a certain nationality are often detained roughly around the same time in preparation for a charter flight to that country. A cursory look at monthly detention statistics may demonstrate this more clearly. We do not (yet) have concrete evidence that immigration reporting centres and enforcement teams are sent instructions to detain a certain number of people from a certain nationality, but it is not difficult to imagine that this is the case.
Another important point in this regard is the manner in which people are detained. If someone is asked to attend a reporting centre and given the impression that this is to do with their asylum or immigration process, then this may amount to them being misled by the authorities with the sole intention of facilitating a pre-planned mass deportation operation. This is a breach of Article 5 of the ECHR, which applies to asylum seekers, refugees and overstayers.
Fourth, removal directions served on charter deportees seem to be sufficiently identical, especially if it is true that some factual summaries accompanying them have been omitting crucial aspects of the deportee’s claim. In some cases the due legal process would also not have been completed because of the operation. This is most obvious, perhaps, with the use of the so-called ‘reserves’ on charter flights, an issue that we have tackled elsewhere.
Finally, the special arrangements surrounding charter flights, together with the legal aid cuts, are making it increasingly difficult for deportees to access adequate legal representation and allow them sufficient time to challenge the decision to deport them.
Of course to use any of these arguments, one would need good, concrete evidence. But even with such evidence, until the UK has ratified Protocol No. 4, it is difficult to see how any Protocol No. 4 argument can be persuasive in UK courts, perhaps save for the relation between ECHR and HRA discussed above.
The briefing thus concludes with recommendations that legal practitioners and campaigners should collaborate more on understanding and gathering evidence on each of the above points with the aim of launching more systematic legal challenges against mass deportation charter flights from the UK.