Thursday, April 11, 2013

Human Rights: Europe's forced returnees claim abuse

Photo: Medical Justice. Handcuff injuries sustained during an attempted forced removal from the UK 

By Kristy Siegfried   Source: IRIN

JOHANNESBURG, 10 April 2013 (IRIN) - Cases of excessive force being used to remove rejected asylum seekers have been documented in a number of European countries. But with the financial crisis eroding sympathy and tolerance for asylum seekers, there has been little public or political support for measures that would provide more humane approaches to removing those reluctant to accept an asylum rejection.

According to the UN Refugee Agency (UNHCR), the forced removal of failed asylum seekers “should be undertaken in a humane manner, with full respect for human rights and dignity, and that force, should it be necessary, [should] be proportional and undertaken in a manner consistent with human rights law”.

A directive on common standards and procedures for returning irregularly staying migrants, adopted by the European Parliament in 2008, included a provision requiring that member states implement an effective system for monitoring forced returns. According to a study funded by the European Commission, by 2011, the majority of European Union countries had such a system or were in the process of implementing one.

But the systems vary widely between countries, both in terms of who does the monitoring and what they monitor.

Inconsistent oversight

For example, in the Netherlands - where incidents of excessive force being used on deportees are rare, according to the Dutch Refugee Council - an independent commission oversees the entire forced return process and guidelines are in place for the allowed use of force.

In France, monitoring only occurs during the pre-return stage or if a return attempt “fails”, either because of a last-minute legal intervention or because the pilot or crew on a commercial flight refuse to take the returnee. In the latter case, the returnee is sent back to a detention centre where one of five NGOs contracted by the home affairs ministry has a presence.

Christophe Harrison, from one of the NGOs, France Terre d’Asile, told IRIN that these returnees regularly report excessive use of force by police escorts during attempted removals, but that it was difficult to know the real extent of the problem because “either they are effectively removed to their [home] country or they physically oppose their removal and are then often brought before a criminal judge, who usually condemns them to two to three months in prison.”

Lack of independent oversight is of particular concern when returns are conducted on charter flights carrying only deportees and their guards. Frontex, the EU’s joint-border agency, has made increasing use of charter flights to remove rejected asylum seekers from several different European countries.

“With the charter flights, the level of restraint is even higher than on the commercial flights, but there are no witnesses,” said Lisa Matthews, from the UK-based National Coalition of Anti-Deportation Campaigns.

Behind closed doors

In the UK, which carried out over 40,000 forced removals and voluntary returns in 2012, civil society and the media have been reporting for years on the excessive use of force by private security guards contracted by the UK Border Agency (UKBA). A 2008 report by two UK-based NGOs - Medical Justice and the National Coalition of Anti-Deportation Campaigns - and the law firm Birnberg Peirce & Partners documented nearly 300 cases of alleged assault during forced removals from the UK between 2004 and 2008. However, the UK opted out of the EU returns directive and has no monitoring system in place.

In 2010, Jimmy Mubenga, an Angolan asylum seeker who had lived in the UK with his family for 16 years, died while being restrained by guards during his removal. Witnesses on the flight said they heard Mubenga complaining that he could not breathe, but in July 2012 the Crown Prosecution Service ruled that there was insufficient evidence to prosecute the guards or their employer, G4S, a global security group.

A spokesperson with the UKBA said that members of Independent Monitoring Boards, which monitor the welfare of prisoners and immigration detainees, had observed a number of charter flights as part of a pilot exercise in 2012, but that “decisions have yet to be made about arrangements for this type of monitoring”.

Little has changed since Mubenga’s death, said Emma Mlotshwa of Medical Justice, which sends independent doctors to immigration detention centres to record injuries resulting from the allleged use of excessive force. “The death of Mubenga, we thought, would have some effect, but it hasn’t. It’s still something that’s happening pretty much behind closed doors,” she told IRIN.

The most common injuries Medical Justice’s doctors see are those related to the use of handcuffs, Mlotshwa said, but fractured bones and injuries consistent with the victim having his or her head pushed down between the knees - an unauthorized method of restraint that can result in suffocation - have also been documented.

Marius Betondi, an asylum seeker from Cameroon, said he was so badly beaten by guards working for the contractor Tascor (previously called Reliance) during a removal attempt in January 2013 that he needs reconstructive surgery to his face and has blurred vision in his left eye.

He told IRIN over the phone from the UK that he had put up no resistance before the assault began.

“They [the guards] took me to the back of the aircraft and put a big red curtain around me so passengers would not be able to see me. They held me in a position whereby I couldn’t move because I was handcuffed, and then started punching me all over my face and body. I started bleeding terribly, and I was screaming, crying, asking for help. They continued for about 30 minutes, then I went unconscious. When I regained consciousness, they continued punching me.”

Betondi was eventually taken off the plane and returned to an immigration detention facility, where the manager informed the police. A police investigation is ongoing, which is rare in such cases, Mlotshwa said.

The UKBA is also investigating Betondi’s allegations, according to its spokesperson, who said that “physical intervention… is only used as a last resort or to enforce removal where the person concerned is non-compliant.”

Mubenga’s death has focused attention on UKBA’s lack of a detailed, publically available policy on what level of physical intervention is appropriate on an aircraft.

“When we looked at what was available publicly, it was striking that there was nothing relating to aeroplanes,” said Emma Norton, a lawyer with Liberty, a UK-based human rights NGO, adding that policy was clearly designed for use with potentially violent prisoners rather than failed asylum seekers. She noted that private security guards carrying out removals often receive only five days of control-and-restraint training, which does not include techniques for use on an aircraft.

Liberty’s request for a judicial review of the restraint policy was rejected last month when it emerged that the Home Office was reviewing the policy and had contracted the National Offender Management Service to design a “bespoke” training package for UKBA and its private contractors. The UKBA spokesperson could not say when the new training guidelines would be implemented.

Ineffective complaints system

Most cases of excessive use of force come to light only when the removal fails. Even then, many victims do not have the opportunity to make a complaint. “When people are injured and the removal fails, removal directions may be sent again very quickly, before there’s time to get medical evidence, and while they are still weak from their injuries,” alleged Mlotshwa, of Medical Justice.

She said the complaints system in the UK is ineffective and lacks independence, as investigations are carried out by the Professional Standards Unit, a department of the Home Office. “Detainees are often not interviewed, CCTV footage goes missing, and injuries are often not photographed.”

UKBA’s spokesperson said “we take all complaints very seriously and ensure they’re investigated thoroughly and in a timely manner”, but Liberty’s Norton said none of the complaints her organization has assisted with have been upheld. For those who are successfully returned to their home countries, the obstacles are even greater.

Caroline Muchuma, from the Refugee Law Project (RLP) in Uganda, which provides legal and psycho-social assistance to deportees, said, “The vast majority of our clients report having been abused prior to or during deportation,” but many do not want to lodge a formal complaint or are unable to do so.

Some fear imprisonment and go into hiding after being returned; they may receive medical treatment only long after the fact, making documenting evidence of their injuries problematic.

Muchuma said RLP is still in discussions about how best to help clients who want to pursue legal redress. “There are questions about jurisdiction that need to be determined, among others.”

She added, “The use of excessive force is across the board, but many of our clients are from the UK.” RLP has compiled a report documenting abuses by escorts and plans to send it to the UKBA.