Use of Force by Immigration Escorts: The Legal Framework and its Problems

Blog post by Amy Hemsworth (BCL student, University of Oxford Faculty of Law, and Research Assistant to Professor Mary Bosworth, Oxford Centre for Criminology)

When those without leave to remain in the UK are removed from it, they are sometimes accompanied by private sector detainee custody officers known as ‘escorts’ whose job it is to ensure they leave.  These escorts have powers to use force to carry out the various duties associated with the removal process. However, the legal framework setting out their powers and duties is a complex one, and one that, much like the rest of immigration law, has evolved gradually and as a patchwork of various different legal measures. In this blog post I set out how the system fits together, examining the efforts made by courts to interpret and apply the framework, before turning to some problems with the framework.

It might be argued that given that only a minority of those removed from the country are accompanied by escorts, that the legal powers of escorts is not a particularly important issue. However, just because the number of those affected is comparatively small – averaging around 2000 per year – that does not make the issue unimportant, because the consequences if something goes wrong can be severe. Not only can restraints be dangerous or even lethal – as in the tragic case of Jimmy Mubenga, who in 2010 died while being restrained on an aircraft by G4S escorts – but greater scrutiny of the process of escorted removal has potential ramifications for all elements of the immigration detention estate as similar powers are used elsewhere. Examining the removal process thus can shed light on the attitudes and practices that pervade the system.

The case law

The key cases I will focus on are R (on the application of Salimi) v Secretary of State for the Home Department and R (FI) v Secretary of State for the Home Department , which are two of the very few judicial attempts to apply the framework on escorts’ powers as it currently stands.  First, I will sketch out what was happening in each case.

In Salimi, the claimant alleged he had been subject to improper use of force by his British immigration escorts, who held him down to be beaten by Iraqi police when his plane landed during a transit stop. He tried to have his complaint heard by the Independent Police Complaints Commission, but this body does not have jurisdiction to hear complaints about powers used under Part VIII of the Immigration and Asylum Act 1999. Consequently, the court needed to determine exactly which part of the legal framework confers escorts’ powers.

In FI, the court heard an argument that the framework governing use of control and restraint powers by escorts during removal by air contained insufficient safeguards and consequently breached Articles 2 and 3 of the European Convention on Human Rights (right to life and right to protection against inhuman and degrading treatment respectively). The claimant was particularly concerned with the adequacy of the training given to escort officers and with whether the policy governing use of force was lawful.

The Immigration and Asylum Act 1999

A general power for immigration officers to use force is found in the Immigration and Asylum Act 1999 (‘IAA’), s 146(1). This section reads: ‘An immigration officer exercising any power conferred on him by the Immigration Acts may, if necessary, use reasonable force.’ For escort officers to use force, then, they must be exercising a power conferred by the Immigration Acts.

In Salimi and FI, judicial analysis begins with s 14 IAA, which permits the making of directions that an individual being removed from the country is to be accompanied by one or more escorts. In Salimi, the claimant argued that this section provided the source of escorts’ powers. However, the court rejected this argument and held that the source of escorts’ powers and duties was within Part VIII of the Act (encompassing ss 147-159).

More specifically, escorts’ powers and duties are conferred by s 156, subsection (1)(b): ‘The Secretary of State may make arrangements for…the delivery of persons from any such premises for the purposes of their removal from the United Kingdom in accordance with directions given under the 1971 [Immigration] Act or this Act’. I will elaborate further on the relevance of the 1971 Act below.

S 156(5) then refers the reader to Sch 13 of the Act for ‘further provisions about escort arrangements’, which upon closer look actually constitutes the main detail of escorts’ powers and duties. Sch 13 para 2(5) allows escorts to use ‘reasonable force where necessary’ to exercise powers of search (set out in para 2(1)) and the ‘powers arising by virtue of sub-paragraph (3)’, which are those powers necessary for the performance of the following duties in relation to detainees:

1. to prevent that person’s escape from lawful custody;
2. to prevent, or detect and report on, the commission or attempted commission by him of other unlawful acts;
3. to ensure good order and discipline on his part; and
4. to attend to his wellbeing.

The scope of these duties appears alarmingly broad. The idea of ‘ensur[ing] good order and discipline’ seems especially concerning as it appears to provide a carte blanche for the individual escorts to decide what behaviour they consider appropriate from the detainee and what counts as ‘out of order’.

The Escorts

S 156(2) states that escorting may be performed by detention custody officers (‘DCOs’), while s 147 defines a DCO as ‘a person in respect of whom a certificate of authorisation is in force’ under s 154, which sets out the requirements of accreditation to perform escort and custodial functions. The Secretary of State may not authorise a person as a DCO unless they are ‘satisfied that the applicant (a) is a fit and proper person to perform the functions to be authorised; and (b) has received training to such standard as the Secretary of State considers appropriate for the performance of those functions.’

The particulars of the training escorts receive are hard to find. Indeed, one issue raised by the claimant in FI was that the relevant policy document at the time – the Use of Force Training Manual – could only be accessed in redacted form. The same is now true of the HOMES (Home Office Manual for Escorting Safely) document that has since replaced it, though the redacted information consists primarily of the exact details of how to carry out the various control techniques, which the Court of Appeal accepted was appropriate given the risk to public safety if this information were publicised. Although reports such as Baroness O’Loan’s Outsourcing Abuse and the Shaw reviews into the welfare of vulnerable persons in detention have shed a little more light on training procedures, this aspect of the immigration control estate remains quite opaque.

The final piece of relevant information about the identity of those performing escorting duties is that they are private contractors. The current holder of the escorting contract is Mitie, which also runs four immigration removal centres in the UK. As I will argue below, we ought to pay more attention to the private character of the escorting service given that the system relies on escorts’ powers continuing once they have left the jurisdiction.

Extraterritorial Application

The most glaring problem with the powers of immigration escorts is the lack of clarity about whether and how those powers remain in force once the escort(s) and detainee have left the country. It has certainly long been the operating assumption of the Home Office that they do, but in a recent study by Mary Bosworth, officers reported confusion about the sources and extent of their powers, particularly when travelling through transit airports in third countries.

This uncertainty was obvious in the Salimi case. The court focused on the proper construction of Sch 2 para 16(2)(b) of the Immigration Act 1971 (‘IA’), which permits detention of those without leave to remain in the custody of an immigration officer. The paragraph states that the person may be detained ‘pending…his removal’. Counsel for Mr Salimi contended that ‘pending removal’ should be interpreted to mean up until the commencement of the removal process – meaning that the immigration officer’s powers would terminate when they placed an individual onto a ship or aircraft for removal – whereas the Home Office argued that removal remained ‘pending’ until fully completed. The Home Office’s interpretation won the day; however, I argue that the reasoning on which this conclusion was reached is shaky at best.

The court in Salimi rejected the claimant’s interpretation on two grounds. Firstly, it took the view that ‘pending removal’ could not mean pending ‘the beginning of the removal process’, because this was an ‘inherently uncertain concept’. I see this as a very weak objection. Surely the moment of departing the UK would be a natural point for the termination of escort powers on the part of the officials. This seems perfectly logical given that there is never any reference, in either the IA or the IAA, to such powers applying abroad. On the contrary, the language of s 156(1)(b) refers only to escorting for ‘the delivery of persons from [detention premises] for the purposes of their removal’, with no mention of where they are being escorted to. This could plausibly be understood to mean only the process of escorting someone from an IRC to the steps of the aircraft, at which point they fall under the authority of the plane’s captain as is the usual position in international law, and as happens in unescorted administrative removals.

The second objection was made by reference to Sch 2 para 16(4) of the IA 1971, which provides that a captain ‘if so required by an immigration officer, shall prevent from disembarking…any person placed on board the ship or aircraft’ under removal directions (my emphasis). The italicised phrase was considered by the court to show that the officer’s authority must continue throughout the removal journey, because otherwise they would be unable to ‘require’ a captain to do anything. However, the court conveniently ignores that the paragraph goes on to say that for the purpose of preventing the individual’s disembarkation, ‘the captain may…detain him in custody’; a phrase which suggests that while the immigration officers may retain their power to determine who is and is not allowed into the country, they do not retain a personal capacity for use of force elevated beyond the level permitted to any citizen (ie self-defence or defence of others). It ought also to be noted that the language of the IA refers to a person being ‘placed’ aboard an aircraft or ship, which seems to suggest a handover from escort to captain.

I would therefore argue that it would have been at least plausible to accept the claimant’s side of the argument in Salimi. This would also have been consistent with the general presumption in English law that Parliament does not intend to legislate with extraterritorial effect (see eg Al-Skeini), which I do not think the Court of Appeal addressed adequately in its discussion. Instead, it simply stated that this presumption is strongest in the context of the criminal law and that it ‘must be’ weaker in the context of removal directions; however, no explanation was given as to why exactly this was true, or what it was about the criminal law that made the presumption appropriate. Then, it argued that:

Neither the receiving state…nor any intermediate state…is likely to feel that its territorial rights are infringed by continued detention…If such a person were to escape [in one of these states] he then would become a no doubt unwelcome problem for that state rather than a problem for the United Kingdom; to that extent any such state would be likely to welcome the fact that the authority to detain continued until the removal process was complete. (at paragraph 18)

While this may be true, a unilateral statement by a domestic court does not seem like the appropriate way to express it. If this position is to be accepted as a norm of international law, surely it requires some form of prior international discussion and political consensus, particularly given the role of private companies in immigration escorting. It may be one thing for the UK Parliament to pass a law that state escorts’ powers continue outside their jurisdiction, but it is quite another to say that the UK is competent under international law to confer such powers on private actors.

Conclusion

Ultimately, we simply do not have sufficient evidence either about the legal grounds of escort’s powers to use force, nor the frequency with which they do so in the process of deportation to come to firm conclusions. The only reason why the cases of Salimi and Wamala were heard at all, was that both removals were unsuccessful. In FI the Queen’s Bench noted that the rate of complaint about excessive use of force (constituting about 5% of cases) may not be accurate – even counsel for the Home Office acknowledged that the rate ‘may be diminished by reason of the fact that most who would claim to have been a victim…might have left the UK before the opportunity to complain could be taken’ – however, without empirical evidence to indicate the true rate of complaint, the court could do little.

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