Deprivation of care: Right to health in Italy’s deportations by air

Guest post by Carolina Di Luciano. Carolina is a lawyer specialising in migration and asylum law and a PhD candidate at the Faculty of Law of the University of Turin. Her research focuses on migration, detention, and other forms of restriction of personal liberty, with particular attention to access to healthcare. This post is part of a thematic series on healthcare and detention.

People subject to deportation have the right to protection of health during forced removals. This is outlined by Italy’s independent body for protecting the rights of persons deprived of their liberty. Yet, at least in Italy, these rights face two clear limitations. First, fitness to travel is often assessed by the same doctors who work in the detention centres, while medical staff present during the removal are employed by the police force carrying out the operation. Second, forced returns are inherently violent, entailing unannounced departures, prolonged restraint and the use of force, which all cause physical and psychological harm that no medical clearance can prevent. Under these conditions, healthcare provided during forced returns risks becoming a component of the removal machinery rather than a safeguard against it, and removal itself becomes a source of harm to health.

Among others, William Walters has contributed to the theorisation of a “microphysics of deportation”, focusing on the non-neutral role of aviation in deportation operations. Air transport is widely perceived as a safe and reassuring setting, which might suggest that safeguards are respected. Yet it is precisely this context that proves a highly effective tool for return policies. Air travel enables large numbers of people to be removed, often over long distances, within a short period of time, while rendering operations largely invisible to civil society and, consequently, reducing the risk of disruption. In such conditions, the very nature of aviation makes access to safeguards all the more difficult.

Following the approach adopted by Walters and, in the Italian context, by Campesi, De Robertis and Oziosi, this blog post examines the protection of the right to health during forced return operations from Italy, with particular attention to removals carried out by air.

Beyond the relevant legal standards and guidelines, this post draws on observations made while I served as a member of the National Guarantor, Italy’s independent body responsible for monitoring forced return flights pursuant to the EU Return Directive. For reasons of brevity, it does not examine the critical issues concerning the monitoring mechanism itself. 

Return decisions and protection of the right to health 

Within forced return operations, healthcare constitutes a critical issue during the process of the return itself, and in relation to the country of return. In Italy, Article 32 of the Constitution guarantees everyone, regardless of their legal status, the right to healthcare. Similarly, the legal system is founded on the principle of non-refoulement, under which no person may be returned to a country where they face a real risk of punishment, torture, or inhuman or degrading treatment, including situations resulting from a serious lack of access to healthcare.

It is therefore unnecessary to examine the relevant legal provisions in detail in order to recognise that the enforcement of a return decision is subject to an inherent and fundamental limitation, namely the protection of the right to health. Where a person requires immediate, urgent and/or ongoing health and social care, the removal cannot lawfully proceed unless those healthcare needs are adequately addressed. In such circumstances, the person should instead be granted access to appropriate healthcare and, where necessary, to a regularisation procedure – i.e. to provide them with documents permitting their stay in the territory.

At present, during a forced return, individuals who have previously been detained undergo a medical examination by a doctor who may not even be part of the public healthcare system, but rather a physician contracted by the detention facility. This doctor is responsible for issuing the fit-to-travel certificate, a document widely criticised as a generic pre-printed form that fails to provide adequate safeguards regarding the person's actual state of health.

The process is followed by a handover between the doctors working in the detention centre and those accompanying the return operation. In Italy, the latter are police medical officers who, although formally expected to exercise their professional duties independently, operate within the same institutional body responsible for carrying out the deportation, thereby giving rise to an inherent conflict of interest.

An inherently panic-inducing process

Several issues arise at this stage. First, pre-existing medical conditions may not have been identified during the preceding period of detention. Second, the deportation process itself is liable to cause significant psychological distress. Since removal operations are not communicated to the person in advance, they may legitimately trigger panic or acute anxiety.

Usually, each person is escorted by at least two police officers and, contrary to relevant international standards (as outlined in the Guidelines for the Monitoring of Forced Return), is restrained with Velcro handcuffs, often for the entire duration of the flight. The aircraft itself already acts as a form of restraint too – a narrow cabin, surrounded by officers, with no possibility of escape. In such a setting, individual restraints appear not only harmful but largely unnecessary.

Forced removals can provoke extreme tension and, precisely for this reason, people may resort to acts of self-harm in an attempt to stop the deportation from taking place. During training, escort staff are instructed to remain particularly vigilant at certain sensitive moments, such as while boarding the aircraft via the boarding stairs. This represents the final opportunity for a person to attempt to escape by running onto the runway or to injure themselves by any means available.

It is difficult to regard such a practice as one that respects a person's dignity or physical and mental integrity. No fit-to-travel assessment can guarantee that a person will not suffer severe psychological or physical harm precisely because of the way in which the removal is carried out.

There is also a second issue: individuals are often returned to countries where there is no certainty that existing medical conditions can be adequately treated or that the necessary medication will be available. As standard practice, returnees are currently provided with medicine to cover only the first few days following return (as outlined in the Guidelines for the Monitoring of Forced Return, and in Frontex’s Guide for Returns Operations By Air). This may amount to a breach of the principle of non-refoulement, exposing the person to a direct risk to their health. 

Healthcare as an obstacle to removal

Forced removals by air constitute an exceptionally violent practice, one that remains largely invisible to civil society and is managed almost exclusively by the police. As with administrative detention, the role of healthcare professionals and the attention paid to the individual's health and social care needs can, when exercised independently and effectively, prove decisive in preventing a removal that ultimately amounts to a deliberate deprivation of care.

In the troubling post-Pact Europe, where detention centres and facilities designed to facilitate the return of migrants are rapidly proliferating, it is essential to reclaim new strength for an abolitionist vision capable of moving us towards the definitive rejection of these practices. A procedure that fails to respect a person's right to physical and mental well-being, and that indeed risks inflicting direct or indirect harm, cannot be regarded as legitimate.

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