Jimmy Mubenga and the use of restraint in enforced removals: Does a need for the Government to effect deportations ever have to result in a loss of life?

“Jimmy Mubenga death: G4S guards ignored deportee’s cries before he died on airliner”, reported the Independent on 4 November 2014.

Three G4S security guards are currently on trial for manslaughter following the death of Jimmy Mubenga on 12 October 2010 on a British Airways flight from Heathrow about to take off for Angola. Following service of a criminal sentence in the UK, Mr Mubenga was due to be deported by the immigration authorities. He was being escorted by three private security guards working for Group 4 Services (G4S) contracted by the UK Border Agency. Following his death, an inquest returned a verdict of unlawful killing as it was found that Mr Mubenga, a father of five had died as a result of unlawful force being applied. Mr Mubenga had died following the use of restraint by the security guards. They held Mr Mubenga forward such that he was unable to breath properly. Shouts that he could not breath were heard by other passengers however these were unheeded by the security guards.

It is truly hoped that there never need be a loss of life during the removal process due to unreasonable force being used, however the government is under increasing pressure to effect removal of deportees in particular following the recent report on 22 October 2014 from the National Audit Office as regards Foreign National Offenders (FNO). The report found that , “Removing FNOs from the UK continues to be inherently difficult and public bodies involved have been hampered in their efforts by a range of barriers, although poor administration has still played a part……”

Amyas Morse, head of the National Audit Office also stated, ” It is no easy matter to manage national offenders in the UK and to deport those who have completed their sentences. However, too little progress has been made, despite the increased resources and effort devoted to this problem. The Government’s focus on preventive measures and early action is promising, but it has only just started to exploit these options. It needs to build on the momentum of its recent action plan….”

The government can therefore be expected to increasingly focus more on removals of those in particular who have been convicted here and served their sentence.

Although the government will effect enforced removals where a person no longer has a legal basis to remain in the UK, the question however arises as to whether the techniques employed to restrain deportees show respect for the dignity and rights of those being removed. Clearly a loss of life during the deportation process does not.

Mr Mubenga had been held in a ‘head-down” restraint position using techniques which were not part of the control and restraint techniques in which the detainee custody officers involved had been trained.

Another obvious question would be how best to approach an apparently non-compliant deportee just before a flight if not by use of some physical force. Rather than approach the issue solely from the perspective of needing to swiftly effect a “successful” removal by whatever means, it may be necessary to consider and appreciate the heightened situation of distressed intensity a deportee may find himself in during the removal process in particular as in the case of Mr Mubenga where he was leaving behind a wife and children behind in the UK. Apparently the security guards did not seek to calm the situation down with words but simply and mainly resorted to the use of force.

The government has published a Detention Services Order 07/14, Risk Assessment Guidance for Contracted Escort Staff with an implementation date of 30 August 2014. It provides guidelines on the waist restraint belt, leg restraints and the mobile chair for detainees under escort and associated risk assessment. A further Detention Services Order 06/2014, Risk Assessment Guidance for Escorted Moves- All Contractors with an implementation date of 26 August 2014 provides guidelines on handcuffs, leg restraints and escort chains on detainees under escort and associated risk assessment. Both orders recognize that the use of any restraint should be necessary, reasonable and proportionate and that unless risk is properly assessed and the use of restraints fully justified, the use of restraints is likely to amount to inhumane and degrading treatment under Article 3 of the ECHR.

The government will therefore continue to apply some restraint however where in a particular situation a deportee, in inevitable distress as will almost always be the case in an enforced removal situation, resists removal the most reasonable and proportionate course of action surely is to abandon that proposed removal rather than risk a loss of life or cause severe physical injury to a deportee. The deportee not being in a position to escape custody from an airplane can be returned to the place of detention and another removal date set for another day. The vast majority of detainees liable to removal are to be assumed to be reasonable and sensible people regardless of their place of origin and can be expected to reach a conclusion sooner or later that where there is no prospect of remaining in the UK that they will eventually have to leave. Unless a deportee seeks somehow to make themselves “indefinitely irremovable”, which may be an impossible mission long term, those that may physically resist removal more vigorously than others can also be expected to cooperate at some point with the removal process. Although it may be of some cost to the government to defer removal and cancel a flight, rather than for escorts/ security guards to seek to take a risk and use physical force in a situation which may quickly and unexpectedly escalate out of control, this may be a more reasonable, proportionate and humane course of action rather than risk a loss of life merely to effect a deportation.

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