Death in the Air

Within the last ten years, six failed asylum seekers died on commercial flights. Governments try to find alternative means to deport failed asylum seekers, but is it for the safety of the deportee or for reasons of greater efficiency? Tareq Al-Arab reports

When three border police officers forced Mohamed Aamir Ageeb's head between his knees, his arms and legs bound and a motorbike helmet on his head, the 30-year-old failed asylum seeker suffocated on his Lufthansa deportation flight from Frankfurt to Khartoum.

On 2 February 2004, almost five years later, the case is finally taken to court. The border police officers might face up to five years of prison but the outcome of the trial is yet unclear.

Ageeb's case is not an exception. The Argentinean Ricardo Barrientos died minutes after he boarded Air France flight 416 to Buenos Aires. The failed asylum seeker had been led handcuffed onto the aircraft by French security guards.

When he resisted, the guards forced him to sit down, and they pressed his knees up to his chest. The 52-year-old suffocated in his seat. Just two weeks after Barrientos' death, Mariame Getu Hagos, another deportee, died on an Air France flight.

"These deaths are the first to have occurred on an aircraft during forcible deportation from French territory since 1991, and for that reason alone require urgent in-depth examination," says AI-spokesman Neil Durkin. "The number of deaths in other European countries make it yet more imperative for these instances to be fully investigated."

Almost impossible for asylum seekers to assert human rights

An inquiry is ongoing and AI called for its results to be made public and demanded a full and impartial investigation into the circumstances of Barrientos' death. But apparently, as a refused asylum seeker, it is almost impossible to assert one's human rights.

"Once a person is put on a plane and they are successfully removed, the chances following up a complaint is nil," says Nicola Rogers, a barrister with the British Immigration Law Practitioners Association.

In the UK not a week goes by without incidents where failed asylum seekers revolt on their deportation flight, say companies in charge of the deportations. Apparently airlines are now trying to avoid deportations.

Tom Davies, chief executive of Loss Prevention International, a company responsible for escorting deportees out of the UK, explains how the deportation business is becoming increasingly difficult because after September 11 many commercial airlines refuse to carry failed asylum seekers.

"If it were not for BA, the number of scheduled flight removals we get out of this country would be virtually nil," says Davies. "We cannot discriminate against persons with a valid ticket!"

Most deportations are conducted on commercial passenger flights. "We have to transport everyone," says a British Airways employee. "We cannot discriminate against persons who are to be removed because they have a valid ticket. The Home Office tell them when they have to fly back and with which airline, we then have no choice but to accept them."

Deportations by commercial airlines are still all part of a day's work, even though it may interfere with customer service. "I have witnessed deportations on flights quite a few times," says Enis Günay, a frequent BA flyer. "They are handcuffed and escorted by two police officers on each side. The people who are deported are losers anyway; why do they have to be humiliated like this, on top of everything?" he asks.

Airlines say they are bound by law

Campaigners have urged airlines over years to stop participating in the removals. The airlines usually reply that their hands are tied by state laws.

Referring to the deadly deportation attempts of Barrientos and Hagos, an Air France spokesperson explains: "We are occasionally obliged to transport foreign nationals to the border. These deportation measures are carried out by the Ministry of the Interior or by the appropriate authorities of other states, on the basis of administrative and legal decisions."

British Airways says that – just like Air France – it is bound by law to conduct deportations. "According to the UK Immigration Act 1971, we are legally obliged to transport deportees if the government asks us to," explains a BA press officer.

"Statewatch", an independent European human rights watchdog, confirms that in the UK there is a clear legal obligation for the airlines. Moreover, section 27 of the 1971 Act makes it a criminal offence for a captain to fail to comply with directions for someone's removal.

The captain may refuse to carry deportees

The British Home Office explains that on occasions a captain can refuse to carry a disruptive deportee on the grounds of safety and security of the aircraft. Confronted with the question why some airlines could recently afford to categorically refuse deportations, the Home Office bounced back: "This question would be better put to the airlines."

In any case, the situation is ambivalent. Airlines have a duty to transport in principle, but they can use a loophole in the law to make exceptions when safety becomes an issue. The flight captain has sovereignty on board and may deny people from boarding if he considers them a high risk to flight safety.

Klaus G. Meyer, former Chairman of the Legal Committee of the German pilot association "Vereinigung Cockpit", points out how any deportation can bear an incalculable legal risk for the pilot involved.

According to international law the authority of the responsible pilot is limited to assuring the safety and order on the flight, explains Meyer. In accordance with the principle of the rule of law, the pilot would have to do this by applying the most benign means.

If it is already foreseeable that safety can only be maintained with the use of force, it is the most benign means not to let the deportee board at all. Thus, if the authority of the escort is derived from that of the pilot, it is also the pilot who is in a legal sense responsible for any harm done to the deportee.

"You want to be deported?"

"Vereinigung Cockpit" advises its members to refuse to transport any deportees "clearly unwilling to travel" which is in line with the policy of the world pilot association IFALPA. In fact, "Vereinigung Cockpit" goes as far as to advise its members to explicitly ask the deportees whether they wish to travel in order to rule out any possible risk of judicial repercussions.

Airlines like British Airways or Air France do not want to tie themselves down to a definite policy according to which they abandon deportations per se. "We may refuse deportations but on a case-by-case basis and on reasonable grounds," says a British Airways press officer.

"It usually takes a scandal for companies to begin looking at values management" reads a quote by Dirk Gilbert, professor at the European Business School, on the website of the anti-deportation campaigner group "Deportation Class". In the case of the German Lufthansa it seems to ring true. Since the death of Ageeb, the airline has refrained on principle from transporting deportees against their will.

Trying to find other means to return deportees

European governments have recently considered alternative means to remove failed asylum seekers from the country from increased group charters to by-land deportations in scheduled buses, trains or unmarked police cars. The "UK Home Office" says that charters are a "safe and effective means to return people to their countries in a dignified way" and that on charter flights the refused asylum seekers are escorted by medically trained staff.

However, the prevalent method remains to book deportees on passenger planes of commercial air carriers. And whatever the disadvantage to other ways of transport - one has to concede that on commercial flights, at least the deportees have witnesses. Nevertheless, critics maintain that – whatever method is used – deportees must have the protection of independent observers.