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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

03 MAY 2013

R (on the application of Z) v Secretary of State for the Home Department [2013] EWHC 498 (Admin); (2013) PLLR 053

Immigration - Restraint - ECHR - Redaction - Public Interest

Immigration:framework manual for the control of those on board aircraft

The framework manual for control of those placed on board an aircraft pending deportation was held to be lawful and not contrary to the obligations arising under the ECHR. In the interests of public safety the Defendant remained entitled to only provide a redacted form of the manual to the Claimant.

12 March 2013

Administrative Court

Foskett J

(1)        The Claimant, who was subject to an anonymity order, brought this claim challenging the use of force used to facilitate the removal of those who had no right to remain in the UK, and those who would not cooperate with the process of removal.

(2)        The particular issue raised by this claim concerned the framework for control of those placed on board an aircraft. It was alleged that the current framework set out in ‘The Use of Force Training Manual' breached Article 3 of the European Convention on Human rights (‘ECHR'), and potentially also Article 2.

(3)        It was alleged on the part of the Claimant that if the use of ‘control and restraint' techniques on an aircraft were not regulated and, as a consequence, caused a risk to life, then there had been a breach of Articles 2 and 3 ECHR.

(4)        It was also submitted that the Claimant was unable to properly challenge the use of force due to the failure of the Defendant to disclose the manual in sufficient detail so as to allow for an adequate review of the standard restraint techniques.

(5)        The Defendant maintained that, for operational reasons of sensitivity and security, the redaction was necessary. It was contended that it would be contrary to the public interest for the redacted sections to be published.

(6)        The disclosure issue was raised before the Information Commissioner following a Freedom of Information request by a journalist. The Commissioner's decision of 12 March 2012 declined disclosure on the basis of security and good order.

(7)        HELD: The Court held that there was sufficient justification for the finding that there was a proper statutory basis for the use of ‘reasonable force where necessary. The use of force was authorised up until the point that an individual had been removed from the UK.

(8)        The Court found it compelling that there had only been one death in the whole history of removals from the UK. That there had been an immediate review and no hold on escorted removals following indicated that the guidelines used were ‘sound and safe'. There was also no compelling evidence of serious injury having been sustained since the death, and there was no indication of a major systematic problem.

(9)        Although there was no accredited training system regarding the use of force, the current system was not in breach of the ECHR so long as there was no unacceptable risk of serious injury. The Court found there to be evidence that since the death during removal, there had been many changes including

(a)        A renewed emphasis on the need to avoid restraint techniques that could result in positional asphyxia;

(b)        Where risk assessments indicate a high risk of control and restraint being required, a person with medical training would be assigned to the removal;

(c)        A degree of independent scrutiny of the process of removals now took place.

(10)     In light of these considerations, the framework of use of force applicable within an aircraft being used for removal was found to be ECHR compliant.

(11)     The Court agreed with the Defendant regarding disclosure; finding that there were obvious risks to the public in making available descriptions of techniques of restraint. The Court was thus unable to find that the decision to withhold information represented the outcome of ‘an erroneous decision-making process'. The Court was satisfied that the risk to both members of the public and other detainees weighed sufficiently in the public interest that it was lawful for the Defendant to decide not to disclose the full Manual.

(12)     Both grounds of challenge were therefore found to have failed.

Claim dismissed

Key Paragraphs

[75] - Submissions.

[96] - Statutory basis for use of reasonable force.

[106] - No systematic major problem.

[106] - Not breach ECHR.

[109] - Amended practice.

[111] - ECHR compliant.

[112] - Disclosure.

[127] - No erroneous decision-making process.

[134] - Public interest.

[140] - No public interest certificate.

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