CIVIL AVIATION OBLIGATIONS IN DEPORTATIONS

Airline obligations

Governments globally contract airlines to assist in the removal of asylum seekers and refugees from the countries in which they are seeking refuge.

Airlines must, in the performance of this role, respect human rights and avoid ‘adverse human rights impacts’, under the ‘protect, respect, remedy’ framework of the United Nations Guiding Principles on Business and Human Rights (the Guiding Principles). This responsibility takes precedence over national laws. The Guiding Principles themselves do not create new human rights responsibilities, but rather consolidate and clarify the expected behaviours of corporations in accordance with international human rights law.

What this means in practice, in the context of deportations, is that airlines should take steps to avoid involvement in the return of individuals to countries where they may be persecuted or suffer torture or cruel, inhuman or degrading treatment.

Involuntary removals from Australia

Australian legislation allows for removals of both asylum seekers and refugees who have missed deadlines for applying or reapplying for protection visas. This may result in the removal of asylum seekers prior to the completion of an assessment of their protection claims, or the removal of refugees despite their acknowledged status as refugees, in contravention of the non-refoulement  and complementary protection principles in international human rights law. In addition to the potential adverse human rights impacts arising from these removals, there are also concerns around airlines’ involvement in family separations, the use of restraints during transport and removal to offshore processing centres that are unable to guarantee the protection of human rights.

As a result, airline participation in the involuntary removal of asylum seekers from Australia is argued to be a breach of the Guiding Principles and the human rights instruments underlying them.

In Australia, two of Australia’s major airlines, Qantas and Virgin, routinely participate in involuntary removals at the request of the Australian Government. They have been under increasing public pressure, ranging from protesting finalists at the Qantas ‘women of influence’ awards and celebrity statements condemning airline involvement in involuntary removals, to on-board protests and  shareholder actions requesting heightened due diligence and a review of involuntary removal policies, among other actions. However, both airlines have indicated an intention to continue assisting with involuntary removals.

Involuntary removals internationally

Internationally, the role of airlines in involuntary removals has also received widespread attention. In 2017, pilots in both the United Kingdom and Germany refused to carry asylum seekers being returned to danger, predominately to Afghanistan. The pilots cited their responsibility for ensuring flight safety as their reason for grounding flights until the asylum seekers were removed.

The issue rose to prominence again in 2018 in several countries. In the United States, a range of airlines issued statements saying they would not transport migrant children who had been forcibly separated from their parents. However, their refusal to transport did not extend to removals not involving children.

In Sweden, a student refused to take her seat over the involuntary removal of an Afghan asylum seeker, resulting in the exclusion of both herself and the asylum seeker from the flight. Video footage of the protest was widely shared.

In the United Kingdom, Virgin Atlantic announced that it would no longer assist the Home Office in carrying out involuntary removals. There had been public pressure following the Windrush scandal, where individuals who had arrived legally, but were subsequently unable to provide proof of their status, were wrongly deported. The airline stated its decision was based on the best interests of its customers and people.

 

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Last updated 14 February 2019