Air Mauritius in the dock: There was no directive to deport Yashika
Last night, just minutes before Yashika Bageerathi was deported, Air Mauritius put out a statement.
The airline had been inundated on Twitter, Facebook, email and telephone by people demanding they refuse to carry out the deportation and threatening a boycott.
According to ITV, they said:
"Air Mauritius had been contacted by UK authorities during the last weekend, for the repatriation of Miss Bhageerathi.
"Considering that all conditions (administrative and security) had not been met, Air Mauritius was not in a position to take the passenger on-board.
"Yesterday 1st of April, Air Mauritius received a directive from UK authorities for the repatriation of Miss Bhageerathi.
"All conditions having been satisfied, the company had no other choice than to abide by the directive.
"Air Mauritius regrets this situation, but as all airline companies cannot but abide by decisions taken by relevant authorities."
The statement is inaccurate. There was no directive.
I am told by the Home Office there actually is no such thing as a deportation directive. They cannot force private airlines to carry passangers on board.
There are discussions which take place prior to a deportation, especially one which will cause protests and consumer complaints. Those conversations took place.
It's clear Air Mauritius got cold feet last week when it refused to carry out the deportation and that they subsequently caved in to Home Office requests. It's also clear they did not have to. They could have refused.
The company was refusing to comment when I contacted them this morning. But they have questions to answer: Their account of events bears little comparison to that from the Home Office.
This is not an issue of moral blame. It's an issue of how to appropriately prevent deportations.
Both British Airways and Air Mauritius turned down earlier requests to deport Yashika. Late last year, it appears Virgin airlines did the same in the case of Nigerian national Isa Muazu.
It is not because they have some sense of moral backbone. They manifestly do not. Air Mauritius subsequently did carry out the deportation. In British Airways case, they still have not launched an internal inquiry into how Jimmy Mubenga was unlawfully killed while under their care.
It is because airlines are the weak spot in the deportation system. Unlike the Home Office, unlike private contractors, they are sensitive to consumer pressure.
The campaign against Air Mauritius yesterday may not have suceeded, but it was exemplary. Airlines must receive an endless barrage of phone calls, emails, tweets and Facebook messages, telling them calmly but forcefully that you are lodging a protest at the deportation and that you will boycott the company and encourage others to join you.
Let them discover that deportees do have support and that the support will have a specific commercial impact on them.
It will not stop deportations. The Home Office will resort to charter flights.
But in individual cases it can delay the deportation. And more generally it removes legitimacy from a programe which stands as an affront to British values.
Update: British AIrways just got back to me with the following statement:
"Like all UK airlines, we have to comply with the terms of the Immigration Act 1971. We require a full risk assessment from the authorities before determining whether to carry a deportee."
The reference to the Immigration Act 1971 is odd. There is nothing in that Act which forces them to carry out a deportation. The reference to the risk assessment is more interesting, because it's clear it doesn't come just from "the authorities". British Airways has its own internal risk assessment, upon which is can decide to take a passenger or not.
Technically, the Home Office booking a flight for deportation is no different to a normal punter doing it. The only thing that changes is BA's risk assessment. Their risk assessment for a deportee is different, obviously, to that fora family going on holiday to Disney World.
But here's the kicker: the risk assessment is not just a security evaluation. British Airways won't sayexactly what is in it, but it is clear that there are other factors beyond security, such as passenger experience. Someone sat for their hlidays watching a screaming man beg not to be deported may, for instance, be discouraged from using BA again. And of course that situation has its own security concerns.
BA won't confirm that public relations and concerns around consumer boycotts factors into their risk assessment. But they will confirm that it is not limited to security matters. We can conclude from that quite safely that a focused, well-organised consumer campaign can make them refuse Home Office requests for deportations.
Update two: The (rather brilliant) Colin Yeo on Twitter has directed me towards sections of the 1971 Act which do seem to suggest the home secretary can force private carriers to take deportees. For instance, Section 27(a)(ii) (bear with me) says the captain of a ship or aircraft will be guilty of an offence if they fail "without reasonable excuse to comply with any directions… with respect to the removal of a person from the United Kingdom".
I contacted the Home Office about this a few hours ago and they haven't gotten back to me yet. But immigration experts have pointed out to me that the Act rubs up rather messily alongside legal protections for the pilot to do whatever they like on their plane. A plane, for as long as it is operational, is the domain of the pilot and they are its dictator.
Regardless, most deportation experts I've spoken to do not believe the Immigration Act comes into play very often, not least because the Home Office has little reason to do it. Most of the time, an chat will prove enough to get airlines to play ball.
The leverage they have over an airline like Air Mauritius is questionable. With Virgin, for instance, you could threaten their contracts elsewhere. But with a small foreign carrier, it's hard to see what the Home Office has to bully or tempt with. But they don't really need it. Getting a senior civil servant to have an informal chat in the right ear is usually all that's required. We have no proof, but that's probably what happened in the Yashika case.
The legal case is complex – but the idea of targeting private airlines planning deportations remains a workable one.
Update three: The Home Office just sent me this statement:
"The 1971 Immigration Act allows the government to direct carriers to remove people from the country. However, removals from the UK are generally carried out after discussions between the government and commercial carriers.
"We do not routinely comment on individual cases."
To me, there is a fairly clear implicit meaning to this: 'We don't use law because we don't have to but we would if we did.'
It conforms with the oft-repeated comment that conversations around deportation are conducted in a lax, informal manner.
That's not strange. Government departments prefer chatting than forcing. Resorting to the law destroys relationships. Much better to keep everything chugging along without recourse to statute.
From the perspective of those trying to stop deportations, it reveals a weakness. It is true that stopping commercial flights just means the Home Office will deploy the 1917 Act and that even if it didn't it would use charter flights. But it remains a sensible tactic. We should be making life as difficult as possible, and changing the assumption that the only public pressure on immigration is toward spite.
As a side note, I'm hearing from reliable sources that nothing changed in the risk assessment given to Air Mauritius the first time or the second time. They got cold feet. If they got cold feet because someone in the company advised otherwise or because someone at the Home Office had a word – that's still a mystery.