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. Positioning of the monitor

Whenthereturnees are handed overtothelocal officialsinsidetthe means oftransportation,
the monitor should be seated in one ofthe front rows/close to the entrance, where s/he has
a good view and is within hearing range. Should the returnees disembark and be handed
over tothe national authorities at an arrival building, the monitor should preferably accom-
pany the escorts and the returnees to the place where the returnees are handed over.

. What to observe
At this stage the monitor shall observe whether:

+ Remaining hand-cuffs, body-cuffs or other restraints have been removed immediate-
Iyafter arrival, if possible;

+ All personal belongings, which were taken away for security reasons have been hand-
ed overtothereturnee(s) priorto disembarkation;

+ The luggage of the returnee(s) is still in good condition and returned to the return-
ee(s) in an organised way; and

* Thereturnee(s)ishanded over to the national authorities bytheELina calm and pro-
fessional way, especially where they have caused difficulty for the escorts during the
return operation or have complained to the national authorities about the treatment
received during the return.

In case of an operation by air, if the aircraft is returning immediately after the handover and
the monitor remains on board, they should watch from a window seat, or if possible from a
position on the gangway, how and ifthe luggage was delivered to the returnees. Also, they
should observe how the returnees were treated by local policemen or border quards. Any
incidents or mistreatment witnessed should be documented in the monitoring report. In
preparing future return operations to this country of return, the authoritiesin the countries
of departure could make use of this information to see how to safequard the correct treat-
ment of the returnees following arrival.

Step 3. Stopover - if applicable

Itisrare that an overnight stay in the country of return is necessary, astthe OMS will try to
organise areturn directly after arrival. However, ifa forced-return covers long distances, or,
for example, in cases of a return by air, an overnight stay might be required due to airport
hours. Also, atechnical problem of the transport vehicle might make an overnight stay nec-
essary. In these cases, different procedures apply in different countries. In very rare cases,
returnees are not accepted by national authorities in the country of return and have to be
part of an overnight stay. The monitoring tasks related to this specific situation are not in-
cluded in this Background Reader.

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3.7 Monitoring the return-flight phase

During the return flight, returnees are normally not on board and the de-briefing ofthe oper-
ation usually takes place on board the means oftransportation. Should, however, unaccept-
ed returnees be on board, the monitor should stay close to these returnees throughout the
whole return operation and all duties of the monitor continue to apply as described in the
in-flight and arrival phases above.

1. Return to the country of 3. Handover of unaccepted
departure (JRO: hub) returneesto the authorities
backin the country of departure
(RO: hub) - if applicable

 

2. Debriefing during the return
leg (in case of unaccepted
returnees, debriefing with the
monitor may take place upon ar-
rival in the country of departure)

Step ı. Return to the country of departure
+ Positioning of the monitor

As the number of refused returnees, if any, on a forced-return operation is normally low, the
monitor should remain close to those returnee(s) on the journey back.

. What to observe
+ See monitoring the in-flight and arrival phase - all relevant steps apply; and

* Depending on national procedures, eitherthe same escortsremain responsible foran
unsuccessfully returned individual, or a back-up team of escorts, if available, may be
responsible for the returnee on the flight back to the country of departure.

Step 2. Debriefing during the return leg (in case of unaccepted returnees,
debriefing with the monitor may take place upon arrival in the country of
departure)

Monitors shall participate in the debriefings of the EL, escorts and other participants, as
applicable. They shall note who was present, when and where the debriefing was held, and
provide a brief account of the main findings/observations to the EL, in particular when an
incident is to be reported. The monitor shall inform the EL about any incidents that they
will mention in the report. Feedback from the EL, if any, shall be mentioned objectively
in the monitoring report. The de-briefing is normally conducted during the return leg on
board ofthe means oftransportation. The de-briefing may also take place following arrival
in the country of departure.

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Step 3. Handover of unaccepted returnees to the authorities back in the
country of departure (JRO: hub) - if applicable

In cases where handover of unaccepted returnees back in the country of departure occurs,
the monitor should observe this phase as described in detail in Step 2 of the arrival phase
(handover to the authorities in the country of return) above.

3.8 Collecting return operations (CROs)

As mentioned above, CROs include only a pre-departure phase and one or several in-flight
phases. The handover of the returnees to the authorities of the country of return is al-
ready done during the pre-departure phase. Duringa CRO the debriefing takes place after
the arrivalinthe country ofreturn either atthe airport orin a designated area. In case of sev-
eral countries of return, there are several in-flight phases. The monitoring tasks as described
inthe steps above in the pre-departure and in-flight phases are also applicable for CROs.

3.9 Monitoring specific incidents
In relation to a specific incident, the following details should be taken note of;

* Description of facts e.g. what happened during the incident (including location and
time);

* Therole of each person in the incident,;

* Whetherthe actions were proportional, necessary, and accountable and the basis for
that assessment;

+ Whatfactorstriggered the incident;
+ What could be done to address concerns; and
+ What activities were performed well and by whom, e.g. escort, EL, returnee, etc.

According to the Code of Conduct for Return Operations and Return Interventions coordi-
nated or organised by Frontex, individuals participating in Frontex coordinated activities
are required to report any incidents involving suspected or alleged violations of fundamen-
tal rights or of the Frontex CoCs via the appropriate reporting channel, for example via the
Frontex Serious Incident Reporting (SIR) system.“3 This system is usually used by escorts to
report any incident of a sensitive or public interest nature, including any fundamental rights
violations, as defined in the JRO Implementation Plan. Itis crucial to ensure reporting of inci-
dents, because the evaluation of such reports helps Frontex to adapt future JROs.'*

143 Frontex Guide for JROs, p. 12.
144 Frontex Guide for JROs, p. 17.

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3.10 Monitoring the use of force and means of restraint

The monitor must take particularly careful notes each time force or means of restraint are
applied on a returnee. This concerns both when means of restraint or force are applied for
the first time, or needs to be applied additionally during the operation, following a previous
incident; oran additional means of restraints is applied following one already applied, or, the
same means of restraint is re-applied to the same returnee. Each and every time force or a
means of restraint is used this should be documented.

Any use offorce should be based on an individual risk assessment and should be re-evaluated
bythe escortsthroughout the forced-return operation based on a dynamic risk assessment.
The monitor should observe this and should note when and what type ofrestraint was used
and for how long. The monitor should also note information on the effects of the method
used on the returnee.

This is important as the monitor will have to fill in a separate form for each instance in the
monitoring report (for more specific information please refer to Chapter 4 covering report-
ing). The monitor should request information, including details about the measures applied,
from the escort at an appropriate time. The monitor should also take notes of any positive
handling of a situation, which might help to establish good practices.

To properly assess the legality of the use of force, it is necessary that the monitor is con-
versant with the different types of restraint measures allowed by the national legal frame-
work's,. Monitors should ideally experience their practical application/implementation as
part of their training in order to be knowledgeable on various techniques and their appli-
cation. The monitor's role is to check the use of a given restraint, their impact, applied du-
ration, whether or not it is based on a risk-assessment or a situation arising in accordance
with, or in excess of, what is prescribed.

3.11 Role of escorts, escort leaders, back-up team and Frontex
representative

Escorts are the law enforcement officers/security personnel responsible for accompanying
third-country nationals being forcibly returned. Escorts execute a return decision taken by
the competent state authorities. Each (national) group of escorts has an EL in charge of
managing the (respective national) group of escorts.'*The role of an escort isto ensure and
enforce the return of the respective returnees in a safe and humane manner and according
to the relevant national legal framework and where operations are coordinated by Frontex,
according to both Frontex CoCs.

Escorts are usually provided bythe OMS and the PMS, but there is also the possibilitythat a
MS request escorts from the Pool of Forced-Return Escorts, created bythe EBCG Regulation
and approved by Frontex Management Board Decision, where a profile is defined.

145 Priorto areturn operation, the respective National Country Factsheet ofthe requesting Member State shall
be consulted. This Factsheet contains information regarding the national return procedures, permitted means of
restraint, and relevant information on the national monitoring, as well as complaint mechanisms.

146 Theallocation oftherole of ELs and the ratio of escorts per escort leader differs amongst Member States. For ex-
ample, it might be one EL per fivereturnees or one escort leader per group of escorts for a returnee/family, etc. During
a)RO, each national team (even though it might have more than one EL present) appoints one EL with the function of
a”contact point" forthe head of operation.

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The back-up team is a group of escorts not assigned to a specific returnee/family, but act-
ing as support to the escorts of both OMS and PMSt(s) (i.e. assisting if necessary during vio-
lent incidents, or during lavatory procedures, etc.). The employment of a back-up team and
theirnumber of escorts during NROs differs among Member States. In practicenumbers are
considered based on various factors, such as the information from the risk assessment, the
number ofreturnees on board, the travel time, and any other possible difficulties that might
be encountered. During a JRO, the OMS is responsible for providing an appropriate escort
back-up team. The PMSs may also provide their own back-up team, if necessary.

It is important that escorts are respectful of the returnees at all times. It is their responsi-
bility to apply necessary safety measures, when required, to enable the removal and, atthe
sametime, to ensurethatthereturnees posesno danger to themselves or other participants
ofthe return operation.

3.11.12 Main tasks of escorts
The main tasks of escorts include;

* Implementing/enforcing the return operation in line with the respective national leg-
islation, applicable fundamental rights and codes of conduct in place;

+ Guaranteeing the safety oftheirassigned returnees and participants ofthe forced-re-
turn operation, including the (proportional) use offorceasalast resort;

+ Theprovision of allrelevant information on the planned removal ofthereturnees priorto
their return, including the information that thereturn operation willrun smootherifthe
returnee co-operates, andthatifthey do not co-operate, their removal will be enforced;

* Conducting risk assessments on the co-operation of returnees and sharing of that
information/assessment with relevant participants of the forced-return operation
during the briefing;

* Following and implementing the security and surveillance plan on board the aircraft
defined by the head of operation of the OMS (movements within the cabin, meals,
etc.);*

* The provision of all relevant information (technicalities, procedures, Implementation
Plan, seating plan, etc.) to all participants of a return operation during the briefing;
and

+ In co-operation with the EL, ensure the handover of the returnees to the respective
national authorities in the country of return.

During the return operation, the escorts have to ensure the returnees’ safety as well as the
safety ofthe other participants. If necessary, they are authorised to apply force to carry out
the return, butthe desired strategy is one of de-escalation and calming of any situation. Es-
corts are specifically trained for such scenarios. It isthe duty of escorts to communicate im-
portant facts (i.e. self-harm, obstructive behaviour, etc.)to the EL (JRO: head of operation).
In addition, escorts should assist the returnees where necessary.

147 Common Guidelines, Annex ofthe 2004 Council decision on joint removal: 3.1. (Council of Europe 2004: 6).

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The number of escorts accompanying the return will depend on the risk assessment con-
ducted. The practice differsamongst Member States. Ifafemaleisto bereturned, itisrecom-
mended that at least one woman should be part ofthe escort team. The same applies in the
case of minors (especially if no guardian accompanies the minor) or families to be returned.

It is important to note that while escorts are allowed to use force and necessary means of
restraint (proportionally and not exceeding reasonable force), "returnees should be briefed
regarding the enforcement of their removal and advised that it isin their interest to cooper-
ate fully with the escorts. It should be made clear that any disruptive behaviour will not be
tolerated and will not lead to the aborting ofthe removal operation”.'®

3.11.2 Special tasks of the escort leader

The term"escort leader” (EL) refers to the escorts who are, in accordance with the instruc-
tions given, in charge of managing a national group of escorts during a JRO. Each OMS and
PMS appoints its own EL.“° Each PMS appoints one EL who as head oftheir national delega-
tion is also the main contact person for the head of the whole operation. The national EL is
also the one that shares information, participates in briefings, etc.

One EL is always the head of operation. The term"head of operation" refers to the person
appointed bythe OMS as having the overall responsibility for the JRO. Where no particular
person is appointed, the EL ofthe OMS is to be considered as the head of the JRO."° The
head of operation (or OMS EL) may decide upon the necessary termination of a forced-re-
turn operation.

After the return operation, the EL is to provide a written report to the authority that
ordered the return. It must include information on the use of force (reason, techniques ap-
plied, and duration) as well as any other incidents that occurred. In case of an investigation
and/or any findings of wrongdoing, the usual disciplinary procedures as for other law en-
forcement officers apply to escorts.

3.11.3 Skills required by escorts

In the majority of Member States, escorts are law enforcement officers who have been sub-
ject to standard law enforcement training. Escortsthen receive additional, specialised train-
ing to fulfil their specific duties. In some countries, they form part of a special unit. In other
countries, however, the escorts are from private security companies, which the State engag-
es for these specific tasks.'s' There is no unified approach to the selection and training of es-
corts across the Member States. However, Frontex provides uniform EL training and escort
training to both Member States and third-countries (for CROs). In most countries escorts
receive specific training aimed at meeting the requirements of escorting individuals during
forced-returns and often benefit from on-going training.

148 2.1(b) ofthe Annex ofthe 2004 Council decision on joint removal. (Council of Europe 2004: 5)

149 Article 3(h) ofthe Code of Conduct for Return Operations and Return Interventions Coordinated or Organised by
Frontex.

150 Article 3(j) ofthe Code of Conduct for Return Operations and Return Interventions Coordinated or Organised by
Frontex.

151 Inthe UK, escorts come from private security companies and are not law enforcement officers. They are, howev-
er, specifically trained and authorised to use force, and are accompanied by one law enforcement officer in charge.

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Overall, escorts should receive relevant training, amongst others things, related to:

+ Regular practical exercise on the use of force and means of restrain, including mitiga-
tion ofrisks related to this (e.g. positional asphyxia syndrome'®);

* Legal training including on fundamental rights;

+ De-escalation strategies;

+ Emergency procedures on board an aircraft (and/or other means of transport); and
+ First-aid training.

In relation to "soft-skills" required by escorts, their behaviour should be calm, patient, po-
lite, non-discriminatory, and respectful. Knowledge of foreign languages is not a must but
always considered an asset among escorts. During JROs coordinated by Frontex, ELs should
at least possess sufficient knowledge of English, as briefings are usually held in English. Ar-
ticle 14 ofthe Code of Conduct for Return Operations and Return Interventions Coordinated
or Organised by Frontex further establishes the obligation that the OMS provides suitable
interpreters during the JRO based on an assessment ofthe returnees’ needs and escorts’ lan-
guage skills.

3.12 Pre-departure phase

During the pre-departure phasethe escort team is briefed whilethereturnee(s) may stayina
holding/waiting/detention facility at the place of embarkation. Respective national escorts
will search each returnee thoroughly (in accordance with the national law) before leaving
the Member State of first departure and before boarding.

Before the embarkation of the joint flight, the PMS EL and other relevant JRO participants
willattend an operational briefing organised bythe OMS EL. The briefing point and time will
be determined by the OMS's EL in due time. The OMS EL discusses the latest updates includ-
ing the passengerlists, seating plan, boarding and in-flight procedures, arrival phaseandthe
security, including the use of coercive measures. Each PMS EL providesthe OMSELwith the
information on the current mental and physical state of the returnees. The PMS ELs should
subsequently brief their escorts with this latest information. A separate briefing is conduct-
ed by the organiser of theJRO with the cockpit and the cabin crew.

During the pre-departure phase, special attention should also be paid to valuable personal
belongings and baggage of the returnees.

152 This isa form of asphyxia which occurs when someone's position prevents him/her from breathing adequately.
A small but significant number of people die suddenly and without apparent reason during restraint by police, prison
(corrections) officers, and health care staff. Positional asphyxia may be factor in some ofthese deaths.

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Embarkation

+ The cabin of the aircraft is thoroughly searched by the back-up team for any danger-
ous items prior to embarkation;

+ Boarding takes place in a secure area. Escorts and returnees are seated as directed by
the OMS escorts. Pregnant women (single or with families) and families with children
are enabledtoboardtheaircraftseparately and are seated separately from other return-
ees. The seating plan is distributed during the operational briefing before the departure;

+ Emergency exit rows are not to be utilised for seating of returnees; and
* Once on board, all passengers take their seats and remain seated.
3.13 The in-flight phase

The in-flight phase starts with the closure of the doors of the means of transportation (e.g.
aircraft, bus, train, ship) used for the removal and ends with the arrival at the final destina-
tion, including the transit via another country.

All escorts (including ELs and head of operation) ensure the safety oftheirreturneesandthat
of other participants oftheforced-return operation. During the in-flight phase:

+ No member leaves their designated returnee unless relieved by another escort or bya
back-up team member;

+ Any movement of a returnee from a seat is granted according to the rules set during
the operational briefing; and

+ Toilet(s) for the sole use of returnees are designated and clearly labelled. Only one
escorted returnee at the time is permitted to move on board in order to access the
toilet. Escorts are advised to block the toilet door open (i.e. keep it ajar) in order to
observe so that the returnee does not inflict any self-harm.

During this phase a security back-up team may operate in the aircraft. This team isolates
and deals with any issues/incidents as instructed bythe Escort Leader, as well as securing
the exit doors. All relevant incidents during this phase have to be brought to the attention
ofthe OMSEL.

3.14 Stopover

After arrival of the aircraft at the stopover airport, the OMS EL meets with a representative
of the stopover Member State.

+ TheoOMSELandthePMSELsembark atthe stopover. The OMSELleads an operation-
al briefing with the same participants as during the one organised before departure.
The PMS ELs should subsequently brief their escorts with this latest information;

+ Asthe power is exercised by the authorities of the Member State where the stopover
takes place, the boarding procedure and the use of force are under the responsibility
ofthe stopover Member State, who assists other PMSs in embarking, if needed; and

FORCED-RETURN MONITORING » Background Readeı

+ Other participants remain on board the main aircraft.
3.15 Arrival phase

Thearrival phase coversthe period starting from arrival atthe country ofreturn and ending af-
terthereturnee(s) have been handed overtothe national authoritiesinthe country ofreturn.

* \Whentheaircraft comesto.astop anda complete standstill at the final parking posi-
tion any restraint should be removed from the returnees;

+ Atthis point, they are handed back their personal belongings, which were transport-
edin the cabin;

* The OMS EL makes the first contact with the representative of the country of return
in order to prepare the hand-over;

* The OMS EL and the EL of each PMS meet relevant representatives of the country of
return and hand over the travel documents and other relevant documentation, while

presenting the returnees;

+ Baggage in the hold is offloaded; and

+

The OMSEEL informs the PMS ELs about the necessity to disembark the aircraft or not,
eitherfor a planned overnight stay orfor administrative ortechnicalreasons.

3.16 Return phase

Inthe case any returnee is refused readmission to the country of return, the escort team
escorts the returnees back until the place of departure. As mentioned above, this phase is
then also monitored. The debriefing is normally conducted during the return phase, with all
the relevant JRO participants, in particular the ELs, the back-up team leader, the monitor
andthe Frontex representative. The debriefing can also take place back atthe hub/country o
departure. AllPMSELs and the OMS EL are respectfully asked to complete a"JRO Debriefing
Form”. The feedback provided in the forms is utilised during the debriefing and by Frontex for
the Final Return Operation Report.

For CROs, the pre-departure and the hand-over, and in-flight phases are applicable.
3.17 Use of force and means of restraints'®

The Twenty Guidelines on forced-returns recommends that in order to limit the use offorce,
all individuals involved as well as the competent authorities should seek the cooperation of
returnees at all stages of the return process.'“ This principle is also included in Article 6 of
the Code of Conduct for Return Operations and Return Interventions coordinated or organ-
ised by Frontex. Information about possible hunger strikes, self-injurious behaviour, threats
against escorts, or actions taken to abort a forced-return operation must be taken into ac-
count, even though this information does not automatically justify using force or means of
restraint in a preventive manner.

153 Compare with Common Guidelines in the Annex ofthe 2004 Council decision on joint removal (Council of Europe
2004: 4).
154 Twenty Guidelines on Forced-Returns, Council of Europe, 2005, Guideline ı5.

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Means of restraint can thus be applied to safeguard the health and safety of the returnee,
of escorts, other participants (including monitors, crew and support staff, or other passen-
gers), and property. However, inthe case ofthe use offorce, all reasonable efforts must first
be made to manage violent,'s recalcitrant,'° or disturbed behaviour by persuasion or other
means that do not entail the use of restraint. The use of arestraint technique should only be
considered when all other practical means of managing the situation, such as de-escalation,
verbal persuasion, and voluntary'time out‘, havefailed or arejudged bythe escort to be likely
to fail in the circumstances.

When restraint is necessary, only authorised restraining techniques and material are to be
employed. Nonetheless, in these situations, proportionality, necessity, and accountability
are paramount to make the use of force justifiable. Additionally, the dignity, privacy, cultural
values, and any special needs of the person being returned should always be considered as
far as possible. Sometimes force may be necessary in order to applythe authorised means of
restraint. The restrictive space of a carrier (aircraft, ship, train, bus) may restrictthe range of
alternatives available to escorts. The monitor must observe carefullyand be ableto make an
objective judgement to be reflected in their report. It is highly recommended that the moni-
tors, when in doubt, talktothe ELto understandthe escorts account forthe use offorce and
the measures applied after the incident is over.

Article 7 ofthe Code of Conduct for Return Operations and Return Interventions coordinat-
ed or organised by Frontex, covers the use of coercive measures, establishing the following
standards to be applied during aJRO:

1. Theuse of coercive measures must be legal, necessary and proportional, not exceed-
ing reasonable force, and with due respect to the returnee's rights, dignity and their
physical integrity. The use of coercive measurestakes appropriate account of theindi-
vidual circumstances of each person, such as their vulnerable condition;

2. Coercive measures may be used only when strictly necessary on returnees who refuse
orresistremoval orinresponseto an immediate and seriousrisk ofthereturnee escap-
ing, causing injury to themselves orto athird party, or causing damage to property;

3.  Coercive measures likely to compromise or threaten the possibility of the returnees
to breathe normally are prohibited. The relevant escort leader periodically reviewsthe
continuing necessity and proportionality of deploying coercive measures, and par-
ticularly of applying means of restraint, when these are used for prolonged periods,
based on a dynamic risk assessment;

4. TheOMS and Frontex provide for alist of authorised restraintsin the operational doc-
uments in advance ofthe RO or Ri. Where applicable, this list must be distributed to
the relevant PMSs priortothe RO or RI. The use of sedatives to facilitate the removal
is forbidden without prejudice to emergency measures under medical supervision to
ensure flight security;

155 Violent/violence is understood as’Any incident in which a person is abused, threatened, or assaulted. This includes an
explicit or implicit challenge to their safety, well-being, or health. The resulting harm may be physical, emotional or psychological.'
(HM Prison Service Prison Service Order 2750, London: NOMS, 2007).

156 Obstinate and uncooperative attitude towards authority or discipline.