A tragic death in a hostile environment
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Marc Bloomfield
Description: Immigration
Olivia Anness and Christina Bodenes summarise important points raised by the inquest into the death of asylum-seeker Mustafa Dawood.1The authors, along with Jamie Burton QC of Doughty Street Chambers, represent the family of Mustafa Dawood.
On 1–5 November 2021, Caroline Saunders, HM senior coroner for Gwent, heard the inquest into the death of Mustafa Dawood. Mustafa had died on 30 June 2018 while being pursued by Home Office immigration officers as part of an enforcement visit (otherwise known as an immigration raid) made to a car wash in Newport, where he was working at the time. The case highlights a number of issues with Home Office practice and policy in respect of raids and pursuit in this context. It is also a stark reminder of the fear that Home Office raids can inspire and the complexity of issues that the hostile environment inflicts on our communities.
Facts giving rise to the death
Mustafa fled Sudan in 2015, having been persecuted by the authorities as a member of the minority Zaghawa tribe, and arrived in the UK. The Home Office refused his asylum claim as it was not accepted that he was Zaghawa, and in 2017 he was moved to Newport by the Home Office, where he continued to try to pursue his asylum claim with the help of the Zaghawa community.
Only two months before Mustafa died, in April 2018, his asylum support was wrongly stopped by the Home Office. As asylum-seekers are not allowed to work in the UK, asylum support is an essential safety net in preventing people from falling into destitution. Mustafa therefore had to appeal against this decision at the First-tier Tribunal (Asylum Support), where it was found that the support had been wrongly stopped, and the tribunal mandated that it be reinstated. It is perhaps unsurprising, therefore, that Mustafa started working at Shaftesbury Hand Car Wash in Newport at around this time.
On 30 June 2018, Mustafa was working at the car wash when four Home Office immigration officers arrived in a Home Office van, acting on intelligence that there were foreign nationals working there without permission. Evidence at the inquest confirmed that Mustafa was never going to be arrested, was not removable from the UK, and that the primary aim of the visit was to issue a civil penalty to the owner for employing individuals without the right to work. Immigration officers confirmed that the most they would have done was told those working illegally to go home.
The immigration officer in charge (OIC) approached Mustafa to ask where his boss was, and Mustafa ran into a large warehouse behind the car wash. At this point, the OIC decided to pursue Mustafa with the aim of arresting him pursuant to powers in Immigration Act 1971 Sch 2, and ran into the warehouse after him. The other immigration officers were informed that there was a ‘runner’ and joined the pursuit. The warehouse contained heavy machinery, and Mustafa dangerously started to climb up onto shelving in the warehouse and into the rafters. Officers stated that Mustafa looked very afraid and desperate. At this point, the OIC claimed to have halted the pursuit on the basis that it was too dangerous; however, this was not communicated to the other officers.
Mustafa climbed to the top of the warehouse and onto the roof outside. At this point, an immigration officer on the ground below ran towards the warehouse with his baton drawn. Mustafa ran across the roof and disappeared from view. Tragically, he fell through the roof of the warehouse and suffered brain injuries. Officers eventually found Mustafa (who had fallen into a locked room) and attempted CPR; however, he later died of his injuries.
Inquest procedure
Mustafa’s death was initially investigated by the Independent Office for Police Conduct (IOPC). The IOPC has the power to investigate the Home Office, as it does the police, under the UK Border Agency (Complaints and Misconduct) Regulations 2010 SI No 782. The IOPC found that the officers on the day did not have a good understanding of their pursuit powers in circumstances where they did not have a warrant and were relying on the consent of the owner of the property to allow them to be there. The IOPC also found that, concerningly, the Home Office was not conducting tailored written risk assessments (considering the specifics of the premises, the powers that would be used during the visit, contingencies, safeguarding, or whether pursuit was appropriate) prior to conducting enforcement visits. Further, the IOPC found that there had been no first aid kit in the Home Office van, and that senior staff at Immigration Enforcement were not providing officers on the ground with as much proactive direction as was required during a crisis incident of this kind. The IOPC made a number of recommendations on that basis, which were accepted by the Home Office.2Recommendations made for improvements to Immigration Enforcement visits following investigation into death of Mustafa Dawood’, IOPC news article, 5 November 2021.
The inquest process recommenced after the conclusion of the IOPC investigation and one of the initial applications made by the Home Office was for its officers to be anonymised during the proceedings. Anonymity applications are, unfortunately, regularly made by the police during inquest proceedings and it was notable that the Home Office attempted to do the same in this case (and, in its submissions, rely on the fact that police are regularly anonymised to justify its application). Mustafa’s family strongly objected to the application and the coroner, with reference to Sir Peter Thornton QC’s introductory note in the Birmingham pub bombings inquests, rejected it on the basis of the fundamental principle of open justice and the lack of specificity in the Home Office’s claims that its officers were possibly at risk from members of the public. The coroner noted that anonymity couldn’t be justified on the basis of speculation that risk might arise and noted that this was not a covert operation; in fact, the officers were already visually identifiable.
The coroner found that article 2 of the European Convention on Human Rights was engaged, and that a jury was mandatory pursuant to Coroners and Justice Act 2009 s7(4)(c) as it was a reportable death at work, but that it was also sufficiently similar to conditions set out in s7(2)(b) (which mandates a jury if there’s reason to suspect the death resulted from an act or omission of a police officer) to justify a jury in any event.
The coroner determined that the inquest would examine: the planning and execution of the raid; the policies, the guidance and training of the staff involved; and the circumstances of the raid on the day. However, she determined that the fact of Mustafa’s asylum support being unlawfully stopped by the Home Office shortly before his death was not within the scope of the inquest. Similarly, the inquest could not examine the Home Office’s refusal of his asylum claim, the fact that immigration officers are allowed to pursue people at all, or the decision to refuse asylum-seekers the right to work. This exemplifies some of the structural difficulties in trying to examine the hostile environment within the inquest context: hostile environment factors are, unfortunately, often considered by coroners to be too remote from the death itself to have a bearing on the proceedings.
Inquest findings
After a week of evidence, the coroner determined that a narrative conclusion should be returned, and that she would exercise her discretion to allow the jury to consider both probable and possible causes of death. The jury’s conclusion identified four factors that possibly contributed to Mustafa’s death:
1During the pursuit, Mustafa started to climb and it was determined that the pursuit should be abandoned. Nonetheless, officers remained in relatively close proximity and did not withdraw to a distance away from him.
2The decision to abandon the pursuit was not effectively communicated to all officers.
3The decision of the officer who encountered Mustafa while he was climbing the outside of the warehouse to keep his baton racked.
4The officers were not appropriately trained in pursuit procedures.
In making those findings, the jury had considered evidence from the immigration officers themselves, and senior Home Office staff in charge of policy and practice. The following factors were notable in the evidence:
Home Office pursuit policy was embedded into its Arrest and restraint guidance (12 July 2016), which states that ‘[i]f the suspect places themselves in danger (for example climbing onto a roof, crossing a railway line or motorway), you must cease the pursuit and inform the local police control room … If you consider the safety of the suspect … is in danger during a pursuit, you must abandon the pursuit immediately’.3This is also in the current version of the guidance at pages 16–17. However, the policy was silent on the practical steps an officer must take to effectively abandon pursuit. In this case, the OIC gave evidence that when Mustafa began to climb, the danger of the situation became apparent to him and he abandoned the pursuit; however, he did not communicate his decision to the rest of the team. The OIC thought that he was following Mustafa for safeguarding reasons, whereas the rest of the team thought the pursuit (with the aim of arrest) was continuing. This was a serious omission.
While the Critical incident management policy (24 April 2017) confirmed that ‘the first priority for Home Office [and] Immigration Enforcement (IE) … is to work with other agencies and support the emergency services in their endeavour to preserve life’, it was silent on how officers should demonstrate to the person involved that the pursuit has actually been abandoned. This remains the case in the version of the policy currently in force (25 August 2021). How does a person know that they are no longer being pursued if immigration officers are continuing to follow them? The officers giving evidence had no answer to this and it was clear that they had no training or direction from the Home Office on what they were supposed to do. Some said they could not walk away when Mustafa was in danger; others said that they should have. In fact, during evidence, it became apparent that had the officers withdrawn, to demonstrate to Mustafa that he was no longer being pursued, there were two opportunities where he could have safely climbed down (via a ladder-type structure and a low roof).
Using a baton is a use of force and it was not justified in circumstances where Mustafa was already dangerously climbing onto a high roof. The officer who racked his baton gave concerning evidence that Mustafa might have been experiencing excited delirium (also known as acute behavioural disturbance (ABD)) or might have had a weapon and therefore wanted to ‘dominate the area’. There was no evidence to suggest that Mustafa had ABD or a weapon. It is notable that ABD is medically controversial, as it is often seen to carry racial bias and used to justify excessive use of force by police against black men. Further, the construction of Mustafa’s desperation not to be arrested and returned to Sudan as most likely ABD is symptomatic of a wider lack of understanding by the Home Office of many asylum-seekers’ valid fear of being returned to countries where they will be persecuted.
It was a matter of real concern to Mustafa’s family, and the coroner, that the Home Office confirmed in evidence that immigration officers do not receive specific training on pursuit. On 19 November 2021, the coroner issued a prevention of future deaths report on this point. The family now look to the Home Office to put in place systems that ensure that immigration officers are properly equipped to deal with these types of critical incidents in the future, in order to prevent any other tragic deaths like Mustafa’s.
 
1     The authors, along with Jamie Burton QC of Doughty Street Chambers, represent the family of Mustafa Dawood. »
3     This is also in the current version of the guidance at pages 16–17. »

About the author(s)

Description: Olivia Anness
Olivia Anness is a solicitor at Bhatt Murphy.
Description: Christina Bodenes - author
Christina Bodenes is a trainee solicitor at Bhatt Murphy.