Wamala v The Home Office & Anor

On the 26^th March 2014 Mitting J ordered that the trial listed in the trial window commencing on the 12^th May 2014 in which the claimant was bringing an action against the defendants be adjourned and the trial window be vacated. The hearing was to be used to hear a preliminary issue to deal with

“Whether or not there was lawful justification for the use of force to convey the claimant to Heathrow Airport or to put him on or remove him from Qatar Airways flight QR2 to Doha on the 24^th December 2011.”

The first defendant and the claimant were ordered to file skeleton arguments. The first and second defendants were granted permission to rely upon the witness statement of Michelle Payne dated 18^th March 2014 and to call her to give oral evidence if so advised. It was not anticipated that the second defendant would play an active part in the proceedings on the preliminary issue.

The parties complied with those directions and appeared before me on the 14^th May 2014. By that time the second defendant was represented by Lord Marks QC, who also filed a skeleton argument and sought leave to amend the second defendant’s defence. I will return to the issue of pleadings later.

The hearing on the 28^th March 2014 was an appeal from a case management decision of Master Cook on the 20^th January 2014. I was told that the idea of a preliminary issue originated with Mitting J. It was not one that was raised by the parties or that they had come prepared to argue at the hearing of the appeal. I was told that the issue was primarily one of law. I was expressly asked not to embark on any fact finding exercise which would take place at the substantive hearing. Nevertheless, to set the background of the hearing before me it is necessary to outline some of the material facts so that the issue can be placed in context. I emphasise that the following is only a summary of the facts.

The claimant is a citizen of Uganda. He was born on the 10^th December 1970. He entered the UK in a clandestine manner in 1995. He made a claim for asylum but before that could be determined was arrested for a Class A drug offence and sentenced to a term of 7 years imprisonment.

On the 10^th February 1997 the claimant was served with a signed deportation order.

On the 4^th July 1999 the claimant was deported to Uganda. He returned unlawfully a few weeks later on the 23^rd July 1999. In 2006 the claimant was encountered by the first defendant and arrested. He was served with notice IS151 as an illegal entrant. He remained in the United Kingdom.

He next came to the attention of the authorities on the 18^th July 2010 when he was arrested for shoplifting. He was subsequently convicted of that offence and of failing to surrender to custody. He made a further claim for asylum which was dismissed as was a claim to revoke his deportation order. Permission to appeal was refused by the First-Tier Tribunal on the 6^th July 2011. Bail was refused on the 29^th July 2011 by Clive Lewis QC (as he then was) on the basis that the claimant posed, “a very high risk of absconding.” Permission to appeal was refused by the Upper Tribunal on the 22^nd November 2011.

On the 16^th August 2011 Charles George QC dismissed an application for Judicial Review in which the claimant sought to challenge his removal and detention. The court found that the claim was totally without merit. A renewed oral application was refused by Clive Lewis QC on the 6^th December 2011.

On the 14^th December 2011 the UKBA issued removal directions to the aircraft MS778 and named the claimant, Felix Wamala. The removal direction is in conventional form and states that it is issued under schedule 2 of the Immigration Act 1971/ Section 10 of the Immigration and Asylum Act 1999. It reads,

“The Secretary of State hereby directs you to remove the above named person from the United Kingdom by MS778 to Cairo at 14:00 hours on the 24^th December 2011 connecting on to MS837 at 21:45 on the 24^th December 2011...I have directed that the person named above be placed aboard your ship/aircraft and I require you to prevent him from disembarking in the United Kingdom or before the directions for removal have been fulfilled. For this purpose the captain of the ship/aircraft may detain the above named illegal entrant on board.”

Four escorts were named on the form to accompany the claimant. At 16:18 on the 14^th December Carlson Wagonlit, a travel agency, sent an email to the first defendant and second defendant advising that the itinerary had been changed. The flight would now be on a Qatar Airways plane at a later departure time. The email explained that the original EgyptAir flight no longer had available seats and the new itinerary was a more cost effective option.

The claimant was booked on flight QR002 departing at 20:30 on 24^th December from London Heathrow and proceeding via Doha rather than Cairo. No revised removal directions were issued.

On the 15^th December the claimant served further representations under Article 8 of the ECHR. Form IS151D was faxed to the claimant’s solicitors at 12:34 on the 15^th December notifying them of the claimant’s removal. They were informed that the claimant was to be removed on flight MS778.

On the 23^rd of December the claimant’s MP wrote seeking deferral of the claimant’s removal pending consideration of his Article 8 representations. On the same day the claimant issued a further claim for Judicial Review challenging his removal.

Later that day the Court of Appeal refused the claimant’s application for permission to appeal against the decision of the Administrative Court dated 6^th December on the basis that his application was totally without merit. In its observations the Court of Appeal said,

“The claim for Judicial Review which is formally in respect of the decision to detain the claimant pending deportation but also informally seeks to raise anew all the asylum and Human Rights decisions which have been concluded against him is totally without merit for all the reasons referred to herein.”

After receipt of that document the UKBA wrote to the claimant and notified him of the Court of Appeal’s decision. The letter continued,

“You will know that you are being removed to Uganda on the 24^th December 2011 at 14:00 hours.”

It informed the claimant that the UKBA was not prepared to defer the directions that were in place for his removal. The UKBA served Reliance Escorts, the second defendant, with an immigration detainee/movement notification Form IS278 for removal of the claimant from Brook House IRC to Heathrow TN3. That contained typed details of the departure date and time as the 24^th December at 14:00 hours destination- Uganda and flight number MS778. Both the time and flight number were struck through and manually amended to read 20:30 and QR 2 respectively. There is a dispute between the first and second defendant as to who carried out that amendment.

On the 24^th December 2011 the claimant was taken to a reception area at Brook House Immigration centre where he was handed over to employees of the second defendant. He was placed into an escort van and driven to Heathrow. Events thereafter are the subject of dispute. The claimant alleges that the officers of the second defendant used force and threatened force to get him onto the Qatar flight. When on the flight the claimant informed the cabin crew that he was being unlawfully removed against his will. He asked to speak to the Captain to object to his removal. He claims that provoked an assault from the officers of the second defendant during the course of which he sustained injuries. His removal was aborted. He was carried back to the escort van when he says that he was dropped. He has suffered from a back injury, post-traumatic stress disorder and depression subsequently. The factual events will need to be resolved at a subsequent hearing.

A further claim for judicial review was issued in May 2012. The current proceedings claiming damages for assault were started in October 2012 under reference HQ12 X04 287. In March 2013 the judicial review claim was resolved on the basis that the claimant would not be removed until his claim for damages was substantively concluded.

Under paragraph 9 of Schedule 2 of the Immigration Act 1971 an immigration officer may give such directions in respect of an illegal entrant not given leave to enter or remain as may be given under paragraph 8 (1). Paragraph 8 (1) authorises an immigration officer to give directions to, amongst others, a Captain of a specified aircraft to remove an illegal entrant from the United Kingdom to a specified country.

Under paragraph 11 of schedule 2,

“A person in respect of whom directions are given under any of paragraphs 8-10 above may be placed, under the authority of an immigration officer, on board any ship or Aircraft in which he is to be removed in accordance with the directions.”

An immigration officer exercising any power conferred by the 1971 Act,

“May, if necessary, use reasonable force”: section 146 Immigration and Asylum Act 1999.

The Secretary of State has power to delegate her escort functions to independent contractors under the Immigration and Asylum Act 1999. Under section 154 the Secretary of State may certify that certain persons are fit to perform escort or escorting custodial functions. Any person to whom such a certificate has been issued is referred to as a detainee custody officer for the purpose of the 1971 Act. Section 156 empowers the Secretary of State to make escort arrangements. The relevant parts read as follows:

“156 Arrangements for the provision of escorts and custody.”

(1)The Secretary of State may make arrangements for—

(a)the delivery of detained persons to premises in which they may lawfully be detained;

(b)the delivery of persons from any such premises for the purposes of their removal from the United Kingdom in accordance with directions given under the 1971 Act or this Act;

(c)the custody of detained persons who are temporarily outside such premises;…

(4)Escort arrangements may include entering into contracts with other persons for the provision by them of—

(a)detainee custody officers; or

(b)prisoner custody officers who are certified under section 89 of the Criminal Justice Act 1991, or section 114 or 122 of the M1Criminal Justice and Public Order Act 1994, to perform escort functions.

(5)Schedule 13 makes further provision about escort arrangements.”

Schedule 13 of the Act is entitled Escort Arrangements. Paragraph 1(1) provides that there must be an escort monitor. Their duties are specified in paragraph 1(2). Paragraph 2 is headed powers and duties of detainee custody officers. It reads where relevant,

“Powers and duties of detainee custody officers

2(1) A detainee custody officer acting in accordance with escort arrangements has power—

(a)to search (in accordance with rules made by the Secretary of State) any detained person for whose delivery or custody the officer is responsible in accordance with the arrangements; and

(b)to search any other person who is in, or is seeking to enter, any place where any such detained person is or is to be held, and any article in the possession of such a person.

(3)As respects a detained person for whose delivery or custody he is responsible in accordance with escort arrangements, it is the duty of a detainee custody officer—

(a)to prevent that person’s escape from lawful custody;

(b)to prevent, or detect and report on, the commission or attempted commission by him of other unlawful acts;

(c)to ensure good order and discipline on his part; and

(d)to attend to his wellbeing.

(4)The Secretary of State may make rules with respect to the performance by detainee custody officers of their duty under sub-paragraph (3)(d).

(5)The powers conferred by sub-paragraph (1), and the powers arising by virtue of sub-paragraph (3), include power to use reasonable force where necessary.”

The claimant seeks:

The claimant vehemently opposes the application by the second defendant to amend his defence on the basis that it would be unconscionable to allow such an amendment at this stage. No suggestion of any amendment was made before Mitting J who was clearly influenced by the second defendant’s pleaded case. There is no application before the court to amend the pleadings. There is no evidence in support. In any event it is a withdrawal of an admission by the second defendant and, therefore, a change to a very central part of the second defendant’s case. Proceedings are advanced, disclosure has been undertaken and medical evidence is in hand.

On the preliminary issue the claimant submits that the burden is on the second defendant to establish that there is lawful authority for her actions. As a basic principle express words are required to authorise a tort. The only express words are those contained in paragraph 11 of schedule 2 to the 1971 Act. That was considered in R v Immigration Officer ex parte Shah [1982] QB 544 at 548 letters F-G. That says

“The [removal] direction is not merely a means of notifying British Airways of their obligation but is a part, and an important part, of the machinery provided in the Immigration Act for removing persons who are refused leave to enter and unlawful immigrants.

Paragraph 11 of Schedule 2 is a most important provision, since without it the immigration officer would not be able to place the immigrant on board a ship or aircraft. That authority is limited to a person in respect of whom directions are given who is to be removed in accordance with the direction. If these directions were to be quashed, then an immigration officer would be acting unlawfully in placing the applicant, without his consent, on board a ship or aircraft unless and until fresh valid directions are issued”

It is submitted that that is directly applicable to the current circumstances.

The case of R (on the application of Shaw) [2013] EWHC 42 considered a claim for damages for false imprisonment which it was contended arose from unlawful removal directions. At [43] the Judge said,

“In relation to detention, the period at issue is the period of 10 hours from 11.25 a.m. on 11 September 2010 when the Claimants were told they were to be removed and were then escorted to the gate until the flight landed in Jamaica and they were able to leave the plane. The Claimants claim is for false imprisonment. There are two ingredients to the tort of false imprisonment: the fact of detention and the absence of lawful authority to justify it: R (Lumba) v Secretary of State for the Home Department [2012] A.C. 245 at paragraph 65. The Defendant accepts that the Claimants were in fact detained from 11.25 a.m. and whilst they were on the flight as they were placed there against their will. I have proceeded on the basis of this concession and I have not been shown authorities dealing with the question of what constitutes detention. There was no lawful justification for their being placed on the flight on 11 September 2010 as the removal directions were unlawful as the Claimants were entitled to, but did not have, a period of time to enable them to obtain access to legal advice. The two elements of the tort of false imprisonment are therefore made out. The parties are agreed that, in the light of Thompson v Commissioner of the Police of the Metropolis [1998] Q.B. 498, and bearing in mind inflation, the appropriate measure of damages is in the region of about £4,500 for the first 24 hours. In the present case, there were 10 hours of detention. The appropriate figure for each Claimant is in my judgment £2,000.”

Although the first defendant delegated her functions to a private security firm it cannot be right that such a firm has wider powers than an immigration officer. There is no basis for that in the Immigration and Asylum Act 1999. Section 156 (1)(b) is expressly tied to removal directions and provides no power to authorise a detainee custody officer in broader circumstances. Absent any valid removal directions others acting under delegated authority from the first defendant have no power to remove. Schedule 13 of the 1999 Act does not provide a power to remove a person or put them onto or off an aircraft.

The first defendant makes four submissions,

At common law there were three inter-related reasons for the use of force,

A defendant may justify trespass to the person by establishing that he was acting in defence of his person, that he was using reasonable force in the prevention of crime and/or to prevent a breach of the peace. All of those factors are relevant here as capable of justifying force.

Schedule 13(2)(3) demonstrates that there is an overlap between statutory provisions and the common law. Schedule 13 should be used to supplement the common law. Construing a statute consistently with common law authority does not authorise conduct which would otherwise be unlawful. Removal directions are an administrative order by the Secretary of State to a captain of an aircraft requiring a person to be removed to a particular country. Escort arrangements are different. They enable escorted removal to take place. They are entered into under a commercial contract between the first defendant and second defendant. The movement notification that was sent on the 19^th December 2011 was a way of trying to perform that contract.

There would be surprising consequences if the claimant’s interpretation was correct and removal directions were found to be unlawful for whatever reason if it would mean that escorts were disabled from using force for whatever reason.

The claimant has been lawfully detained throughout under a long standing deportation order. The circumstances of false imprisonment in the case of Shaw, therefore, do not apply. An individual cannot be seized at the whim of a private escort as their activity depends entirely upon the receipt of a movement notification.

As to the application against the second defendant it is misconceived and should be determined later because, first, it overstates the nature of the concession made by the second defendant and, secondly, it would be contrary to justice to allow the first defendant to avoid a finding because of an error but not the second defendant.

The second defendant adopts the arguments on the preliminary issue on the part of the first defendant.

First, he applied for leave to amend his defence. Paragraph 7 of the second defendant’s defence currently reads as follows:

“If which is not admitted the directions of the first defendant were unlawful… then it is admitted that the admitted use of force by the second defendant’s agent was unlawful on this basis.”

The amendment proposed by the second defendant reads,

“If which is not admitted the use of reasonable force by the first defendant or its agents was (the proposed word “was” was altered by Lord Marks Q.C. to the words “would have been” during the course of oral argument, when Mr Hickman correctly pointed out that no force was in fact used by the First Defendant)” unlawful and the Claimant establishes the same then it is admitted that the admitted use of force by the second defendant’s agent was unlawful on this basis”.

It is submitted that the use of the word ‘directions’ in paragraph 7 of the second defendant’s defence is not a reference to removal directions but to the use of the word as it was used earlier in the pleading. The second defendant accepts the principles formulated by Akenhead J in Co-operative Group Limited v William J M Limited [2014] EWHC 837 (TCC) at [10] which read,

“The Court always needs to keep only in mind the Overriding Objective at CPR Part1. So far as the withdrawal of amendments is concerned, there is some authority. CPR Part 14.1(5) states that the "permission or the court is required to amend or withdraw an admission." The Court, therefore, has a discretion in considering whether to allow the withdrawal of admissions. In Sowerby v Charlton [2005] EWHC (Civ) 1610, the Court of Appeal approved a dictum of Mr Justice Sumner in Braybrook v Basildon Thurrock University NHS Trust [2004] EWHC 3352 (7 October 2004) in which that learned Judge said:

“45.

From these cases and the CPR I draw the following principles:

1.

In exercising its discretion the Court will consider all the circumstances of the case and seek to give effect to the overriding objective.

2.

Amongst the matters to be considered will be:

(a)

the reasons and justification for the application which must be made in good faith;

(b)

the balance of prejudice to the parties;

(c)

whether any party has been the author of any prejudice they may suffer;

(d)

the prospects of success of any issue arising from the withdrawal of an admission;

(e)

the public interest, in avoiding where possible satellite litigation, disproportionate use of Court resources and the impact of any strategic manoeuvring.

3.

The nearer any application is to a final hearing, the less change of success it will have, even if the party making the application can establish clear prejudice. This may be decisive if the application is shortly before the hearing." ”

Taking into account the overriding objective, in addition to the points made by the first defendant, there would be no prejudice if the amendment was allowed because it is a pure point of law and it concerns a point already an issue in the proceedings. There is, therefore, no need for any fresh evidence from any party. The second defendant has a proper claim for an indemnity against the first defendant and it would be unjust if that was defeated because it was not pleaded or the second defendant was not allowed to amend. The amendment is clearly needed to make clear that the common law use of reasonable force is covered and that the claimant has misread paragraph 7. It is arguable also that Mitting J fell into the same trap.

On the preliminary issue the question posed conflates the different stages of the operation. The authority for the use of force comes from section 156 and schedule 13 to the 1999 Act. That is independent of whether the removal directions were lawfully made and served. The flaw in the claimant’s argument is that it is premised upon escort arrangements only being in place with lawful removal directions. It is impossible to look at the separate stages of the operation without regard to the facts. The matter should therefore be adjourned to the substantive hearing.

I propose to deal with matters in the following order,

The proposed amendment by the second defendant is extremely late. It has not been made in the conventional way, that is by way of application supported by evidence and a statement of truth. The first time it was raised was, I understand, in the skeleton argument of Lord Marks QC for the hearing.

The claimant submits that the amendment is late by 1 ½ years and that he would be prejudiced were the amendment to be allowed. He wants to have the opportunity to file evidence in support of that claim.

I consider that the claimant’s submissions have real force. The way in which the application to amend has come before the court does not accord with the CPR and has every appearance of being opportunistic even to the extent that further amendments were made orally during the hearing. It does, however, affect a significant part of the case of the second defendant. I am not prepared, therefore, to rule it out at this stage.

If the application is to proceed then a proper application needs to be made to which the other parties should be able to respond, if necessary on the part of the first defendant, but which the claimant has indicated he would wish to take the opportunity of doing. The application is to be made within 14 days of the date of the handing down of this judgment. Unless made within that time I can see no basis for allowing any subsequent application to amend.

The decision on the amendment clearly affects the second of the claimant’s applications. It would not be appropriate to determine that application without resolution as to whether an amendment is to be made. I adjourn that part of the claimant’s application.

It is accepted as a result of a response to a part 18 response that no removal direction was issued for Qatar Airways flight QR 002 for the claimant’s removal to Doha at 20:30 hours on the 24^th December 2011. No notification of removal by that flight was given by the first defendant to either the claimant or his solicitor. There were, therefore, no valid removal directions for the Qatar flight. Woolf J in Shah made it clear that without a valid removal direction an immigration official was not able to place the immigrant on board a ship or aircraft. The only removal direction in force which was notified to both the claimant and his representative was that which related to removal on a different airline, namely EgyptAir via Cairo. A movement notification was issued by the first defendant requiring the claimant be taken to Heathrow terminal 3 for the Egypt Air flight. The movement notification was manually amended by someone either in the employ of the first defendant or the second defendant. There is a dispute between the two as to who carried out the manual alteration which is likely to require resolution at a later stage. What is, or may be, significant though is that the ultimate destination is the same in seeking the removal of the claimant to Uganda and to Entebbe Airport. It is not though for me to prejudge any eventual issue on the question of relief.

The question as framed for the preliminary issue is whether or not there was lawful justification for the use of force to convey the claimant to Heathrow Airport or to put him on or remove him from Qatar Airways Flight QR2 to Doha on the 24^th December 2011. The question is broader than simply making a ruling on the validity or otherwise of a set of removal directions and examining the consequences that would flow from that. It raises, it seems to me, questions of the extent of the claimant’s lawful detention. The claimant was lawfully detained and had been the subject of a deportation order since 1997. All challenges against that detention had failed. However, that does not necessarily mean that the claimant can be collected by a person acting under an escort arrangement and transported off to Heathrow Airport without lawful authority. Yet further questions arise as to whether there was any lawful power to load or offload the claimant onto the Qatar Airways flight.

The case of Shah establishes that the removal directions can be quashed but here there were no removal directions for the relevant flight. The case of Shaw awarded damages for false imprisonment as a result of unlawful detention. It is of note that the judge in that case was not shown authorities which dealt with what constituted detention. That is a different situation to that which is facing the court in the instant case where the underlying detention of the claimant was clearly lawful, in the sense that had the claimant not been detained by the second defendant he would have continued to have been detained at Brook House immigration removal centre..

Whilst I have doubts about the defendants arguments as to justification being provided at common law and by virtue of schedule 13 of the 1999 Act for their actions I have concluded, with some reluctance, that there may have been lawful authority at common law possibly as supplemented by statute. That is best determined at trial with a determination of the facts.

That conclusion is endorsed by the claimant’s acceptance that even if it was unlawful to put the claimant onto the airplane the second defendant would be entitled to use force in self defence if the circumstances warranted it. In those circumstances, it is not helpful for me to express any further provisional view. The determination of whether that is or is not the case requires a full hearing of the evidence. The arguments have developed since the matter was before Mitting J. There may be different findings for each of the three stages of the removal operation namely the transportation to Heathrow, the placing of the claimant on the plane and the offloading him from the plane.

I am acutely mindful of the overriding objective and the requirement of proportionate cost and have taken that very much into account but, in all of the circumstances and having heard full argument, I do not think it is possible to determine the preliminary issue other than in the way that I have done.

I invite submissions as to the order and on costs.