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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Wamala v The Home Office & Anor [2014] EWHC 2039 (QB) (20 June 2014) URL: https://www.bailii.org/ew/cases/EWHC/QB/2014/2039.html Cite as: [2014] EWHC 2039 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A ![]() | ||
B e f o r e :
____________________
FELIX ![]() | Claimant |
|
- and - |
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(![]() ![]() ![]() ![]() ![]() (2) ![]() ![]() ![]() ![]() ![]() ![]() | Defendants |
____________________
Robert Kellar (instructed by The Treasury Solicitor) for the First Defendant
Lord Marks QC (instructed by Horwich Farrelly) for the Second Defendant
Hearing date: 14th
May
2014
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Mrs Justice Patterson
Introduction
"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 the24th
December
2011."
Factual summary
"The Secretary of State hereby directs you to remove the above named person from the United Kingdom by MS778 to Cairo at14:00
hours on the
24th
December
2011
connecting on to MS837 at
21:45
on the
24th
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."
"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."
"You will know that you are being removed to Uganda on the24th
December
2011
at
14:00
hours."
Legal framework
"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."
"May, if necessary, use reasonable force": section146
Immigration and Asylum Act
1999.
"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 the1971
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 custodyofficers;
or
(b)prisoner custodyofficers
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)Schedule13
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 custodyofficers
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 theofficer
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 custodyofficer—
(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 custodyofficers
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."
Submissions
The Claimant
i) Judgment on an admission against both defendants that there was novalid
removal direction and a declaration to that effect;
ii) judgment against the second defendant under CPR
14.3
on the basis of their pleaded defence in which they admit that if there were no
valid
removal directions in force then their actions were unlawful;
Amendment
Preliminary Issue
"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.
Paragraph11
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.
"In relation to detention, the period at issue is the period of10
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."
The First Defendant
i) whether or not there was lawful justification for the use of force depends upon the circumstances in which force is applied;ii) the circumstances pleaded by the second defendant are capable of providing lawful justification for the use of force
a) at common law;b) as supported by schedule13.
![]()
iii) An administrative error in the issue and service of removal directions does not render it unlawful for removal escorts to use force in all or any circumstances.
iv) For those reasons everything should proceed to a substantive hearing to enable the determination of the factual circumstances and the claimant's application should be dismissed.
i) as a response to a perceived threat to the safety of anofficer;
![]()
ii) as a response to a struggle and
violence
against an
officer;
![]()
iii) as a response to a perceived failure to comply with what were understood to be lawful directions.
The Second Defendant
"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."
"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".
"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 Part14.1(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." "
Discussion and conclusions
i) The proposed amendments;ii) The application for summary judgment against the second defendant;
iii) The preliminary issue.
Proposed amendment
Application for summary judgment against the second defendant
The preliminary issue