Wamala v The Home Office & Anor

The absence of valid removal directions for a particular flight does not, by itself, determine every question concerning the use of force during an escorted removal. A lawful underlying detention does not necessarily authorise transport to an airport or the placing of a detainee on, or removal from, an aircraft. Lawful authority may arise at common law, possibly supplemented by statutory powers, but the answer depends on the circumstances in which force was used. Different stages of the operation may require separate analysis. Where the material facts are disputed, the issue should ordinarily be determined at trial rather than on a preliminary issue.

The claimant, an immigration detainee subject to a long-standing deportation order, brought an action for damages for alleged assault during an attempted removal to Uganda. Removal directions had been issued for an EgyptAir flight via Cairo, but the claimant was instead booked on a Qatar Airways flight via Doha. No revised removal directions were issued for that flight.

The claimant sought declarations and judgment on the basis that the use of force was unlawful. The court also considered the defendants’ arguments concerning common-law justification, statutory escort powers, a late proposed amendment to the second defendant’s defence, and an application for summary judgment.

1. Proposed amendment. The second defendant’s proposed amendment was extremely late and had not been made by a proper application supported by evidence. It appeared opportunistic and affected a significant part of the defence. The court declined to rule it out altogether, but directed that any application to amend be made within 14 days of hand-down, allowing the other parties an opportunity to respond.
2. Summary judgment. The claimant’s application against the second defendant depended upon whether the proposed amendment was permitted. That application was therefore adjourned.
3. Removal directions. It was accepted that no removal direction had been issued for Qatar Airways flight QR002 to Doha. The only notified direction concerned a different EgyptAir flight via Cairo. Applying the principle stated in R v Immigration Officer ex parte Shah [1982] QB 544, the court held that there were no valid removal directions for the Qatar flight.
4. Lawful authority and force. The preliminary issue was broader than the validity of the removal directions. It required consideration of the claimant’s lawful detention, the authority for transporting him to Heathrow, and the authority for placing or removing him from the aircraft. Lawful detention did not necessarily authorise collection and transportation by an escort contractor. The court had doubts about the defendants’ reliance on common law and Schedule 13 to the Immigration and Asylum Act 1999, but concluded that there might have been lawful authority at common law, possibly supplemented by statute.
5. The question whether force was justified, including any self-defence justification, depended on disputed facts. The three stages of transportation to Heathrow, placing the claimant on the aircraft, and removing him from it might produce different answers. The preliminary issue was therefore left for determination at the substantive trial. Costs and the consequential order were reserved for submissions.

The judgment records earlier case-management and judicial-review proceedings, but it is a first-instance decision on a preliminary issue in the damages action. No appellate decision is stated.