Following a seven-day hearing in the High Court, Mr Felix Wamala, a Ugandan national, was awarded £48,000 in damages for the actions of private security guards contracted by the Home Office in seeking to remove him from the UK. This is the case of Wamala v Tascor Services Ltd [2017] EWHC 1461. The judgment is a mammoth one, weighing in at 558 paragraphs plus annexes.

Mr Wamala’s claim concerned the use of force, and the threatened use of force, against him by employees of Reliance, now known as Tascor Services Ltd. Tascor is a subsidiary of Capita. As they say on their website:

As part of Capita PLC, we have the support of one of the UK’s largest companies that allows us to operate as an SME where the traditional values of “Customer is King”  is prevalent, yet have the resources available to allow us to deliver a truly comprehensive service to our clients where appropriate.

We do our business, so that you can get on with yours.

Mr Wamala sought, among other things, aggravated and exemplary damages for defamation, negligence, false imprisonment, assault and battery, and personal injury.

Facts

Mr Wamala was a Ugandan national and it was agreed that he had previously been tortured in Uganda. He made an asylum claim in the UK in 1995 which failed, had been convicted and sentenced to 7 years for smuggling class A drugs, been deported and had secretly re-entered the UK.

On 16 December 2011, while being held at Brook House Immigration Removal Centre, Mr Wamala was given a notice issued by the UK Border Agency informing him that directions had been given for his removal to Uganda. The removal notice informed him that he would be removed on flight MS778, scheduled to depart at 2pm on Christmas eve.

On 23 December, Mr Wamala lodged an application for permission to apply for judicial review. Mr Wamala believed that his removal would be deferred pending this judicial review.

2pm came and Mr Wamala was not collected from Brook House and understandably presumed that his removal had been deferred.

In fact, the arrangements for Mr Wamala’s removal had been changed on 14 December 2011, and Mr Wamala was to take a Qatar Airway 8:30pm flight to Kampala via Doha, still on Christmas eve. Mr Wamala was never served with removal directions confirming this, and therefore removing him on any flight other than flight MS778 would have been unlawful, as confirmed by a 20 June 2014 declaration made by Mrs Justice Patterson in a preliminary hearing.

At around 3pm on Christmas eve, after flight MS778 had departed, employees of Reliance, a private contractor providing immigration escort services under contractual arrangements with the Home Office, took Mr Wamala at Brook House, transported him in their van to Heathrow, and put him on the aircraft to Doha.

A struggle occurred on board during which force was used by Reliance employees on Mr Wamala.

The captain then refused to carry Mr Wamala and Reliance employees took Mr Wamala off the aircraft, put him in their van, and took him to Colnbrook Immigration Removal Centre.

Although Reliance accepted that there was no valid removal direction for the Qatar Airways flight, it maintained that its employees were entitled to use force against Mr Wamala.

Use of force

The main issue of the case was whether there was lawful justification for the use of force by Reliance employees against Mr Wamala.

Mr Justice Walker found that Reliance employees assaulted Mr Wamala, using an unauthorised “pain compliance” technique as a result of which Mr Wamala experienced “intense pain” and difficulties breathing.

When Mr Wamala was dragged off the airplane, Reliance employees kept using violence against Mr Wamala, violence which was captured by a CCTV camera and which the Judge described as “shocking”.

Mr Wamala is crying out in pain. He is being shouted at by the escorts, but appears plainly incapable of getting up. At one stage an escort pulls Mr Wamala into the van by the rear of his trousers. At this stage the handcuffs had not been double locked and thus must have been digging into Mr Wamala’s wrists. The experience for Mr Wamala was both painful and degrading. [447]

Mr Justice Walker found that Mr Wamala suffered physical injuries as a result of the assault, but also psychiatric injuries. He says

I have no doubt that Mr Wamala did indeed believe that the escorts were trying to kill him.  [440].

In this regard, it is noticeable that Mr Wamala had been had been in neighbouring rooms in Brook House IRC as Mr Mubenga, who died during the course of his deportation little over a year prior to the events.

Mr Justice Walker also stated

It would be astonishing if, in the light of Mr Wamala’s beliefs and concerns prior to the incident, what took place on the aircraft could be treated as playing no causative part in the re-traumatisation experienced by Mr Wamala. [293]

Mr Justice Walker concludes that:

 force threatened and used by Reliance when seeking to bring about Mr Wamala’s removal on QR2 constituted the tort of trespass to the person, with consequential liabilities in damages. [31]

Damages

The High Court found that

Mr Wamala is entitled to damages for physical and mental injuries in the amounts totalling £30,000, and is further entitled to £8,000 for aggravated damages and £10,000 for exemplary damages. Thus the total award of damages will be £48,000. [558]

It should be noted that

Exemplary damages can be awarded in respect of outrageous exercises of unlawful executive power. They can only be awarded if it is clear that an award of basic damages together with aggravated damages will be significantly insufficient to mark the court’s disapproval of the conduct in question and, effectively, to punish and deter the defendant. (554)

Mr Justice Walker found that exemplary damages had to be awarded in this case as Reliance showed “at the very least indifference to the legality of removal” and “there were features of the techniques adopted by the escorts, techniques which according to the evidence were regularly adopted by Reliance’s staff, and the approach to the requirements of the 2010 Services Agreement, which taken together can properly be described as outrageous”.

Other findings: improper behaviour and no understanding of the law by Reliance staff

In addition to the unlawful use of force by Reliance staff, the Judge found that Reliance staff behaved improperly, including making amendments to the notification of removal and denying doing so; giving manufactured testimony in High Court; using “unprofessional behaviour” towards Mr Wamala; and laughing at Mr Wamala when he rightly told them that they were acting unlawfully in removing him.

Mr Justice Walker also made negative comments as to the little understanding of the law which the escorts had. In particular, the escorts repeatedly told Mr Wamala that his judicial review claim had been overturned by UKBA, which of course is not lawfully possible. Although the Home Office can come to the conclusion that a judicial review does not warrant deferral of a removal, that does not mean that they can overturn the claim. In this regard, the judge made the following remark:

This case will, I hope, emphasise how important it is that escorts, and those who give information to them, have a basic understanding of elementary principles as to what UKBA can and cannot do. In order to avoid confusion, it is also important that those communicating information to escorts, and escorts when communicating information to those who are to be removed, use correct terminology. Adherence to professional standards requires nothing less.

Mr Wamala clearly understood the law better than the escorts, and told them that it could not have been overturned by the immigration authorities as they were not the Royal Courts of Justice. Mr Wamala also made the point that he could not be removed on this flight as his notice specified another flight. The response of one of the escorts was that he was “not too bothered”.

Better practice?

This judgement was published two weeks before the Independent Monitoring Board (IMB) published its concerning annual review of the treatment of returnees during charter flights.

Unfortunately, as discussed in more details in this blogpost,

The IMB reported that escorts employed by the contractor, Tascor [then Reliance], appeared to be all too willing to use force and apply restraint without adequate checks that the individual concerned actually presented a risk.

One can only hope that this case will have the desired effect of deterring the company from continuing to use unlawful force during removals proceedings.