Shittu v The Home Office [2017] EWCA Civ 1748 is a sad case which illustrates how difficult it is to bring legal challenges against the Home Office for using excessive force against migrants during the removal process. Civil claims against the Secretary of State in these circumstances turn on whether the first instance judge will accept the claimant’s evidence against the evidence of immigration officers, who benefit from their own written record of events and being able to provide a set of corroborating accounts.

The judgment confirms that the Court of Appeal is very reluctant to reconsider the findings of the initial judge. Disappointingly, the Court of Appeal also declined to provide detailed comment on whether the use of force can be justified in family removal cases, which had been the intention of Vos LJ when he granted permission to appeal.

An unsuccessful claim for excessive force

The Home Office sought to detain Ms Shittu and her four children on 15 February 2010 ahead of removal later that week. The judgment records that Ms Shittu refused to leave her home and held one of the children close to her. The immigration officers, apparently concerned for the child’s safety, forcibly separated the child from her mother, who was then restrained on the floor. The removal did not go ahead. In fact, the Secretary of State subsequently changed her position and granted the family leave to remain.

The court recognised that these claims take place in a context which makes it difficult for claimants to prove their case:

The case followed the pattern of many criminal trials as well as civil ones where evidence is given by several agents of the State (police officers, immigration officers and the like) on one side and by a single individual on the other about an incident which lasted no more than a few minutes, involved a great deal of sudden movement and was not captured on film or CCTV, but where the agents of the State make notes or complete forms within a short time of the incident.

Despite this, the court did not accept Ms Shittu’s’s challenge to the findings of the first instance judge. The reasoning is brief and relies upon the appellate courts’ usual reluctance to re-consider factual findings made in the courts below, particularly where the judge below has provided clear reasons for their decision.

Closer appellate scrutiny of removal claims

Whilst this is generally an appropriate stance to adopt in civil appeals, it is less certain whether it is the correct approach to alleged torts committed by the Home Office while exercising its immigration powers. The Home Office is in the unique position of being able to remove potential claimants from the jurisdiction, which will usually prevent a claim from being brought against it.

In the context of a removal attempt, the Secretary of State can commit civil wrongs with near impunity knowing that the victim of the tort will imminently leave the jurisdiction and therefore has no time to instruct lawyers. The imbalance of power in this situation means that the Court of Appeal should rigorously re-evaluate the findings of trial judges in the knowledge that many meritorious claims will not reach the courts.

Although there is necessarily no body of objective evidence to show how many torts are committed during removal without acknowledgment or compensation, there is significant anecdotal evidence to suggest that this is a major issue. Earlier this year Marian Khan MP publicised footage of an Afghan man being attacked by Home Office staff during a removal attempt. Separately, a Kurdish man reported being handcuffed, hooded and locked in a toilet whilst being returned to Iraq.

The courts have an essential role providing oversight of the removal process and should exercise their power to protect those facing removal from unreasonable or excessive force.

No guidance on the use of force

The Court of Appeal declined the opportunity to provide guidance on the use of force during family removal attempts because the present case was complicated by the possibility that the use of force was to protect the child from her mother.

The trial judge was entitled to find that the officers genuinely and reasonably believed that it was necessary to take the action which they did and that such action was in those circumstances reasonable. This is not, therefore, a suitable case in which to pronounce on what level of force would be appropriate in order to separate an adult from a child, where there is no perceived risk of imminent harm to the child, simply in order to facilitate a removal.

This is regrettable because almost all family removal cases will involve similar facts, either because the parent is holding the child or the child is clinging to the parent in fear of the immigration officers.

Neither the first instance judge nor the Court of Appeal was provided with evidence to explain why an otherwise exemplary mother, who was hugging her daughter, suddenly became a sufficiently serious threat to her child to justify the use of restraint. In such circumstances, the use of force appeared to be motivated by a plan to enforce removal of the family, in which case the use of restraint would have been in breach of policy and unlawful.