Claiming compensation for unlawful immigration detention

What is Immigration Detention?

Immigration detention is the detention of people by the Home Office because of their immigration status in the UK. British Citizens are not subject to immigration control and therefore cannot be the subject of immigration detention. However, anyone else can be detained by the immigration authorities.

There are a wide variety of situations in which Home Office could decide to detain you if you are not a British citizen. These are some of the common circumstances in which people are detained:

• Overstayers that are encountered by police or immigration officials
• Persons who are to be removed because a decision has been taken to refuse their human rights /protection claim
• Persons whose leave is cancelled because they have breached a condition of their leave (such as working when they are not permitted to, or working more hours than they are permitted to)
• Persons whose visa is cancelled when they arrive in the UK

You could be detained when you go for reporting at the reporting centre. This might happen if, for example, your appeal has recently been refused. You could also be detained during immigration raids on businesses. You might be lawfully resident in the UK, but suddenly be subject to immigration detention because a decision has been taken to cancel your permission to stay here. Detention can happen suddenly and unexpectedly.

The Impact of Immigration Detention on Detainees

Immigration detention can have a long-lasting impact on your mental and physical health. The adverse consequences of immigration detention has been the subject of a recent inquiry into mistreatment of detainees in an immigration detention centre- see  The Brook House Inquiry report.

In any event, detention is a fundamental restriction on a person’s liberty, and that alone is sufficient to give rise to a right to substantial compensation if the detention is found to have been unlawful.

If you have been detained in the UK, you might be able to make a civil claim and seek compensation for unlawful detention.

The Time Limit for a Compensation Claim

If you wish to pursue a claim for unlawful detention, you must bear in mind that a claim must be brought within six years from the date of detention. Therefore, you must issue proceedings against the Home Office before the end of the six-year period.

Basic Legal Principles on Unlawful Immigration Detention

Once it has been established that a person was detained by the Home Office, it is for the Home Office to prove that the detention was lawful. This is a reversal of the usual position where a person that is claiming compensation needs to establish his/her entitlement to it. In immigration unlawful detention cases, it is for the Home Office to prove that person was not detained unlawfully, and is thus not entitled to compensation.

The Home Office must show that it acted in accordance with the public law principles that govern its actions and followed its own published policy on detention. If it failed in this regard, and the failure was material to the exercise of the discretion to detain, the detention is unlawful.

Further, there are four established principles which limit the use of powers to detain someone for immigration purposes, known as the Hardial Singh principles:

1. The Home Office must intend to deport/remove the person and can only use the power to detain for that purpose;
2. The person may only be detained for a period that is reasonable in all the circumstances;
3. If before the expiry of the reasonable period, it becomes apparent that the Home Office will not be able to effect deportation/ removal within a reasonable period, it should not continue to detain;
4. The Home Office should act with all diligence and expedition to effect removal.

According to the Home Office’s own guidance, detention must be used ‘sparingly, and for the shortest period necessary’. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process, for example once any rights of appeal have been exhausted if that is likely to be protracted and/or there are no other factors present arguing more strongly in favour of detention.

Despite the established guidance, laws and principles, the Home Office does make mistakes and detain people unlawfully.

Factors relevant to the amount of compensation

If it is found that a person has been detained unlawfully, as it entitled to substantial damages, then in all cases there will be entitlement to basic compensatory damages. The purpose of this is to compensate for the loss of liberty.

If there are factors in a case that mean that a person would not receive adequate compensation through a basic award of damages, the court can award aggravated damages.

If the Home Office has acted in a manner that is “outrageous”, “high handed”, or “arbitrary”, a punitive award of exemplary damages can also be awarded.

Advice and representation

If you believe that you have been unlawfully detained, our experienced barristers are able to assist.

Our barristers have many years of experience and expertise with such claims. We have successfully represented numerous clients, recovering in excess of £700,000 in damages for our clients.

Contact us for a free consultation to discuss your case.