Unlawful Immigration Detention Claim
If you have been unlawfully detained in the UK in the past 6 years, you might be able to make claims against the Home Office for unlawful immigration detention.
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Unlawful Immigration Detention Claim Against Home Office
You can make an unlawful immigration detention claim against the Home Office if you have been unlawfully detained in the UK during the past six years.
Our highly experienced immigration solicitors based in Manchester can provide free general immigration advice online via email, online chat, or an enquiry form. For detailed advice, please book an appointment with our expert immigration solicitor today.
You can contact us on 01612258181 or leave your details here for a call back request regarding your immigration matter.
What is unlawful detention?
Unlawful immigration detention means a person detained by the Home Office unlawfully outside the boundaries of the law. The burden of proof is on both parties, the claimant to prove that he was detained and it is for the Home Office (the Defendant) to show that it was lawful in all the circumstances.
Detention will be unlawful where:
- There is no power of detention;
- Detention is in breach of the Hardial Singh principles;
- A decision to detain is tainted by material public law error (e.g. failure to have regard to or lawfully apply published policy);
- Detention breaches an article of the European Convention on Human Rights (e.g. arts 5 or 3/8).
What makes detention unlawful?
Your immigration detention may be found to be unlawful by a court in the following circumstances:
- If you have valid leave to remain in the UK at the time of your immigration detention and the Home Office UKVI has erroneously treated you as an overstayer and a person with no leave to remain;
- If you have Section 3C leave by virtue of a pending application or appeal and the Home Office UKVI wrongfully considered you as a person with no leave to remain at the time of your immigration detention;
- If you are exempt from immigration control being an EU national or a family member of an EU national and the Home Office UKVI treated you under domestic law and not exempt from immigration control at the time of your detention;
- If Home Office UKVI detained you as a result of an unlawful immigration decision by the Home Office UKVI on your immigration application for leave to remain which was later set aside by the immigration court or the Home Office UKVI conceded the decision to be unlawful during the litigation;
- If you were detained by the Home Office UKVI when your removal from the UK was not imminent and you were not evading immigration control;
- If you are an unaccompanied minor at the time of your immigration detention. An unaccompanied minor must either be under 18 or yet to have their age verified by an age assessment;
- If you have a severe disability at the time of your immigration detention;
- If you have an infectious or contagious disease at the time of your immigration detention;
- If you are a woman who is 24 or more weeks pregnant at the time of your immigration detention;
- If you suffer from a mental illness at the time of your immigration detention;
- If you require constant medical care and you have been detained by the Home Office UKVI;
- If you are a victim of torture or trafficking and you have evidence to prove the same.
What is the unlawful detention limitation period?
Unlawful detention claims can be made against the Home Office within 6 years from the end date of your immigration detention period. Any claims based on a breach of human rights are limited to 1 year from the date of the detention.
What are the Hardial Singh principles?
The Hardial Singh principles are the most important limitation on the Home Office’s immigration detention powers.
In R (I) v SSHD [2003] INLR 196 at [46] Dyson LJ identified four distinct propositions governing the legality of Immigration Act detention emerging from Woolf J’s judgment in Hardial Singh:
- The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
- The deportee may only be detained for a period that is reasonable in all the circumstances;
- If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
- The Secretary of State should act with reasonable diligence and expedition.
The common law limits the Secretary of State’s exercise of powers of detention. Those limits were set out by Woolf J (as he then was) in R v Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (“the four Hardial Singh principles”):
“First of all, it [the 1971 Act] can only authorise detention if the individual is being detained in one case pending the making of a deportation order, in the other, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of the deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to be that it would be wrong for the Secretary of State to seek to exercise its powers of detention.”
The Hardial Singh principles were unanimously endorsed in the landmark judgment of R (Walumba Lumba and Kadian Mighty) v Secretary of State for the Home Department [2011] UKSC 12, which reiterated at paragraph [22] the correctness of R (on the application of I) v Secretary of State [2002] EWCA Civ 888, in which Dyson LJ said at paragraph [46]:
- The SSHD must intend to deport the person and can only use the power to detain for that purpose;
- The deportee may only be detained for the period that is reasonable in all the circumstances;
- If, before the expiry of a reasonable period, it becomes apparent that the SSHD will not be able to effect deportation within that reasonable period, [s]he should not seek to exercise the power of detention;
- The Secretary of State should act with reasonable diligence and expedition to effect removal.
Dyson LJ continued at paragraph [48] of I:
“It is not possible or desirable to produce an exhaustive list of all circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary
of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least:
- the length of the period of detention;
- the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation;
- the diligence, speed and effectiveness of the steps taken by Secretary of State to surmount such obstacles;
- the conditions in which the detained person is being kept;
- the effect of detention on him and his family;
- the risk that if he is released from detention he will abscond; and
- the danger that, if released, he will commit criminal offences.”
How long does an unlawful detention claim take to settle?
It takes 3-4 months to settle an unlawful immigration detention claim made against the Home Office. However, it may take longer due to the complexity of the matter.
Immigration solicitors for unlawful detention
Our team of immigration solicitors in Manchester can provide legal services to make an unlawful detention compensation claim against the Home Office.
We can act on a ‘no win no fee’ basis in your compensation claim against the Home Office UKVI for your unlawful immigration detention and will charge up to 25% of the compensation amount recovered from the Home Office UKVI as a success fee in your case.
Who will be dealing with your Immigration work
Our Immigration team of solicitors have more than 15 years’ experience in dealing with immigration matters. The team is headed up by Mr Muhammad Shahid who is Managing Director and Supervisor and his team consists of Mr M Usman Rasheed (Solicitor) and Mr M M Ilyas (Solicitor).
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0161 225 8181
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