- Page Contents
- Unlawful Immigration Detention
- No Win No Fee
- Legal Principles On Detention
- Legal Principles On Damages
- Factors Likely To Increase Damages
- Factors Likely To Decrease Damages
You can make a claim for compensation / damages against the Home Office UKVI if you have been subjected to unlawful immigration detention in the UK. Ask a question to our expert immigration solicitors for free advice online for unlawful immigration detention claim by completing our enquiry form and one of our immigration solicitors will answer your question as soon as possible.
If we find that you have an arguable case for compensation/damages for unlawful immigration detention, we will provide you free initial consultation to assess your eligibility for damages for unlawful immigration detention.
The unlawful immigration detention is an act of the Home Office UKVI to detain a person where the detention of such person cannot be legally justified and is outside the boundaries of law. The law attaches supreme importance to the liberty of individuals and a person who believes that they have experienced unlawful immigration detention may be entitled to claim compensation.
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 the domestic law and not exempt from the 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 un 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 tim of your immigration detention;
- If you are a woman who is 24 or more weeks pregnant at thet ime 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 ahve evidence to prove the same.
The list above is not comprehensive and exhaustive and there may be other circumstances in which detention of an immigrant may be held unlawful by the court and damages for unlawful detention may be awarded by the court.
Our expert team of compensation solicitors can represent you in your unlawful immigration detention claim against the Home Office UKVI. We can act on no win no fee basis in your damages 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 success fee in your case.
In a claim for unlawful immigration detention it is for the Claimant to prove that he was detained. Once detention is established, it is for the Home Office, UKVI (the Defendant) to show that it was lawful in all the circumstances.
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  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  UKSC 12, which reiterated at paragraph  the correctness of R (on the application of I) v Secretary of State  EWCA Civ 888, in which Dyson LJ said at paragraph :
“(i) The SSHD must intend to deport the person and can only use the power to detain for that purpose;
(ii) The deportee may only be detained for the period that is reasonable in all the circumstances;
(iii) 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;
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.”
Dyson LJ continued at paragraph  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.”
The four Hardial Singh principles were neatly summarised by Michael Fordham QC (sitting as Deputy High Court Judge) in R(Muhammad) v SSHD  EWHC 745 (Admin) as:
- the purpose principle;
- the duration principle;
- the removability principle; and
- the diligence principle.
There is now guidance in the cases as to appropriate levels of awards for false imprisonment. There are three general principles which should be born in mind:
- The assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular claimant;
- Damages should not be assessed mechanistically as by fixing a rigid figure to be awarded for each day of incarceration. A global approach should be taken;
- While obviously the gravity of a false imprisonment is worsened by its length, the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons:
- to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and
- because the initial shock of being detained will generally attract a higher rate of compensation than the detention's continuance.
In Thompson the court gave specific guidance (515 D-F) to the effect that in a "straightforward case of wrongful arrest and imprisonment" the starting point was likely to be about £500 for the first hour of loss of liberty and a claimant wrongly detained for 24 hours should for that alone normally be entitled to an award of about £3,000. That case was of course decided more than ten years ago and, while not forgetting the imperative that damages should not be assessed mechanistically, some uplift to these starting points would plainly be appropriate to take account of inflation.
When comparing quantum with cases decided prior to the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1st April 2013, the Declaration of the Court of Appeal in starting figures would currently be approximately £1,000 for the first hour and £6,000 for wrongful detention of 24 hours in July 2019 values.
Distilling the guidance in the leading cases, it can be seen that the following are likely to increase the amount of damages for unlawful immigration detention:
- Initial shock of detention;
- Particularly vulnerable Claimant - e.g. torture victim, person with mental health issues, child, victim of trafficking. This will be a factor in the basic damages award even if the aggravated damages threshold is not met;
- Poor behaviour of state in relation to initial detention or conduct thereafter;
- Effect on Claimant (e.g. mental health deterioration) or others (e.g.
- Claimant being of good character and suffering reputational damage;
- High-handed treatment, e.g. using handcuffs unnecessarily, denying phone call;
- Unlawful detention combined with unlawful removal.
Due to changes in litigation funding flowing from the Jackson reforms (meaning that a success fee could no longer be received in cost), this brought in a 10% increase in general damages awarded for
- pain, suffering and loss of amenity in respect of personal injury;
- defamation; and
- all other torts which cause suffering, inconvenience or distress to individuals.
The following factors are likely to decrease the amount of damages for unlawful immigratin detention:
- Litigation risk, if settling. If damages are agreed without trial, the amount will usually be less than a Claimant could have obtained if successful in court;
- Unlawful detention following a period of lawful detention, as the “initial shock” factor is absent. The longer the period of lawful detention in comparison to unlawful detention, the more adverse its effect it likely to be on damages;
- The tapering effect: the highest damages are likely to be for the detention shock and first 24 hours. However, there is also evidence, highlighted in the Shaw Report, that the tapering effect is limited in cases of unlawful detention, and that, unlike the case for prisoners serving determinate sentences, the effects of detention on immigration detainees actually get worse as time passes due to the lack of certainty of any end date;
- Claimant’s own conduct responsible for duration or conditions of detention, but see e.g. hunger strikes.