Unlawful Immigration Detention – Can you claim Compensation in 2026? (Updated in April 2026)
If you have been detained by the Home Office under immigration powers, and that detention was unlawful, you may be entitled to claim compensation.
Immigration detention can be deeply distressing. It can affect your health, family life, employment, reputation and immigration case. The Home Office does have powers to detain people in certain immigration situations, but those powers are not unlimited.
Detention must be lawful, justified and kept under review. If the Home Office detains someone when it had no lawful power to do so, or continues detention when it is no longer justified, there may be grounds for a claim.
When can the Home Office detain someone?
The Home Office may detain a person under immigration powers in certain circumstances. For example, detention may be considered where a person is facing removal or deportation, where there is a risk of absconding, or where further checks are needed before a decision can be made.
However, detention should not be used automatically. Home Office guidance confirms that there is a presumption in favour of immigration bail and that alternatives to detention should be considered wherever possible. Detention must be based on a lawful statutory power, must comply with case law and Home Office policy, and must remain justified throughout the period of detention.
The Hardial Singh Principles
The courts have long applied the Hardial Singh principles when considering whether immigration detention is lawful.
In broad terms, these principles require that:
- detention must be for a lawful immigration purpose;
- detention must only continue for a reasonable period;
- if it becomes clear that removal cannot take place within a reasonable period, detention should not continue; and
- the Home Office must act with reasonable diligence and expedition.
The Illegal Migration Act 2023 has changed part of the legal framework by placing some of these principles on a statutory footing and clarifying the Secretary of State’s role in assessing what period of detention is reasonably necessary. However, detention decisions remain capable of challenge, and the facts of each case remain extremely important.
How do I know if I was Unlawfully Detained?
There is no single test that applies to every case. Whether detention was unlawful will depend on your immigration status, the reason you were detained, the length of detention, whether removal was realistic, whether the Home Office properly reviewed your case, and whether any vulnerability or medical evidence was considered.
Examples of situations where detention may be unlawful include:
- you had valid leave to remain, but the Home Office wrongly treated you as an overstayer;
- you had section 3C leave because of a pending application or appeal, but this was not properly recognised;
- there was no realistic prospect of your removal within a reasonable period;
- the Home Office failed to act with reasonable diligence and expedition;
- the Home Office failed to consider immigration bail or alternatives to detention;
- detention continued despite fresh evidence showing that removal was not imminent;
- the Home Office failed to properly review your detention;
- detention was based on factual errors, outdated information or incorrect immigration history;
- you were a British citizen or otherwise not liable to immigration detention;
- you were under 18, or wrongly treated as an adult during an age dispute;
- you were pregnant and detained outside the permitted safeguards;
- you were vulnerable and the Home Office failed to apply the Adults at Risk policy properly.
This list is not exhaustive. Many unlawful detention claims turn on detailed facts and Home Office records.
Vulnerability and the Adults at Risk Policy
The Home Office must consider whether a person is particularly vulnerable to harm in detention. The Adults at Risk policy applies where immigration detention is being considered and also where a person is already detained.
This may include people with serious physical or mental health conditions, survivors of torture, victims or potential victims of human trafficking or modern slavery, victims of sexual or gender-based violence, people with disabilities, pregnant women and other vulnerable individuals.
A person who is vulnerable should only be detained where the immigration factors outweigh the risk of harm to that person. If the Home Office failed to consider vulnerability evidence properly, this may support a claim for unlawful detention.
Rule 35 and Rule 32 Reports
Medical evidence is often important in unlawful detention cases.
In immigration removal centres, doctors may issue a Rule 35 report. In short-term holding facilities, a Rule 32 report may apply. The purpose of these reports is to bring particularly vulnerable people to the attention of those responsible for authorising, maintaining and reviewing detention.
A report may be relevant where a person’s health is likely to be harmed by continued detention, where there are concerns about suicidal thoughts, or where there is evidence that the person may have been a victim of torture.
If the Home Office failed to respond properly to a Rule 35 or Rule 32 report, this may be relevant to whether detention remained lawful.
Pregnant Women
Pregnant women are treated as adults at risk and are subject to specific safeguards.
Home Office guidance confirms that, under section 60 of the Immigration Act 2016, a pregnant woman detained for removal or deportation can normally only be detained for a maximum of 72 hours. This can be extended to an absolute maximum of one week only in exceptional circumstances and with Ministerial authorisation.
If you were pregnant when detained, the Home Office’s decision-making and safeguards should be examined carefully.
Children and Age Disputes
Unaccompanied children should only be detained in very exceptional circumstances, for the shortest possible time, and should not be held in an immigration removal centre.
If you were under 18 when detained, or if you were wrongly treated as an adult during an age dispute, you may have grounds to challenge the lawfulness of your detention.
Age dispute cases can be complex, particularly where the Home Office relied on an incorrect assessment or failed to apply appropriate safeguards.
EU Settlement Scheme Cases
The position for EEA nationals and their family members has changed significantly since Brexit.
It is no longer accurate to say that EEA nationals are generally exempt from immigration control. However, if you have status under the EU Settlement Scheme, or if you had a pending valid EUSS application, appeal or administrative review at the time of detention, this may be highly relevant.
The law in this area is technical and depends on the exact facts, including your EUSS status, whether you had a Certificate of Application, whether any appeal was pending, and whether deportation action was being pursued.
What compensation can be claimed?
The amount of compensation will depend on the facts of the case.
Relevant factors may include:
- the length of detention;
- the initial shock of detention;
- the impact on your mental or physical health;
- whether you were particularly vulnerable;
- whether the Home Office acted unreasonably or in a high-handed way;
- whether unnecessary force or restraints were used;
- whether you were denied access to legal advice, medication or family contact;
- whether your reputation, work, family life or immigration position was affected;
- whether there was an attempted or actual unlawful removal.
There may also be factors that reduce the amount of compensation. For example, the Home Office may argue that detention would have been lawful for part of the period, or that the person’s own conduct affected the decision to detain.
Each case must be considered carefully on its own facts.
What evidence is needed?
Useful evidence may include:
- Home Office detention paperwork;
- IS91 and IS91R forms;
- detention review records;
- bail applications and bail summaries;
- immigration application and appeal records;
- medical records;
- Rule 35 or Rule 32 reports;
- evidence of torture, trafficking, modern slavery, domestic abuse or other vulnerability;
- correspondence with the Home Office;
- evidence showing the length and location of detention;
- evidence of financial loss;
- evidence of the impact on your mental health, family life or reputation.
In many cases, it will be necessary to obtain your full Home Office records before a clear view can be taken on the strength of the claim.
Limitation Deadlines
Strict deadlines apply.
A false imprisonment or unlawful detention claim is generally subject to a 6-year limitation period. If the claim includes personal injury, including psychiatric injury, a shorter 3-year limitation period may apply. If the claim includes a claim under the Human Rights Act 1998, the usual deadline is 1 year, although the court has discretion in some circumstances.
Because limitation can be complicated, you should take legal advice as soon as possible.
How OTB Legal can help
We can help you understand whether your immigration detention may have been unlawful and whether you may have a claim for compensation.
As part of the initial investigation, we can consider:
- why you were detained;
- whether the Home Office had a lawful basis to detain you;
- whether removal was realistic within a reasonable period;
- whether your detention was properly reviewed;
- whether vulnerability, medical evidence or Rule 35 / Rule 32 evidence was properly considered;
- whether there are factors that may increase or reduce the value of your claim.
Where appropriate, we can obtain and review Home Office records, consider the merits of your case, and discuss the next steps with you.
Our Fees
We will discuss funding with you at the outset and confirm the fee arrangement in writing before any work is undertaken.
Depending on the case, this may include an initial investigation stage followed by further advice on whether the claim should be pursued. We will also explain any likely disbursements, such as barrister’s fees, medical evidence, expert reports or court fees, before they are incurred.
You remain in control of how far you wish to progress your matter.
Next Steps
If you believe you were unlawfully detained by the Home Office, you should seek advice as soon as possible.
The sooner your case is reviewed, the easier it may be to obtain records, preserve evidence and assess whether a claim can be brought.
You can contact our Personal Immigration Team to discuss your circumstances and receive initial advice on the next steps.
