unlawful detention

June 6

Unlawful Detention

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OTB Legal

Unlawful Detention

If you have been subject to unlawful immigration detention by the Home Office, you could be entitled to make a claim for compensation and damages.

The legal principles on Unlawful Immigration Detention

The Home Office are able to detain a person where the detention of such a person is legally justified. For example, where a person is detained pending the making of a deportation order and therefore pending their removal from the UK. Even in this situation, the Home Office may only use the power to detain for the period that is reasonable in all the circumstances. Where it becomes apparent that the Home Office will not be able to deport a person in a reasonable period of time, they should not continue to exercise the power of detention. The Home Office would therefore need to act with reasonable expedition to effect removal.

However, on occasions the Home Office can act beyond the scope of their powers and use the act of detention outside the boundaries of the law.

How to know if you were unlawfully detained?

In accordance with Article 5 ECHR every person has the right to liberty and security and no-one should be deprived of their liberty except in limited situations. You may be entitled to claim compensation for your unlawful immigration detention

The Court may rule that you have been unlawfully detained in some of the following circumstances:

  • If you are a victim of torture or trafficking and you have evidence to prove the same, and the Home Office did not comply with their policies to take this into account;
  • If you are a person who is in need of constant medical care and you have been detained by the Home Office;
  • If you are 24 or more weeks pregnant, or suffer from a severe disability or from a mental illness at the time of your detention;
  • If you have valid leave to remain in the UK at the time of your immigration detention and the Home Office has treated you as an over stayer 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 detained you on the basis that you were not exempt from the immigration control at the time of your detention;
  • If you are a British citizen;
  • If you were detained by the Home Office 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.

The list above is not exhaustive and there may be other circumstances in which you may have been unlawfully detained.


There are certain factors which would increase the amount of damages you could claim from the Home Office, such as:

  • If you are a vulnerable person, i.e. a torture victim, a person with mental health issues, a child or a victim of trafficking;
  • The initial shock of detention;
  • Poor behaviour of the Home Office or their staff in relation to the initial detention or there conduct thereafter;
  • The effect on your mental health;
  • If you are a person of good character and suffered reputational damage;
  • If high-handed treatment was used, such as the unnecessary use of handcuffs or if you were denied a phone call;
  • If you were subject to unlawful removal and also unlawful detention.

There are also factors which could decrease the amount of damages you could claim, and we would be happy to discuss this with you further.

How we can help?

For a claim for unlawful detention to succeed, you would need to prove you were detained by the Home Office. The Home Office would then need to provide evidence and demonstrate that the detention was lawful in all the circumstances. In the event the claim is not resolved between the Claimant and the Home Office, formal court proceedings would need to be issued and the Court would then be the decision maker.

The Next Steps

We offer a free initial consultation where we can discuss the circumstances of your detention and provide initial advice regarding the prospects of your claim.

We will assist you in firstly determining if you were unlawfully detained by the Home Office as part of the initial investigation stage. We would also consider all the factors of your potential claim to identify if there are any factors which would increase the amount of damages you could claim or if there are any factors which would result in a decrease of your damages.

Once we are instructed, we will obtain and review your full records from the Home Office and other relevant authorities to establish the basis upon you were detained. Upon review of your records we will discuss your case with a Barrister to assess the merits and prospects of success of your claim. At this stage you will gain a clear strategy on how to move things forward.

The aim of this initial investigation stage is to ensure that we assess the basis upon which you were detained, and if the Home Office acted unlawfully. Once the Investigation Stage is completed you have the choice of instructing us to assist you in pursuing your claim against the Home Office. You remain fully in control of how far you progress your matter with us. Whatever you choose, you will be armed with expert legal advice.

Our Fees

Your potential claim will be funded by way of a discounted fee agreement. This means that we will be charging for work undertaken for you at our normal hourly rate (set out below). You will be liable for these costs if the claim is successful. In the event the claim is successful, we may be able to recover these costs from the Home Office.

In the event the claim is not successful, then the costs that you incur will be limited to the ‘discounted fee’ that has been agreed. Before proceeding with your case further we will confirm the discounted fee we will charge for the work being undertaken in preparing a letter before claim. We will also confirm our discounted fee for each stage of the work done in representing you in submitting a claim against the Home Office.

A success in your case will be if your claim for damages is finally decided in your favour, whether by a Court decision or an agreement to pay you damages or in any way that you derive benefit from pursuing the claim.

'Finally' means that your opponent:

  • Is not allowed to appeal against the court decision;
  • Has not appealed in time;
  • Has lost any appeal.

How we calculate our basic charges

These are calculated for each hour engaged on your matter. Routine letters and telephone calls will be charged as units of one tenth of an hour. Other letters and telephone calls will be charged on a time basis. The hourly rates in a typical case are:

Grade of Fee Earner

Hourly Rate

1 Solicitors with over eight years post qualification experience including at least eight years litigation experience.

£260 plus VAT

2 Solicitors and legal executives with over four years post qualification experience including at least four years litigation experience.

£210 plus VAT

3 Other solicitors and legal executives and fee earners of equivalent experience

£180 plus VAT

4 Trainee solicitors, paralegals and other fee earners.

£140 plus VAT

We review the hourly rate in April each year and we will notify you of any change in the rate in writing.

Disbursements

Disbursement is the term used for fees other than our legal costs. This could include barrister’s fees, expert reports, travel expenses and Court fees. All disbursements must be paid on account before we can incur the costs.

We will always obtain your instructions and provide you with any costs quoted before you incur any further costs for later stages of the case.

Limitation deadlines to consider when making a claim for unlawful detention

Please note that if you wish to pursue a claim for unlawful detention you would need to issue formal court proceedings within 6 years from the date you were unlawfully detained if you wish to proceed with your unlawful detention claim.

However, if you were subject to personal injury during detention, such as physical or mental injury, then you would need to issue formal court proceedings within 3 years from the date you were unlawfully detained.

If you wished to include a claim for breach of human rights as part of your unlawful detention claim, you would need to issue formal court proceedings within 1 year from the date you were unlawfully detained.

We would be happy to discuss the steps which need to be taken before issuing formal Court proceedings.

Further Immigration Advice

As always we are delighted to support you, if you have a question on anything we have written about, or if you wish to discuss your unlawful immigration claim further. You can book a free appointment to speak a member of our team by clicking the button below:

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