Unlawful Detention

What is Unlawful Immigration Detention in the UK?

Unlawful immigration detention in the UK occurs when a person is detained by immigration authorities without sufficient legal justification or when the detention continues for longer than the law allows.

UK immigration guidelines allow for detention to:

• Conduct the removal process
• Verify someone’s identity
• Identify the basis of someone’s claim that they are legally in the UK
• Ensure they comply with the conditions attached to immigration bail

In the final case, the enforcement officer must have a genuine reason to believe the individual won’t comply. Immigration detention may be unlawful if it isn’t covered by these reasons.

Detention may also be unlawful based on the period during which it is in effect. The detention period must be reasonable. It must end if it becomes clear that deportation won’t be effected within a reasonable period.

Officials must also act with diligence and expedition to effect removal during the detention period.

What is Lawful Immigration Detention?

For immigration detention to be conducted lawfully, the following process must be applied:

1. Legal grounds for the detention are established.
2. A vulnerability screening is conducted in accordance with the “Adults at Risk” policy.
3. Caseworkers verify a removal timetable.
4. The detaining officer formally serves form IS.91 (Authority to Detain) and form IS.91R (Reasons for Detention).
5. The officer explains the detainee’s rights to the detainee via an interpreter, if necessary.
6. Secure transport to the facility is arranged, and an initial briefing is given.
7. The detainee undergoes a medical examination.

Throughout the detention, Home Office caseworkers must conduct regular reviews to ensure the detention remains lawful. They must also review medical alerts as they arise to make reasoned judgments on whether a release is necessary. The detainee must also have access to a first-tier tribunal to apply for immigration bail at any point.

Is Unlawful Detention the Same as Unlawful Arrest?

There are several legal similarities between unlawful arrest and detention, but they are not identical. An unlawful arrest is the process of being taken into custody by police or immigration officials. It occurs when an officer arrests without reasonable grounds or proper legal authority.

Unlawful detention can occur if an individual is put into immigration detention following an unlawful arrest. An arrest can be lawful, but the detention can still be unlawful.

An example would be if the arresting officer had reasonable grounds to suspect an immigration offence had been committed, but insufficient action was taken to investigate and effect deportation.

Common Examples of Unlawful Detention

There are some examples of unlawful detention which solicitors deal with repeatedly, including times when the detained person:

• Has no realistic removal prospect
• Is vulnerable, such as if they are a victim of human trafficking or modern slavery
• Faced administrative inaction or delays
• Holds a valid leave to remain, which officials have ignored or failed to recognise
• Belongs to a protected group, such as being under 18, pregnant, or an established citizen
• Was imprisoned based on factual errors

If you have been unlawfully detained, reach out to IAS for support at +44 (0)333 414 9244.

Rights While in Immigration Detention

Even if there is a lawful justification for your detention, you will still benefit from certain protected rights. For example, you will be able to contact and consult with a legal representative. You’ll be able to work with them to apply for immigration bail or challenge the lawful justification of your detention.

If you don’t speak English, you’ll be able to access an interpreter. You must also be notified of the reasons for your detention and be able to contact and receive visits from your home country’s consulate.

There are also rights that immigration detainees have to protect their well-being. You should receive a comprehensive healthcare assessment from a qualified medical professional within 24 hours of your arrival.

Throughout your time in detention, you should continue to receive healthcare of an equivalent standard to that available in the local community.

Finally, there are freedoms that protect the daily lives of immigration detainees. You may maintain communication with family members and receive visits from them.

Immigration detainees must also have the right to practise their religion, often through access to a multi-faith room. Likewise, food provided to you should account for any religious requirements.

How Do I Claim Damages for Unlawful Detention?

The first step when you are unlawfully detained is to secure release. Once you have been released, you may be entitled to compensation from the Home Office based on the harm caused by your detention. You may be able to get compensation based on the loss of your liberty, distress, and financial losses.

For example, claiming lost earnings if you become unemployed while detained. You may also get additional damages if officials acted in an unreasonable manner that has caused physical or mental trauma.

The steps to claim compensation are:

1. Ensure you are acting within the time limit.
2. Choose legal assistance.
3. Gather evidence to support your claim that you have suffered damages.
4. Work with your lawyer to send a pre-action letter.

Once your letter is sent, the Home Office may offer to settle out of court. This is where they agree to pay you a specific amount in damages, avoiding a time-consuming and expensive legal process. If you don’t think the damages offered are sufficient or the Home Office refuses to pay damages, you can take the matter to civil court.

In addition to guiding you through the process of claiming compensation, the IAS team can also provide a legal assessment. They can establish whether your detention was unlawful and whether police powers and enforcement procedures were properly exercised.

How Much Might I Receive in Damages for After Unlawful Detention?

There is no set amount of damages that people who have suffered unlawful immigration detention will receive. It is based on the amount of time you spent detained and the amount of harm that this detention caused. However, previous cases can indicate what you can expect.

British courts have found that in a “straightforward case of wrongful arrest and imprisonment”, damages started at around £1,000 for the first hour in 2019. This grew to around £6,000 for wrongful imprisonment of 24 hours. As seven years have now passed, payouts have likely increased significantly due to inflation.

The total compensation you can receive increases massively for extended periods of detention. Aggravating factors further increase the damages claimed. As a result, some immigration detainees have been able to claim six-figure damages.

It is also possible to claim damages across multiple periods of unlawful detention. For example, in Abdulrahman Mohammed v The Home Office (2017), the claimant received £78,500 in damages. They had been detained for 445 days across three separate periods.

The Harm Caused by Unlawful Detention

The damages that you will receive often have a basis in the amount of harm that your unlawful detention causes. This harm can have a profound impact on your life and health, even if it lasts only a few hours.

For many detainees, unlawful detention leads to physical and mental health problems. The loss of freedom and uncertainty about potential deportation can cause anxiety and depression. This has led to self-harm in many cases. Poor conditions inside an immigration detention centre can also worsen pre-existing conditions or cause new health problems. All of these factors will be worsened if your detention causes you to lose access to ongoing medical treatment.

Even if you are released from the immigration detention centre without suffering health problems, there are still a range of harms that are recognised by civil courts. The first is the loss of liberty itself, which worsens the longer that someone is unlawfully detained. Another harm is the time away from your family, which can strain these relationships, especially if your family members depend on you, extending the harm beyond yourself.

Finally, being detained can harm your professional and personal reputation. Losing your job due to being detained unlawfully can make it harder to find work. It may also lead to ostracisation in your local community.

Conditions Inside Immigration Detention Centres Worsen Harm

Recent reporting on conditions inside immigration detention centres reveals several factors that can cause additional harm. Asylum Information Database (AIDA), an organisation managed by the European Council on Refugees and Exiles (ECRE), has reported on the purpose-built detention centres in the UK.

It has found that they are run as high-security prison systems, managed by private companies. The Brook House immigration detention centre is particularly concerning, with poorly ventilated cells and windows.

Poor conditions have persisted despite the parliamentary inquiry into Brook House in 2023. This inquiry found that staff at the facility were verbally and physically abusing detainees.

The British Medical Association has also expressed its concerns that healthcare needs are inadequately met in detention centres and disabilities are frequently not identified. Missed mental health diagnoses are particularly common. While a high standard of everyday healthcare should be available, in practice, it is only available in emergency situations.

Some harm also comes from the actions of some detainees. A 2024 report from HM Inspectorate of Prisons of the Harmondsworth facility found that violence and drug use were commonplace.

How Can IAS Help?

The Home Office’s guidance states that immigration detention must be used sparingly. However, this goal sometimes doesn’t align with excessive punitive action taken against those suspected of breaking immigration rules.

Working with an immigration solicitor is essential for your protection while you are unlawfully detained. These professionals can also help you get the compensation owed to you from the Home Office after your release.

For help with immigration detention cases, contact IAS online or at +44 (0)333 414 9244 for personalised advice.