The focus of immigration practitioners has understandably been in regularising a client’s immigration position and seeking to obtain release for a client who is in detention. The area of compensation for wrongful detention or other wrongful acts by the immigration authorities has until recently been somewhat neglected.
16.12.2014 Detention in the detained fast track for appeals not transparent or justified
R (Detention Action) v Secretary of State for the Home Department
In another landmark judgment, the Court of Appeal held that the SSHD’s DFT policy including the appeals part of the process was not sufficiently certain or transparent. Had it been necessary to do so, the court would also have gone on to find that the SSHD had not shown lawful justification for including appeals in the DFT. Accordingly, individuals can only be detained during their appeals if their detention is justified on general criteria which requires a risk of absconding and reasonably imminent removal.
09.07.2014 Detained fast track operating unfairly
R (Detention Action) v Secretary of State for the Home Department (Equality and Human Rights Commission intervening)
In a landmark judgment, Ouseley J held that the detained fast track (DFT) process to determining asylum claims was operating in such an unacceptably unfair way for vulnerable or potentially vulnerable individuals as to be operating unlawful, and made a declaration to that effect. This is the first case in which a UK court has upheld a complaint that the DFT at a system level has been operating unlawfully.
08.07.2014 Inhuman and degrading treatment at Yarl’s Wood
R (MD) v Secretary of State for the Home Department
The court found that a woman who developed severe mental illness as a result of immigration detention at Yarl’s Wood was unlawfully detained over a near 11 month period. The conditions she was detained in, which included frequent segregation and use of restraint by male guards, were inhuman and degrading in breach of article 3 ECHR.
23.05.2014 Statute does not defeat common law restrictions on detention
R (Francis) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening)
The Court of Appeal held that persons detained under certain statutory powers of detention where a criminal court had recommended deportation expressed in mandatory language (“shall be detained”) are subject to the Hardial Singh principles, which require that they be exercised for the sole purpose of facilitating deportation and only for a period reasonably necessary for that purpose. However, the mandatory language of these provisions that a decision to detain which breached other public law duties, for example the SSHD’s detention policy, did not render detention unlawful.
28.01.2014 Court of Appeal gives guidance on detention of the mentally ill
R (Das) v Secretary of State for the Home Department (Mind and Medical Justice intervening)
The Court of Appeal provided important guidance on the SSHD’s policy that those with serious mental illness which cannot be satisfactorily managed in detention should not normally be detained. The policy should not be subject to fine analysis and interpreted like a statute. The threshold for the policy being engaged was not whether the mental disorder was at a level that in-patient treatment was required. It must be serious to mean that it cannot be satisfactorily managed in detention. In assessing whether the illness can be satisfactorily managed in detention the SSHD should have regard to the medication a person is taking, whether her demonstrated needs can be met, the facilities at the detention centre and the expected period of detention before removal. Where the policy applies, there is a high hurdle to overcome to justify detention: liability to be removed and refusal to leave voluntarily will not be enough and detention cannot be justified to keep a person safe or in order to provide medical treatment.
05.12.2013 Court of Appeal upholds detention of hunger striker
R (IM (Nigeria)) v Secretary of State for the Home Department
The Court of Appeal upheld the detention of a man whose health had seriously deteriorated as a result of prolonged food and fluid refusal (FFR) and who had been assessed as unfit for detention and unfit for travel. The SSHD had the power to detain a person in hospital in order receive medical treatment. A person who is unsuitable for detention in a detention centre may be suitable for detention if detained in hospital. The claimant’s capacitous decision to refuse medical treatment took him outside of the SSHD’s policy that those with serious medical conditions should not normally be detained. There was a realistic prospect of the claimant changing his mind about his FFR and there was a realistic prospect of him being removed within a reasonable period of time.
06.10.2013 Aggravated and exemplary damages for unlawful immigration detention
R (Lamari) v Secretary of State for the Home Department
The High Court awarded aggravated damages of £5,000 and exemplary damages of £10,000 as well as basic damages of £10,000 to a mentally ill man unlawfully detained for 23 days after a lengthy period of lawful detention. The SSHD had wilfully breached an undertaking given to the court to release the claimant and had failed to make proper arrangements for his release leaving him stranded outside on the night of his release. There had been a lack of inquiry into what went wrong and the SSHD had failed to file evidence to explain what had happened and what lessons had been learned.
10.07.2013 Supreme Court judgment on detention of unaccompanied children
R (AA) (FC) v Secretary of State for the Home Department
The Supreme Court rejected an appeal from an unaccompanied child who had been detained at a time when a local authority had erroneously assessed that he was an adult. It had been argued that the question of whether he was a child for the purpose of s55 of the Borders, Citizenship and Immigration Act, which required the SSHD to have regard to the need to safeguard and promote the welfare of children, was a precedent fact. At the time he was detained he was in fact a child and so the SSHD had not complied with the s55 duty which meant his detention was unlawful. The court disagreed, holding that s55 imposed a duty on the SSHD to ensure that her functions were discharged in compliance with the s55 duty and vicarious liability to ensure officers complied with s55 and associated guidance. The SSHD had complied with her s55 duty by publishing detailed policy guidance which her officials had complied with.
12.06.2013 Court of Appeal finds detention of gay Jamaican man in detained fast track unlawful
R (JB (Jamaica)) v Secretary of State for the Home Department
The Secretary of State’s suitability policy on the detained fast track recognises that cases may not be suitable for the detained fast track where it is reasonably foreseeable that further enquiries are necessary to obtain evidence, without which a fair and sustainable decision could not be made, and where it is not possible to foresee that enquiries could be completed to enable a decision to be made within about two weeks. In the case before it, proper enquiries were not made at the screening interview and if they had been it would have been clear to any rational decision maker that a fair and sustainable determination of the asylum claim could not be made within about two weeks. The claimant’s detention over five weeks was unlawful throughout.
17.05.2013 Detention of victims of torture unlawful
R (EO) v Secretary of State for the Home Department
In finding that five victims of torture had been unlawfully detained, the High Court gave important guidance on the Home Office’s policy. If, without good reason, a detainee does not have a medical examination within 24 hours of admission to detention, as mandated by rule 34 of the Detention Centre Rules, that is sufficient to render detention unlawful. A detainee’s credibility is not relevant to the question of whether a medical report constitutes independent evidence of torture, but may be relevant to whether there are very exceptional circumstances to justify detention. “Torture” is defined with reference to the severity of harm and the purpose that it is inflicted rather than the identity of the perpetrator. If it is established that a decision to detain is flawed by material public law error, in order to avoid paying compensatory damages the Home Secretary has to prove that detention was justified.
22.03.2013 Home Secretary concedes absence of policy unlawful
R (Chen) v Secretary of State for the Home Department
A pregnant woman and three children brought judicial review proceedings against the Secretary of State alleging that the absence of a policy on the use of force on pregnant women and children during enforced removal was unlawful, including on the basis that there were unacceptable risks of their article 3 and 8 ECHR rights being breached. A judge granted an interim injunction prohibiting the use of force against the four claimants during removal except where necessary to prevent harm. The claimants applied to widen the injunction, and the day before the hearing the Secretary of State conceded that the absence of policy was unlawful and reinstated a previous policy, pending further consultation, which prohibits the use of force on these groups except where absolutely necessary to prevent harm.
12.10.2012 Detention of Somali national over 41 month period lawful
R (Muqtaar) v Secretary of State for the Home Department
In upholding the detention of a Somali national who had been convicted of criminal offences pending deportation, the Court of Appeal held that whilst under the Hardial Singh principles there had to be a realistic prospect of removal within a reasonable period of time for detention to be lawful, there could be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal could reasonably be expected to occur, and without any certainty that removal would occur at all.
11.07.2012 Private law claims where issues have been litigated in JR proceedings may be abuse of process
BA v Secretary of State for the Home Department
The Court of Appeal held that private law claims for false imprisonment may be struck out as an abuse of the process of the court where the issues in the claim have already be pursued (or should have been pursued) in earlier judicial review proceedings. In the cases before it, the claims were not struck out for reasons including: the focus of the earlier judicial review had been removal directions rather than detention; the claimants had not been culpable and the position of children had not been safeguarded; although permission had been refused on the papers in the judicial review, by then a letter before claim had been sent in the private law claim and the application for permission was not renewed to an oral hearing.
17.04.2012 Home Secretary’s policy on the detention of the mentally ill unlawful
R (HA (Nigeria)) v Secretary of State for the Home Department
The High Court found that a severely mentally ill man had been unlawfully detained over two periods when he was held in immigration detention contrary to medical advice. In the first period he had been held in solitary confinement and had been assessed as unfit for detention and requiring urgent admission to hospital under the Mental Health Act. In the second period, after he had received in-patient treatment in hospital, he was detained contrary to advice from a psychiatrist that he could not receive the treatment he required. The court also found that the conditions he was detained in constituted degrading treatment contrary to article 3 ECHR (only the third time such a finding had been made by a UK court) and declared that changes to the Secretary of State’s policy on the detention of the mentally ill were unlawful because they were introduced without consultation in breach of race and disability equality duties.
26.10.2011 Second finding by UK court that immigration detention inhuman and degrading
R (BA) v Secretary of State for the Home Department
The High Court found that a severely mentally ill man detained under immigration powers was unlawfully detained for 3 ½ months and subjected to inhuman and degrading treatment in breach of article 3 ECHR (only the second time a court had made such a finding in relation to conditions of immigration detention).
25.08.2011 Immigration detention of nearly five years unlawful
R (Sino) v Secretary of State for the Home Department
The High Court ruled that the detention of an Algerian national pending deportation for four years and 11 months was unlawful from the outset. It should have been apparent to the Secretary of State that there was an insufficient prospect of deportation to justify detention. It is thought that this was one of the longest periods of immigration detention outside of the national security context.
05.08.2011 First finding by UK court that immigration detention inhuman and degrading
R (S) v Secretary of State for the Home Department
The court High Court found that a severely mentally ill man detained under immigration powers was unlawfully detained for 5 months. It also found that the conditions he was detained in at Harmondsworth IRC constituted inhuman and degrading treatment (the first time a UK court found conditions of immigration detention to breach article 3).
25.05.2011 Failure to review detention as required by policy renders detention unlawful
R (Kambadzi) v Home Secretary
By a majority (3-2) the Supreme Court affirmed that a decision to detain in breach of a public law duty which bears on and is relevant to a decision to detain renders detention unlawful and a false imprisonment. This includes a failure to apply a policy that is closely related to the decision to detain. In the cases before it, there had been a failure to review detention at the intervals required by the Home Office’s detention policy (then Chapter 38 of Operations Enforcement Manual, now Chapter 55 of the Enforcement Instructions and Guidance
). That was sufficient to render detention unlawful. However, if detention is reviewed at the wrong grade this would render detention unlawful.
15.04.2011 Detention of mother separated from her children unlawful
R (NXT) v Secretary of State for the Home Department
A mother was detained pending deportation and she and her children challenged her detention in judicial review proceedings. The High Court held that in deciding whether to apply the automatic deportation provisions, the Home Office and the tribunal were required first consider the best interests of any children affected as a primary consideration. The court found that the mother had been unlawfully detained because it should have been apparent to the Secretary of State that she could not be deported until a parenting assessment had taken place which required her release from detention.
26.03.2011 Supreme Court rules detention pursuant to unpublished policy unlawful
R (Lumba) v Home Secretary
A majority of a nine member Supreme Court (6-3) held that a blanket, unpublished policy of detaining foreign national former prisoners was unlawful and that the application of the policy in the individual cases before it meant that detention was unlawful. A breach of a public law duty bearing on and relevant to the decision to detain is sufficient to render detention unlawful. Causation is not relevant to liability but may be relevant to the assessment of compensation – if notwithstanding the breach of public law detention was justified, nominal rather than compensatory damages be payable. In all of the cases before it, detention was justified by reference to policy and common law principles and therefore the claimants were awarded nominal damages of £1.
The court also gave important guidance on the Hardial Singh principles, including: time spent pursuing legal challenges to removal was not to be discounted from the assessment of whether a reasonable period has or will be exceeded; the refusal to accept voluntary return is not relevant to the assessment; and the impact of detention on a person’s mental and physical health is relevant to the assessment.
20.07.2010 Immigration detention to prevent self harm an improper purpose
R (AA (Nigeria)) v Secretary of State for the Home Department
The High Court found that the detention of a severely mentally ill suicidal man over a nine month period was unlawful because it was contrary to the Home Office’s policy that the mentally ill should only be detained in very exceptional circumstances. Immigration detention cannot be used to protect a person from a risk of self harm or suicide.
21.05.2010 Immigration detention to facilitate transfer to the custody of another state an improper purpose
HXA v Home Office
The High Court found the immigration detention of an Iraqi national in order to investigate whether he could be transferred to the custody of the Iraqi authorities was unlawful. The statutory immigration powers were to be narrowly construed and could only be used for the purpose of effecting and enforced removal from the UK
27.04.2010 Court of Appeal upholds award of exemplary damages of £27,500
Muuse v Home Secretary
The Court of Appeal upheld awards of basic, aggravated and exemplary damages (£20,000, £7,500 and £27,500 respectively) made to a Dutch national unlawfully detained after the end of s prison sentence on the erroneous basis that he was a Somali national. The judge had been entitled to make a significant award of exemplary damages because of the unconstitutional and arbitrary exercise of executive power which was outrageous.
06.05.2009 Referring age dispute cases for criminal prosecution without determination as to age is unlawful
In HBH v SSHD
the Administrative Court found that the Secretary of State had operated an unlawful practice of referring individuals to the CPS as adults for a criminal offence under section 2 Asylum (Treatment of Claimants) Act in circumstances where the UKBA had conducted a cursory age assessment of the individual.
07.04.2009 Formulation of test of legality for claim for unlawful detention based on refusal of leave to enter
In Kullas v SSHD
the Administrative Court found that the test for a claim for unlawful detention based on a wrongful decision to refuse leave to enter the UK with the consequence that the individual would be subject to detention was a question of whether the officer acted unreasonably according to wednesbury irrationality. The assessment of the officer’s decision would be based on the information actually known to the immigration officer not the information available to the Secretary of State.
19.12.2008 Secret policy concerning the detention of foreign national prisoners
In R(Abdi and others) v SSHD
the Administrative Court found that the Secretary of State’s decision to reverse the presumption in favour of liberty in respect of decisions concerning the detention of foreign national prisoners pending deportation proceedings was unlawful. The fact that the change in policy was not published for a period of eighteen months also rendered the policy unlawful. The individual claimants detained under the unlawful policy who sought damages for unlawful detention were required to demonstrate that the unlawful policy was directly causative of their detention in order to recover compensation. Of the four cases considered by the court, none were able to demonstrate this causation and so the claims for damages failed.
04.12.2008 Assessment of damages for prolonged detention
R(PB) v SSHD
was a first instance decision concerning the level of quantum to be awarded to a claimant unlawfully detained for a period of approximately six months. The basis of the claim for unlawful detention was a failure to conduct a medical screening required by the Detention Centre Rules which would have identified the claimant’s evidence of torture and so led to her release. The claimant was awarded £32,000 and a further £6,000 in aggravated damages.
06.11.2008 SK Failure to conduct reviews in accordance with policy does not found a claim in unlawful detention
In R(SK) V SSHD
the Court of Appeal found that detention which could be justified in accordance with Hardial Singh principles would not be unlawful if there was a repeated failure to review the detention as required by policy.
20.05.2008 Immigration detention is not excluded from the Disability Discrimination Act 1995
In Gichura V SSHD and another
the Court of Appeal ruled that the Claimant had an arguable case for unlawful discrimination on the grounds of disability against the Home Office and Kalyx, the private company responsible for the contracted out management of Harmondsworth Detention Centre. The basis of the decision was that the Defendants were potentially liable in respect of the provision of services under s19 DDA 1995 but that it was for the trial judge to decide whether any act of discrimination had occurred.
19.01.2008 Grand Chamber of European Court of Human Rights upholds legality of detained fast track at Oakington
Saadi v United Kingdom (13229/03)
the Grand Chamber of the European Court of Human Rights held that it was lawful under article 5(1)(f) to detain an asylum seeker for a short period in reasonable conditions in order his asylum claim under accelerated procedures where the decision to detain was taken in good faith and was closely connected to the purpose of preventing an unauthorised entry
11.01.2008 Compensation for a one week period of unlawful detention
In the case of Udu & Nyenty v SSHD
an individual detained under immigration powers for a period of one week with the majority of time being held in prison conditions was awarded £12,500 in respect of his loss of liberty. No award being made for aggravated or exemplary damages.
2008 Failure to refer age dispute case to Refugee Council gives rise to a claim in unlawful detention
LKN a child aged 14 years was detained by the Home Office under the fast track regime. Following the conclusion of this process the claimant who had maintained she was an adult, then advised she was a child. Home Office policy then required that this notification should have triggered a referral to the Children’s Panel at the Refugee Council who would have provided her with assistance to substantiate her claim to be a minor and so obtain her release. The failure to refer the claim was therefore causative of her detention.
19.12.2007 Court of Appeal finds no duty to make further inquiries where there is physical evidence of torture
In R (K) v SSHD
the Court of Appeal upheld the first instance decision that there was no duty on the Secretary.
31.10.2007 Control orders found to be unlawful
Secretary of State for the Home Department v JJ and others
– control orders imposed by the Secretary of State under powers provided by the Prevention of Terrorism Act 2005 on five Iraqi nationals suspected of involvement in terrorism-related activities were found to contravene Article 5 of the European Convention. Whilst the individual claimants were not formally detained, the nature and effect of the control order was found to amount to a deprivation liberty contrary to Article 5.
07.09.2007 Detention of individual suffering from a mental illness found to be unlawful
In R (MMMH) v SSHD
the detention of an immigration detainee pending deportation proceedings which would otherwise have been lawful was held to be unlawful. The basis for the decision was that that the Home Office policy prohibited the detention of those suffering from a mental illness unless there were exceptional circumstances. The court held that in order to fall within the ambit of the policy an individual would need to be suffering from a mental disorder of a minimum level of severity but that in this instance there was no evidence that the claimant’s diagnosis had been considered in the decisions to detain and this rendered the detention unlawful.
30.07.2007 Court of Appeal revisits the issue of reasonableness of detention in the context of foreign national
In R (A) v SSHD
a failed asylum-seeker convicted of serious sexual offences against a child was found to be lawfully detained for a period of three years following the conclusion of his criminal sentence. Although there was very limited evidence to indicate that he could be removed by the Home Office within a foreseeable timescale during his detention, the fact that he refused to return voluntarily to Somalia and was assessed as a high risk of committing further offences was considered relevant to the assessment of the reasonableness of detention. Taking account of these factors the detention was found to be reasonable, the volatile conditions of Somalia to which the claimant was to return voluntarily were not found to be relevant to the reasonableness of detention.
18.07.2007 Court considers the legality of the Home Office’s policy on the detention of families
In R (S) v SSHD
the Administrative Court found that the wording of the Home Office’s policy on the detention of families with children was lawful so long as this was applied with a degree of rigour not present when decisions were taken to detain individual adults.
2007 Home Office admits its policy on the detention of age dispute cases is unlawful
Following litigation lasting more than two years and the submission of evidence from the Refugee Council that the Home Office’s age dispute policy was operating to detain large numbers of unaccompanied children in immigration detention, the policy was accepted as unlawful. In making this concession the Home Office accepted that the policy failed to strike the right balance between immigration control and the importance of avoiding the detention of unaccompanied children.
20.12.2006 Interim award of damages for unlawful detention
In R (E) v SSHD
the Administrative Court found that the appropriate authority for determination of compensation for unlawful detention in the immigration context was Thompson and Hsu v Commissioner of Police for the Metropolis as opposed to ex parte Evans.
22.05.2006 Systemic failure to medically screen detainees with evidence of torture
R (D and K) v SSHD
found that there was an accepted and prolonged failure on the part of the Home Office and the private company responsible for the management of Oakington Detention Centre to comply with the requirement of the Detention Centre Rules to ensure all detainees had a medical assessment within 24 hours of their arrival in detention. This systemic failure gave rise to a claim for unlawful detention on the part of the two claimants on the basis that had such assessments taken place they would have led to a report which would in turn have constituted independent evidence of torture. Had such a report been made Home Office policy prohibiting the detention of those with evidence of torture would then have required their release from the fast track and detention.
07.04.2006 Removal in circumstances that deny individual access to legal advice - detention held to be unlawful
The case of R (Karas) v SSHD
found that detention and removal of a husband and wife was unlawful in circumstances in which there were outstanding representations prior to detention, no notice of removal directions to the immigration representatives and when the couple were taken into detention in the evening with a view to removal on the following day before office hours. The detention became unlawful on a different basis following the wife’s claim for asylum shortly after the inception of the detention.
01.11.2005 Failure to give reasons for detention resulting in prejudice is held to be unlawful
In Faulkner v SSHD
the Administrative Court held that if the failure to give reasons for a Claimant’s detention under the Immigration Act resulted in prejudice that this rendered the detention unlawful.
16.06.2005 Prospect of removal required for detention ‘pending removal’ to be lawful
– the House of Lords decided that whilst the power to detain contained in Schedule 2 to the Immigration Act 1971 is expressed as detention 'pending removal', that this did not mean anything more than 'until' removal, as long as there was some prospect of removal being achieved.
27.01.2005 Unlawful immigration detention authorised by Home Office open to challenge in private law actions
In ID and others v The Home Office
there were a number of issues that were before the Court of Appeal. Firstly the Court was asked to decide whether a claim that detention was an unreasonable exercise of the discretion to detain and/or in breach of policy had to be brought in public law proceedings by judicial review rather than as here a private law damages claim. The Court of Appeal held that the relevant question under the Civil Procedure Rules was not whether 'the right procedure' had been adopted but whether the forum used deprived a party of the opportunity of having their case heard justly. Where the case was primarily about damages, and might involve cross examination and a jury private law proceedings were most appropriate. The Court held that the fact that the detention was carried out by a private contractor did not mean that the Home Office were not liable given that the detentions were caused by the immigration officers who authorised them. Lastly the Court of Appeal held that foreign nationals did not fall into a special category emphasising the particular importance that the law attached to the liberty of the person and that it was beyond doubt that the rule of law extended not simply to British nationals but also to immigrants subject to administrative detention.
R (Nampewo) v SSHD - the Administrative Court granted a writ of habeas for the Claimant who had been detained by Immigration Officers after having being granted bail by an Immigration Judge. The case was transferred for a hearing on the assessment of damages, in the event that these were not agreed.
R (Sow) v SSHD In another case of detention following the grant of bail it was accepted by the SSHD that detention was unlawful and the Claimant was released following an application for habeas and judicial review. The case was transferred for a hearing on the assessment of damages, in the event that these were not agreed.
16.12.2004 Indefinite detention of foreign nationals held to be incompatible with the ECtHR
A and others v SSHD
- in the case of the indefinite detention of those suspected to be international terrorists the House of Lords held that that the UK’s derogation from Article 5 in the terms of the Human Rights Act 1998 (Designated Derogation) Order 2001 was unlawful and given that this was secondary legislation quashed the order. The House of Lords also declared that section 23 of ATCSA was incompatible with Articles 5 and 14 of the European Convention in so far as it was disproportionate and permitted detention of suspected international terrorists in a way that discriminated on the grounds of nationality or immigration status.
08.12.2003 Decision to detain in Immigration detention to be made in accordance with published policy
In Nadarajah and another
the Court of Appeal held that in order for detention to be lawful under the Immigration Act 1971 that it had to be in accordance with published policy. The policy and operational guidance to Immigration Officers is contained in Chapter 12 of the White Paper 'Fairer, Faster and Firmer – A Modern Approach to immigration and Asylum'
published 1998, various subsequent parliamentary statements
particularly relating to the Oakington fast track and Chapter 38 of the Operational Enforcement Manual ('OEM')
and various Immigration Directorates’ Instructions.
31.10.2002 Fast track detention not required to be necessary for article 5 compliance
In R (Saadi) v SSHD
the House of Lords held that a period of a week’s detention in the Oakington fast track for asylum applicants who were not considered to be at risk of absconding was not required to be 'necessary' for the purposes of article 5(1)(f) ECtHR. The detention was found to be lawful as it was for the purposes of preventing unauthorised entry and the 'short period' of detention was not found to be arbitrary. The ECtHR has declared this case admissible and so Strasbourg will examine whether detention for administrative convenience breaches Article 5.
R v SSHD ex parte I
- in a further case applying the principles set out in Hardial Singh the Court of Appeal ordered the release of an Afghani national detained for 16 months after the conclusion of a criminal sentence.
2001 - 2005 DS v Home Office was one of a series of damage settlements over these years in private law actions for those detained under the Immigration Act.
17.12.1997 Damages payable for unlawful detention after significant change in strength of asylum claim
R v (1) Special Adjudicator (2) Secretary of State ex parte B
- the Administrative Court granted a declaration that detention following a significant change in the strength of the asylum claim prior to eventual release was unlawful and that damages should be payable.
19.02.1997 Immigration officers found to hold no duty of care to an immigration detainee
In W v Home Office
the Court of Appeal held that an immigration officer did not hold a duty of care in negligence to an immigrant in decisions made about their detention and so no claim for negligence could be brought for a careless decision making that led to further detention. The Court of Appeal did hold that loss of liberty could constitute ‘damage’ under the tort of negligence.
25.10.1996 Article 5 challenge against prolonged detention of foreign nationals
The case of Chahal v UK
- was heard in European Court of Human Rights on the application of a Sikh separatist leader who was detained for 6 years. The ECtHR found that his detention was not in breach of article 5(1)(f) and held that the Home Office was justified in detaining him as deportation proceedings were in progress and were being pursued with due diligence given the exceptional circumstances of the case. However the Court did state that the arrangements at that time for bail in national security cases breached article 5(4). This led to establishment of SIAC.
27.03.1996 Reasonably necessary period of detention found to have been exceeded
In the case of Tan Te Lam v Superintendent of Tai A Chau Detention Centre
the Privy Council affirmed the principles set out in Hardial Singh, in ordering the release of Vietnamese boat people who had been held for 44 months as it could not be shown that removal was possible within a reasonable period of time.
23.06.1994 Restriction of false imprisonment claims
Ullah v Home Office
- the Court of Appeal held that there could be no claim in false imprisonment for detention following the issue of a notice of intention to deport absent bad faith, even if the notice had been improperly issued.
16.02.1984 Powers to arrest and detain required to be exercised reasonably
It was established in the Administrative Court in the case of Holgate–Mohammed
that in order to prove that an arrest was lawful it was necessary both to show that there was a statutory or common law power to arrest, and that this power was exercised reasonably. It also established that a challenge to the reasonableness of the exercise of the statutory power could be brought in private law proceedings as well as by way of judicial review.
1984 Immigration powers to detain held to be limited to a reasonably necessary period
In Hardial Singh the Administrative Court held that the statutory power to detain pending deportation, although unlimited on its face, was 'impliedly limited to a period which was reasonably necessary' and the SSHD had to show that he was acting expeditiously in progressing the deportation. Detention that exceeded such a reasonable period would become unlawful.