Unlawful Detention

Unlawful Detention

How do I challenge my detention?

Our clients are routinely detained under immigration powers in detention centres (officially known as ‘Immigration Removal Centres’). Many of our clients are survivors of trafficking, rape and torture. There are ways in which we can help detainees obtain release and potential damages (compensation) for unlawful detention.

The three main types of unlawful detention (under immigration powers) are:

A Breach of Hardial Singh Principles:

• The Secretary of State must intend to deport [or remove] the person and can only use the power to detain for that purpose;
• A person may only be detained for a period that is reasonable in all the circumstances;
• If before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation [or removal] within a reasonable period, she should not seek to exercise the power of detention;
• The Secretary of State should act with all diligence and expedition to effect removal.

The Secretary of State may have unlawfully breached the Hardial Singh Principles if you are in detention but there is no prospect of your imminent removal because one of the following applies to you:

• There is no estimated time of departure (ETD) for my removal/deportation;
• I do not have a passport/travel document and the Government has not secured a passport/travel document for me;
• I have signed up to voluntary return but the government has not taken steps, such as liaising with the authorities, to return me to my country of origin.

Breach of Policy

• Enforcement Instructions and Guidance
• Adults at Risk in Immigration Detention

The Secretary of State may have detained you unlawfully acted in a way that is inconsistent with her published policy if you are particularly vulnerable to harm in detention because one of the following applies to you:

• I am suffering from a mental health condition or impairment;
• I am a victim of torture;
• I am a victim of sexual or gender based violence, including female genital mutilation (FGM);
• I am a victim of human trafficking or modern slavery;
• I am suffering from post-traumatic stress disorder (PTSD);
• I am pregnant;
• I suffer from a serious physical disability;
• I am suffering from other serious physical health conditions or illnesses;
• I am aged 70 or over;
• I am a transsexual or intersex person;
• I have another condition (not in this list) that means that I am particularly vulnerable to harm in detention.

If you are in detention and one of these applies to you, you should request a medical assessment by a doctor within the healthcare unit of the centre and you should also seek legal advice to see if your ongoing detention is lawful.

The Home Office has a duty to carry out a physical and mental health examination (known as ‘Rule 34’) of every detainee within 24 hours of being brought to the detention centre. The Home Office often fails to carry out this examination. You should seek legal advice if you did not have this examination at all, or within 24 hours of arrival, or if you think your assessment was not properly done.

Our Public Law team specialises in these issues.

Breach of Human Rights

• Articles 5 and 8 of the European Convention on Human Rights (ECHR) guarantee the right to liberty and the right to a private and personal life respectively.

Toufique Hossain, Director of Public Law, ran the seminal case of Kambadzi, which established the principle that a failure to follow policy (detention reviews) can render detention unlawful. Since then, Toufique and the Public Law Team have relentlessly challenged unlawful detention policies, including:

• Detained Fast-Track
• Detention of Pregnant Women
• Detention of Survivors of Torture