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Unlawful Detention. Does the government owe you money?

It is not uncommon for the Home Office to unlawfully detain people.  Surprised?  Well each year the government pay out millions in damages for people the Home Office have unlawfully detained.   Last year the government paid out £8.2 million in damages for unlawful detention. 

Why does the Home Office unlawfully detain people?

The reasons as to why detention is unlawful can vary. 

In the recent case of AKE (anonymity granted) the Home Office detained a mentally ill Iranian man suffering from post-traumatic stress disorder and bi-polar affective disorder with psychotic symptoms.  The man was detained twice for a total of 838 days over three years.  The man was reportedly segregated for much of his detention to manage his behavior.  On release, AKE was not provided with accommodation or any assistance by the Home Office and he was, shortly after his release, sectioned under the Mental Health Act 1983. 

Subsequently, bail conditions were imposed on AKE which he was too unwell to comply with and there were repeated threats by the Home Office to re-detain him, despite the Home Office recognising that they were unable to do so.   AKE was recently awarded £100,000 by the courts in damages for his detention. 

The Supreme Court ruling on the Dublin III convention

Just last month the Supreme Court found that the Home Office’s near routine detention of asylum seekers pending removal under the Dublin III convention was unlawful.  This will affect those detained for removal to a country where they have already claimed asylum between 1 January 2014 and 15 March 2017.  During the period of 2015 and 2018 nearly 19,000 requests were made under the Dublin convention for people to be returned to the EEA country where they first applied for asylum.  These applications for return are not always successful, there are strict time frames that must be adhered to from both sides.  This is likely to mean that many of those unlawfully detained in that period may still be in the UK. 

A common reason is the Home Office detaining people who have been victims of torture.   It is Home Office policy to not detain victims of torture.  Other common features of unlawful detention claims include detaining people who have children without properly conducting a ‘family split’ assessment to determine the best interests of the child.  On some occasions I have seen Home Office files where there is a record of the Home Office being aware that detention was unlawful. 

Detention must be proportionate, so even if a person has none of those key indicators cited above, such as mental health difficulties, torture, family splits and so on, detention could still be unlawful. 

What to do if you were detained in the past?

If you are detained, or have been detained previously, you should look into whether that detention was lawful.  In order for one of our unlawful detention lawyers to do this it is likely we will need copies of medical records, copies of detention records, Home Office files and so on.  We can obtain the required documents on your behalf from the relevant authorities.  In many instances, where records show that detention was unlawful, the Home Office will make an offer for damages and to cover your legal costs.  This offer needs to be carefully considered, as if you fail to take a higher offer than you are ultimately awarded by the court, you can be penalised in awards of costs for unnecessary litigation. 

Bear in mind that whilst £8.2 million was awarded in damages last year for unlawful detention, that will only have been awarded to people who challenged the Secretary of State for the Home Department.  The figure which had the potential to be claimed is likely to be much, much higher.  

For expert legal consultation call: 020 7118 4546 or email info@westkin.com.

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