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.

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.

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.

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.

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.

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.

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.

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.

In R (K) v SSHD the Court of Appeal upheld the first instance decision that there was no duty on the Secretary.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Khadir – 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.