Suing The Home Office: A Guide

Suing the Home Office is a complex and challenging process. While it is possible to seek legal recourse for issues such as unlawful detention, negligence, or breach of immigration rights, it is important to recognise that the Home Office has robust mechanisms in place to defend its decisions and actions. The process of challenging the Home Office can be emotionally and financially draining, and it is essential to carefully consider all options before initiating legal proceedings. In this regard, seeking expert legal advice from experienced solicitors or immigration lawyers is crucial. They can guide individuals through the intricacies of the legal system, helping them navigate judicial reviews, immigration appeals, and compensation claims.

Unlawful detention and false imprisonment

To establish false imprisonment, the plaintiff must prove that they were willfully detained within a bounded area, without their consent, and without the authority of lawful arrest. For example, in the case of Enright v. Groves, a woman sued a police officer for false imprisonment after being arrested for not producing her driver's license. She won the claim, as the court determined that the officer did not have the proper legal authority to arrest her for that specific reason.

When it comes to unlawful detention and false imprisonment by the Home Office, immigration authorities are often involved. The Home Office has been known to make mistakes when exercising its immigration powers, and unlawful detention is one of the limited circumstances in which compensation can be sought through a court case. For example, in the case of "N and R (a child) v Home Office", a woman and her daughter were unlawfully detained by immigration authorities and threatened with removal, despite the daughter being a British passport holder. They were awarded damages of £40,000, along with an apology.

If you have been unlawfully detained or falsely imprisoned by the Home Office, it is essential to seek legal assistance. Experienced solicitors can help you navigate the complex legal process and advise you on the best course of action. They will be able to assess your specific circumstances and determine the strength of your claim. It is important to gather and preserve any relevant evidence that can support your claim, such as documents, witness statements, or other pertinent information.

Additionally, it is worth noting that there are alternative routes to seek compensation or redress without resorting to legal action. The Home Office has a complaints procedure that allows individuals to claim reimbursement for financial losses directly resulting from their errors. Exceptional circumstances that do not involve financial loss may also be considered for consolatory payments. However, it is important to provide clear and compelling evidence to support your claim.

Negligence and ill-treatment

If you have been ill-treated or unlawfully detained by immigration authorities, you may be able to sue the Home Office for negligence and ill-treatment.

Experienced solicitors, such as those at Saunders Law, can assist you in obtaining justice by pursuing a complaint for disciplinary proceedings and/or bringing civil proceedings for damages against the Home Office. They have many years of experience in bringing successful claims against the Home Office, including for assault or other ill-treatment, negligence, and/or false imprisonment due to unlawful detention.

Some examples of successful cases against the Home Office include:

• R (Jalloh (formerly known as Jollah) v SSHD [2020] UKSC 4: Saunders Law acted for Mr Jollah in his landmark test case on the scope of the tort of false imprisonment and potential alignment with Article 5 of the European Convention on Human Rights (ECHR).
• Windrush claims: Saunders Law is advising in relation to the Home Office’s Windrush compensation scheme and related legal matters.
• N and R (a child) v Home Office: Saunders Law assisted a woman and her daughter who had been unlawfully detained by immigration authorities following a dawn raid at their home and had been threatened with removal, despite the daughter having a British passport. They secured damages of £40,000 plus an apology.
• D v Home Office: Saunders Law obtained damages of £250,000 plus an apology on behalf of a woman who was unlawfully detained for 29 days and suffered a loss of earnings.

In addition to working with a law firm, there are a few other steps you can take if you believe you have a case for suing the Home Office for negligence and ill-treatment:

• Pursue a complaint through the Home Office complaints process: You will need to clearly spell out the losses you have incurred and back them up with evidence.
• If the Home Office refuses to make a payment and you can show "maladministration", you can pursue a case through the Parliamentary Ombudsman. This process requires that the Home Office complaints process has been exhausted and that a referral is made via your local Member of Parliament. While this process is protracted, it can be done without a lawyer and with no risk of having to pay the legal costs of the other side.

Appealing Home Office decisions

If you want to appeal a Home Office decision, you must have the legal right to do so. You will usually be informed of this in your decision letter. If you are unsure, you can consult a solicitor or immigration adviser.

The First-tier Tribunal (Immigration and Asylum Chamber) is the first court you can appeal to if the Home Office has:

• Refused your protection claim (also known as an 'asylum claim' or 'humanitarian protection')
• Revoked your protection status
• Refused your human rights claim
• Refused you a residence document or deported you under the Immigration (European Economic Area) Regulations 2016
• Revoked your British citizenship
• Refused or revoked your status, varied the length or condition of your stay, or deported you under the EU Settlement Scheme
• Refused or revoked your travel permit or family permit under the EU Settlement Scheme or restricted your rights to enter or leave the UK under those permits
• Refused or revoked your permit, or deported you if you’re a frontier worker
• Refused or revoked your leave, or deported you if you’re an S2 healthcare visitor

If you do not have the right to appeal, you may be able to apply for an administrative review from the Home Office.

How to Appeal

If you are appealing without a solicitor or immigration adviser, you have 14 days to appeal from the date the decision was sent. You can appeal online, by post, or by fax. Online appeals are quicker. If you are posting your appeal, you should use a recorded delivery or another service that shows proof of postage and acknowledgement of receipt.

If you miss the 14-day deadline, you may be able to apply for an “out-of-time” appeal but you will need to have good reasons for doing so and explain these to the Tribunal.

To appeal, you need to state which "grounds" you are relying on. The grounds are the legal reasons or legal basis for your appeal and are limited to:

• That your removal or the revocation of your protection status would breach the UK’s obligations under the Refugee Convention, in relation to persons eligible for a grant of Humanitarian Protection, or under the Human Rights Act
• That the decision is unlawful under section 6 of the Human Rights Act
• If it’s a decision regarding EEA nationals, that the decision is not in accordance with EU law (this only applies to decisions made before Brexit, or applications under the EU Settled Status scheme made after 31 January 2020)

If you are appealing a decision where you have been detained in an immigration detention centre and your decision letter was sent by the Home Office, you should use form IAFT-DIA.

After Submitting Your Appeal

After you have submitted your appeal, you will be sent a “Notice of Hearing”. This will tell you the time and date of the hearing, and where it will take place.

If you need an interpreter, you must notify the Tribunal, informing them of which language and dialect you speak.

You can ask for a male or female judge if you think there are issues in your appeal that make this appropriate. The Tribunal will decide if this is possible.

If you have documents you want the judge to look at, you should send copies to the Home Office and the Tribunal as soon as you can. The Notice of Hearing will tell you the deadline for doing this. You need to bring the originals of the documents with you to the Tribunal. These documents must be in English or be officially translated.

If you are unable to attend the hearing, you must tell the Tribunal as soon as possible and ask for the hearing to be “adjourned” to a later date. If this is because of illness or a medical appointment, you need to send evidence of this when you apply for an adjournment.

Hearings are usually held in public. You can request that your hearing takes place in private if you fear for your safety or because of the sensitive nature of your case.

Other Options

There is a little-known scheme operated by the Home Office that enables compensation claims to be made. If you can show that you have suffered financial loss as a direct result of an error made by the Home Office, you may be able to claim reimbursement of the costs you have incurred. You will need to provide evidence such as original receipts.

In exceptional circumstances not involving financial loss, the Home Office will consider whether a consolatory payment is appropriate.

If the Home Office refuses to make a payment and you think you have a good case and can show what is called “maladministration”, you can pursue a case through the Parliamentary Ombudsman. Substantial compensation can be ordered this way, for direct financial losses and inconvenience or hurt feelings. There is a procedure that must be followed, which requires the Home Office complaints process to have been exhausted and for a referral to be made via your local Member of Parliament.

Judicial reviews of Home Office decisions

Judicial reviews are a type of legal challenge to the way a decision has been made in your asylum, immigration, or human rights application. This is usually a decision made by the Home Office, but it can also be a decision made by a court. Judicial reviews are not about whether the decision was "right", but whether the law has been correctly applied and the right procedures have been followed.

A judicial review can be used to challenge an unlawful, unreasonable, or procedurally improper decision made by public bodies. It is a legal measure that groups or individuals can take to challenge in court how ministers, government departments, and other public bodies make decisions.

• Pre-Action Stage: Submit a Pre-Action Protocol (PAP) letter to the Home Office, detailing the elements of your Judicial Review Application. This letter must follow a specific format and be submitted within three months of the original decision being given.
• Permission Stage: If you receive no response or an inadequate response to the PAP letter, apply to the Administrative Court or Upper Tribunal for permission to make a Judicial Review Application. If permission is granted, the matter proceeds to the Hearing Stage.
• Hearing Stage: The Administrative Court or Upper Tribunal will provide directions for the matter to proceed to a substantive hearing. All directions must be complied with before the hearing to avoid adverse costs orders. At the hearing, the court will consider the Judicial Review Application fully and, if successful, grant the applicant appropriate relief.

It is important to note that judicial reviews are limited in scope as they are restricted to the issue of the 'lawfulness' of the Home Office decision. New evidence generally cannot be introduced as part of the review process. The grounds for Judicial Review are narrow and must relate to at least one of the following:

• Illegality (e.g. an error in law)
• Unreasonableness or irrationality
• Unfairness or procedural impropriety
• Breach of the Human Rights Act 1998

Judicial reviews are typically a lengthy and complex process, and it is recommended to seek legal advice before proceeding.

Administrative reviews of Home Office decisions

If your visa application has been refused by the Home Office, you can apply for an Administrative Review to challenge the refusal on the basis that the decision is incorrect due to a case-working error.

You will be told in your decision letter if you can ask for the decision on your application to be reviewed. You can only apply for an administrative review if certain conditions are met. If you are in the UK, your application was refused or it was granted but you are unhappy with the conditions of your permission to stay. If you are outside the UK, you must have applied outside the UK and your application was refused.

There is a different process to ask for an administrative review if you applied as a Frontier Worker or as a Service Provider from Switzerland.

The Administrative Review is conducted by a separate team that is independent of the original decision-maker. The process is cost-effective, at £80 per application, although some applicants may be exempt from paying the fee.

If you are outside the UK and wish to apply for an Administrative Review of a UKVI decision, you will have 28 days to make the application. If you are applying from inside the UK, you have 14 days. If your application was granted but you are unhappy with the conditions of your permission to stay, you must apply within 14 days of getting your biometric residence permit.

To apply for an Administrative Review, you must mention the reasons for refusal that are in your decision letter and explain why you think a mistake was made. You must send your completed form by the method stated in the application refusal letter (by email, post, or in person).

There are four possible outcomes to an application for an Administrative Review:

• The Administrative Review succeeds and the eligible decision is withdrawn
• The Administrative Review does not succeed and the eligible decision remains in force, and all of the reasons given for the decision are maintained
• The Administrative Review does not succeed and the eligible decision remains in force, but one or more of the reasons given for the decision are withdrawn
• The Administrative Review does not succeed and the eligible decision remains in force but with different or additional reasons to those specified in the decision under review. In this case, you may be entitled to apply for an Administrative Review related to the new reasons.

If your Administrative Review is unsuccessful, you could pursue challenging the decision by judicial review proceeding. However, this could be costly in terms of time and money.

Frequently asked questions