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Written by: Arshad Mahmood

Last Updated: 25 April 2024

Under certain circumstances, an overstayer in the UK is allowed to apply for leave to remain in the UK and succeed in the application despite being an overstayer.

An overstayer is a person who has stayed in the UK beyond the expiry date of his leave to remain in the UK. According to paragraph 6 of the Immigration Rules, “Overstayed” or “Overstaying” means the applicant has stayed in the UK beyond the latest of:

    (i) the time limit attached to the last period of leave granted, or
    (ii) beyond the period his leave was extended under sections 3C or 3D of the Immigration Act 1971.

Any applicant who is applying for leave to remain must not have remained in the UK after the expiry of their original grant of leave, on the date of their application. Remaining in the UK after the leave has expired is commonly known as overstaying.

Free Immigration Advice For Applications By Overstayers

Our specialist team of immigration solicitors can provide one-off free immigration advice online in relation to your application for leave to remain as an overstayer. Ask a question online to our specialist team of immigration solicitors for free immigration advice online, or book an appointment online for detailed immigration advice and consultation with one of our immigration solicitors concerning your application for leave to remain as an overstayer.

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Specialist Solicitors For Applications By Overstayers

Our team of specialist immigration solicitors can deal with a wide range of UK visa and immigration applications by overstayers. We can provide expert immigration advice and legal representations in relation to your UK visa and immigration application if you have become an overstayer in the UK and your personal and family circumstances favour making an application in the UK as an overstayer.

Applying For Leave To Remain Within 14 Days Of Overstaying In The UK

You can apply for leave to remain within 14 days of overstaying in the UK if you meet the requirements as set out in paragraph 39E of the Immigration Rules. Paragraph 39E of the Immigration Rules provides that:

"39E. This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time; and
(b) within 14 days of:

(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing."

Applying For Leave To Remain Where The Applicant Has Overstayed For More Than 14 Days

The Home Office UKVI can refuse your application for leave to remain if you have overstayed for more than 14 days and do not meet the requirements of paragraph 39E of the Immigration Rules as required by the relevant Immigration Rules governing the grant of leave to remain. However, the UKVI can exercise discretion in disregarding overstays where the applicant was prevented from making an in-time application due to circumstances beyond the applicant's control.

The UKVI would normally decide each case on its merits, but examples of reasons that might be considered beyond the control of applicants are:

• the applicant was admitted to the hospital for emergency treatment (evidenced by an official letter verifying the dates of admission and discharge and the nature of the treatment)
  • a close family bereavement
• an educational institution was not sufficiently prompt in issuing a Confirmation of Acceptance for Studies

If you have overstayed more than 14 days and this was due to circumstances which prevented you from making an in-time application, we can provide the required legal help and assistance with your application for leave to remain and argue that discretion should be exercised by the Home Office UKVI in your favour in disregarding the overstay.

Immigration Applications Which Are Not Affected By Overstay Of Any Number Of Days

There are certain immigration applications for leave to remain which can be made to the Home Office UKVI regardless of the number of days the applicant has overstayed in the UK. The overstay in such cases does not affect the application at all.

Various applications which can be made to the Home Office UKVI by overstayers (regardless of how long they have overstayed) are as follows:

Switching Into Spouse Visa (10 Years Route) where the applicant is on an immigration bail	Switching Into a Civil Partner Visa (10 Years Route) where the applicant is on an immigration bail
Switching Into an Unmarried Partner Visa (10 Years Route) where the applicant is on an immigration bail	Switching Into Same-sex Sex Partner Visa (10 Years Route) where the applicant is on an immigration bail
ILR as Bereaved Partner Of A British Citizen or Settled Person	ILR as Victim Of Domestic Violence
Switching Into Parent Visa (10 Years Route) where the applicant is on an immigration bail	Initial Application On The Basis Of 20 Years Long Residence
Initial Application Under 7 Years Child Residence Route	Initial Application As A Person Who Is Over 18, Under 25 And Has Lived Half His Life Continuously In The UK
Initial Application For Leave To Remain On The Basis OF Significant Obstacles To Integration In Applicant's Country Of Origin	Initial Application For Discretionary Leave (10 Years Route)
Residence Card As Family Member Of An EEA National	Derivative Residence Card
Extended Family Members Residence Card	Application For Asylum In The UK
Further Submissions For Fresh Claim	ILR As A Refugee [SET(P) Application]
ILR - Humanitarian Protection - SET (P) Application	Initial Leave To Remain As a Stateless Person
Switching Into Leave TO Remain As A Family Member Of A Stateless Person	ILR As A Bereaved Partner Of Member Of HM Forces
ILR As A Partner Of Member Of HM Forces Who Is Victim Of Domestic Violence	ILR As A Bereaved Child Of Member Of HM Forces

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Written by: Arshad Mahmood

Last Updated: 25 April 2024

If you have been unlawfully detained in the UK at any time during the last 6 years, you may be able to claim compensation against the Home Office, UKVI, for your unlawful immigration detention. Your detention by the Home Office UKVI will be regarded as unlawful if your detention cannot be legally justified as being outside the boundaries of UK laws, and therefore, you may be entitled to claim compensation for such unlawful immigration detention. Our immigration solicitors can act for you on No Win, No Fee Basis in your compensation claim for unlawful immigration detention.

Pursuing a claim for Unlawful Detention against the Home Office UKVI will not prejudice any current or future immigration applications you make to the Home Office UKVI.

Ask a question to our specialist team of immigration solicitors for free immigration advice online or book an appointment online for detailed immigration advice and a consultation session with one of our immigration lawyers concerning your compensation claim for unlawful immigration detention.

What Is The Unlawful Immigration Detention?

Unlawful immigration detention is an act of the Home Office UKVI to detain a person where the detention cannot be legally justified and is outside the boundaries of law. The law attaches supreme importance to the liberty of individuals, and a person who believes that they have experienced unlawful immigration detention may be entitled to compensation.

Your immigration detention may be found to be unlawful by a court in the following circumstances:

• If you have valid leave to remain in the UK at the time of your immigration detention and the Home Office UKVI has erroneously treated you as an overstayer and a person with no leave to remain;
• If you have Section 3C leave by virtue of a pending application or appeal and the Home Office UKVI wrongfully considered you as a person with no leave to remain at the time of your immigration detention;
• If you are exempt from immigration control being an EU national or a family member of an EU national and the Home Office UKVI treated you under domestic law and  not exempt from immigration control at the time of your detention;
• If Home Office UKVI detained you as a result of an unlawful immigration decision by the Home Office UKVI on your immigration application for leave to remain which was later set aside by the immigration court or the Home Office UKVI conceded the decision to be unlawful during the litigation;
• If you were detained by the Home Office UKVI when your removal from the UK was not imminent and you were not evading immigration control;
• If you are an unaccompanied minor at the time of your immigration detention. An unaccompanied minor must either be under 18 or yet to have their age verified by an age assessment;
• If you have a severe disability at the time of your immigration detention;
• If you have an infectious or contagious disease at the time of your immigration detention;
• If you are a woman who is 24 or more weeks pregnant at the time of your immigration detention;
• If you suffer from a mental illness at the time of your immigration detention;
• If you require constant medical care and you have been detained by the Home Office UKVI;
• If you are a victim of torture or trafficking and you have evidence to prove the same.

The list above is not comprehensive and exhaustive. There may be other circumstances in which the court may hold an immigrant's detention unlawful and award damages for unlawful detention.

Free Initial Assessment

Our immigration solicitors can carry out a free initial assessment of your eligibility for a compensation claim against the UKVI. We will assess the circumstances of your detention and the merits of your compensation claim. Should we consider that your claim has a good prospect of success, i.e., 51% or more, we will legally accept instructions to represent you in your compensation claim. We will enter into a no win, no fee agreement with you in relation to our legal services for your compensation claim.

We will request your Home Office UKVI records and Detention Records prior to serving the Letter Before Claim upon the Home Office, UKVI. The Detention Records will confirm details such as the dates(s) and location(s) you were detained.  We usually receive the records from the Home Office within 40 days of submitting the request.

No Win No Fee For Unlawful Immigration Detention Claim

Our expert team of compensation solicitors can legally represent you in your unlawful immigration detention claim against the Home Office UKVI on no win, no fee basis. We will charge a success fee of up to 25%, and will confirm the success fee once we have reviewed the merits of your compensation claim. The success fee will be agreed upon at the time of entering into the no win no fee agreement. In the event the claim is successful, we will deduct the agreed success fee from the overall compensation you receive from the Home Office UKVI.

We provide our legal services for unlawful immigration detention claim on a no win no fee basis. In the event your compensation claim against the Home Office UKVI is unsuccessful, we will not charge you for our legal fees, providing you co-operate with us in accordance with our terms and conditions, and that the information you provide is truthful to the best of your knowledge.

If your claim for compensation also includes a claim for special damages or personal injury, you may have to pay for disbursements such as Court fees, fees for document translation, expert report fees, counsel's fees, medical reports, etc. However, we will obtain your instructions before incurring any costs, and in the event the claim is successful, costs for disbursements will be received from the Home Office, UKVI.

Prior to issuing Court Proceedings, we will discuss obtaining an After-The-Event (ATE) Insurance Policy to protect you from having to pay the Home Office’s legal costs in the event the claim is unsuccessful. The ATE Policy’s premium will be deducted from your damages if your claim settles, and this is separate from our success fee. We will confirm the amount of the ATE premium and obtain your instructions before we proceed with the ATE policy.

Time Limit For Compensation Claim

• The limitation period for a claim for Unlawful Detention is only 6 years from the date of detention; therefore, you would need to consider issuing Court proceedings before the end of the six-year period.
• Any claims based on a breach of human rights (e.g. torture) are limited to 1 year from the date of the act/detention.
• If you also suffered from any physical/psychological injury due to your detention, claims for personal injury have a limitation period of 3 years from the date of injury.

Our compensation lawyers will consider all aspects of your immigration detention, including any injuries you have incurred, when determining the value of your claim, any potential settlement with the Home Office or UKVI, and any deadlines to issue Court Proceedings.

Legal Principles On Unlawful Immigration Detention?

In a claim for unlawful immigration detention, the Claimant must prove that he was detained by the Home Office, UKVI, within the last six years. Once the claimant establishes detention, it is for the Home Office, UKVI (Defendant), to show that it was lawful in all the circumstances in which the claimant was detained.

The common law limits the Secretary of State’s exercise of powers of detention. Those limits were set out by Woolf J (as he then was) in R v Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (“the four Hardial Singh principles”):

“First of all, it [the 1971 Act] can only authorise detention if the individual is being detained in one case pending the making of a deportation order, in the other, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of the deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to be that it would be wrong for the Secretary of State to seek to exercise its powers of detention.”

The Hardial Singh principles were unanimously endorsed in the landmark judgment of R (Walumba Lumba and Kadian Mighty) v Secretary of State for the Home Department [2011] UKSC 12, which reiterated at paragraph [22] the correctness of R (on the application of I) v Secretary of State [2002] EWCA Civ 888, in which Dyson LJ said at  paragraph [46]:

“(i) The SSHD must intend to deport the person and can only use the power to detain for that purpose;
(ii) The deportee may only be detained for the period that is reasonable in all the circumstances;
(iii) If, before the expiry of a reasonable period, it becomes apparent that the SSHD will not be able to effect deportation within that reasonable period, [s]he should not seek to exercise the power of detention;
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.”

Dyson LJ continued at paragraph [48] of I:

“It is not possible or desirable to produce an exhaustive list of all circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary
of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least:

• the length of the period of detention;
• the nature of the obstacles which stand in the path of the Secretary of State preventing deportation;
• the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles;
• the conditions in which the detained person is being kept;
• the effect of detention on him and his family;
• the risk that if he is released from detention he will abscond; and
• the danger that, if released, he will commit criminal offences.”

The four Hardial Singh principles were neatly summarised by Michael Fordham QC (sitting as Deputy High Court Judge) in R(Muhammad) v SSHD [2017] EWHC 745 (Admin) as:

1. the purpose principle;
2. the duration principle;
3. the removability principle; and
4. the diligence principle.

How Much Compensation Can I Claim?

There is now guidance in the cases regarding appropriate awards for false imprisonment. There are three general principles which should be born in mind:

1. The assessment of damages should be sensitive to the facts of the particular case and the degree of harm suffered by the particular claimant;
2. Damages should not be assessed mechanistically by fixing a rigid figure to be awarded for each day of incarceration. A global approach should be taken;
3. While the gravity of false imprisonment is obviously worsened by its length, the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons:
   1. to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and
   2. because the initial shock of being detained will generally attract a higher rate of compensation than the detention's continuance.

In Thompson, the court gave specific guidance (515 D-F) to the effect that in a "straightforward case of wrongful arrest and imprisonment" the starting point was likely to be about £500 for the first hour of loss of liberty and a claimant wrongly detained for 24 hours should for that alone normally be entitled to an award of about £3,000. That case was, of course, decided more than ten years ago, and while not forgetting the imperative that damages should not be assessed mechanistically, some uplift to these starting points would plainly be appropriate to take account of inflation.

When comparing the quantum with cases decided prior to the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1st April 2013, the Declaration of the Court of Appeal in starting figures would currently be approximately £1,000 for the first hour and £6,000 for wrongful detention of 24 hours in July 2019 values.

After considering the strengths and weaknesses of your claim, we will obtain the highest amount of compensation possible. Where appropriate, we will put forward Counter-Offers to the Home Office, to ensure you receive a reasonable amount of compensation. Where necessary, we will also receive the Counsel's opinion on the quantum (amount of compensation) so that the correct amount of compensation can be claimed from the UKVI.

We usually receive the compensation within three weeks of settling the claim. We will ensure to actively correspond with the Home Office to ensure you receive the compensation in a timely manner.

Factors Likely To Increase Compensation Amount

Distilling the guidance in the leading cases, it can be seen that the following are likely to increase the amount of damages for unlawful immigration detention:

• The initial shock of detention;
• Particularly vulnerable Claimant - e.g. torture victim, a person with mental health issues, a child, a victim of trafficking. This will be a factor in the basic damages award even if the aggravated damages threshold is not met;
• Poor behaviour of the state in relation to initial detention or conduct thereafter;
• Effect on Claimant (e.g. mental health deterioration) or others (e.g.
  children);
• Claimant being of good character and suffering reputational damage;
• High-handed treatment, e.g. using handcuffs unnecessarily, denying phone calls;
• Unlawful detention combined with unlawful removal.

Due to changes in litigation funding flowing from the Jackson reforms (meaning that a success fee could no longer be received in cost), this brought in a 10% increase in general damages awarded for

• pain, suffering and loss of amenity in respect of personal injury;
• nuisance;
• defamation; and
• all other torts which cause suffering, inconvenience or distress to individuals.

Factors Likely To Decrease Compensation Amount

The following factors are likely to decrease the amount of damages for unlawful immigration detention:

• Litigation risk, if settling. If damages are agreed without trial, the amount will usually be less than a Claimant could have obtained if successful in court;
• Unlawful detention following a period of lawful detention, as the “initial shock” factor is absent. The longer the period of lawful detention in comparison to unlawful detention, the more adverse its effect it likely to be on damages;
• The tapering effect: the highest damages are likely to be for the detention shock and the first 24 hours. However, there is also evidence, highlighted in the Shaw Report, that the tapering effect is limited in cases of unlawful detention, and that, unlike the case for prisoners serving determinate sentences, the effects of detention on immigration detainees actually get worse as time passes due to the lack of certainty of any end date;
• The claimant’s own conduct is responsible for the duration or conditions of detention but see, e.g. hunger strikes.

Processing Time Of Compensation Claim

After serving the Letter Before Claim to the Home Office, UKVI, our compensation lawyers usually receive a response within 3 months, confirming if the Home Office, UKVI wish to settle your claim for compensation for unlawful immigration detention. Once we enter into negotiations with the Home Office, UKVI to settle your compensation claim, it may take a further 3-4 months for the claim to settle. However, it is difficult to be precise about the time scale for this type of work due to the number of variables involved.

If the Home Office UKVI refuse to settle your compensation claim at the Pre Action Protocol (PAP) stage, we will review the prospects of success and consider issuing Court Proceedings depending upon the merits of your claim. We will always obtain your instructions before commencing any Court Proceedings. Where necessary, we will also consider taking the opinion of the Counsel on the merits of your case.

If court proceedings are issued because there is no agreement on compensation for unlawful detention, the claim can be determined by the court more slowly.

Details

Written by: Arshad Mahmood

Last Updated: 02 March 2025

Premium Solicitors Ltd has offices in London and Birmingham, UK. The offices are conveniently located, giving clients from all over the United Kingdom easy and quick access.

You can find the contact details for each office using the links below:

• Contact Us - London Office
• Contact Us - Birmingham Office

You can book an appointment online with our immigration solicitors and Commissioners for Oaths.