The Court of Appeal has today dismissed our challenge to the Secretary of State for the Home Department’s policy of paying immigration detainees a fixed pay rate of £1 an hour in order to work in detention.
This was an appeal to the decision of Mr Justice Murray in the High Court who had refused permission in our challenge on both the legal merits of the application and because he decided the claim was ‘out of time’. Lord Justice Singh had granted permission to appeal on three grounds: (1) on whether the claims were ‘out of time’; (2) whether the setting of a flat rate of pay was contrary to the legislation purpose of the Detention Centre Rules and (3) whether the flat rate of pay was discriminatory under Article 14 ECHR comparing it with prisoners pay.
The Court of Appeal today dismissed the substantive grounds of appeal to the policy (grounds 2 and 3) but found that the challenge had been brought ‘in time’ (or that time should be extended so that the appellants could bring the challenge).
On timing, a judicial review needs to be brought promptly and, in any event, no later than three months when the grounds of claim first arose. The SSHD maintained this was a challenge to the 2013 Detention Services Order (DSO) so was several years out of time despite the SSHD reviewing and maintaining her decision to pay detainees £1 an hour in 2018. The court disagreed and found that the claim was ‘in time’ (or that time should be extended). All of these appellants could not have brought a challenge in 2013 because they were not working in detention. This decision reinforces the important principle on timing that grounds for making a judicial review claim ‘first arise when a person is affected by the application of the challenged policy or practice’ .
On the substantive challenges to the policy of paying detainees a flat rate of £1 an hour, the Court of Appeal dismissed our claim. On Ground 2, we had submitted that the work being carried out by detainees was of real value (such as the cleaning work which can be very unpleasant) and that this value had not been assessed by the SSHD when determining the pay rate. This was reflected in the evidence with many centre operators recommending pay increases and flexibility. Unfortunately, the Court of Appeal found that the exemption from the national minimum wage showed that Parliament did not intend for the work to be compensated based on its true value. Furthermore, the SSHD was found to have a clear discretion in the Detention Centre Rules to set the pay rate(s) and did not have a legal obligation to enable greater flexibility.
On Ground 3, we had submitted that prison pay and detainee pay were sufficiently similar for a direct comparison, with both encouraging compliance with the regime. We had argued that this amounted to Article 14 discrimination against immigration detainees as their paid work regime was much more restrictive. The Court found that there was a key distinction between prisoners and detainees with regards to pay. Prison pay rates are set by individual Governors and allow for more variable rates of pay. The Court found that the key difference was that detainees are not required to work and receive a weekly allowance irrespective of whether they work. The Court also disagreed that the purpose of paid work was similar in the two regimes. Any difference in treatment was therefore found to be justified under Article 14.
The Appellants in this matter were represented by director Toufique Hossain and solicitor Philip Armitage of the Harrow public law team, Hugh Southey QC and Nick Armstrong of Matrix Chambers.
Philip Armitage, solicitor for the Appellants, commented on the judgment as follows:
“This is a very disappointing decision for our clients. The £1 an hour rate of pay for detainees has now been in place for twelve years with no increase. Our clients were undertaking key work within the IRCs, including cleaning to ensure the centre was hygienic, and all they are asking is that the value of that work is respected by the Home Office. We are considering an appeal to the Supreme Court.”