The Court of Appeal has rejected a challenge to the £1 an hour rate of pay for detainees who undertake work in immigration removal centres. In R (Badmus) v Secretary of State for the Home Department [2020] EWCA Civ 657 the court maintained the decision reached by the High Court last year, although it reversed Mr Justice Murray’s ruling that the claim was out of time. This aspect of the judgment will be important for future challenges to the secondary legislation on detention centres.

When does the clock start running?

In the High Court, Murray J, shockingly concluded that the judicial review claims were several years out of time because they were, in substance, challenging the Detention Services Order fixing the rate of pay, which was issued in 2013. The effect of his decision was that the order was effectively impossible to challenge because no-one had challenged it back in 2013. If correct, this approach would provide lawyers with only a narrow window to challenge new regulations governing the use of detention. It was obviously grossly unfair to the claimants.

Fortunately, the Court of Appeal overruled the judge on this point. It reviewed the authorities, which were ambiguous on this issue, and concluded:

We consider… that the appellants were affected by, and had standing to challenge, the £1.00 flat rate rule, from the time they were detained in an IRC. We conclude, therefore, that [appellant] GW was within the three-month time limit in bringing these judicial review proceedings. [Other appellants] Mr Millington and Mr Badmus were late, by one month in Mr Badmus’ case. As GW’s case can proceed in any event, time should be extended for them pursuant to CPR 3.1(2).

Unfortunately, the Court of Appeal’s ruling is itself problematic. By starting the clock from the point at which the detainees had standing, they have ignored the practical reality that people only challenge the decisions of public authorities once they are actually subject to them. Effectively, the court is requiring detainees to consider the entire body of secondary legislation which governs detention centres at the time they are detained and then challenge any of it which they consider to be unlawful, even if it is unlikely it will ever actually be applied to them.

It would have been better to accept the detainees’ submission that the clock should run from the time when they started working for £1 an hour. On the facts, the Court of Appeal granted an extension of time to those detainees who needed it, but ideally this would not be left at the discretion of the judge.

£1 an hour perfectly lawful

The court went on to reject the argument that the £1 an hour rate frustrates the legislative purpose of the Detention Centre Rules 2001 and is in breach of Article 14 of the European Convention on Human Rights.

The detainees’ arguments were heavily based on a comparison with prisons, where a more flexible system is in operation. The Court of Appeal rejected prisoners as an appropriate comparator:

So far as concerns prisons, Governors set the rates of pay for their particular establishment, but, importantly, prisoners are required to work under the Prison Rules 1999, subject to a maximum of 10 hours per day. [Immigration detainees are not required to work.] That fundamental distinction of compulsion provides the context for much lower rates of pay in prisons than in IRCs and for the different objectives of paid work in the two systems. In prisons, as stated in Prison Service Order 4460, it is to encourage and reward the constructive participation of prisoners in the regime of the establishment. In IRCs, it is to encourage and assist detained persons to make the most productive use of their time (in accordance with rule 3(1)) and the provision of opportunities to participate in activities to meet the recreational and intellectual needs of detainees and relief of boredom (in accordance with rule 17(1)).

The fundamental problem faced by the detainees who work in detention is that they are subject to an express exception from the statutory minimum wage. Parliament has decided that immigration detainees should be paid less than a fair wage for their work (even assuming that the national minimum wage is fair). £1 an hour is obviously an offensively low rate of pay; detainees need Parliament to wake up to that fact and legislate to include them in the national minimum wage.