The High Court has rejected a challenge to the £1 an hour pay rate for immigration detainees. Morita v Secretary of State for the Home Department [2019] EWHC 758 (Admin) is the culmination of a longstanding battle between Duncan Lewis and the Home Office about payment for immigration detainees who voluntarily undertake essential work, like cleaning or cooking, in detention centres.

In 2017, Duncan Lewis successfully pressured the Home Office into conducting a review of the £1 an hour pay rate. Unfortunately, in April 2018 the review concluded that the rate of pay should stay the same. A group of detainees represented by Duncan Lewis challenged that decision.

Incredibly, the primary reason for refusing permission was that the claim was filed out of time. Mr Justice Murray held that the judicial review was ultimately a challenge to the lawfulness of a Detention Services Order issued in 2013, which fixed the pay rate at £1 an hour, therefore it was five years out of time.

What Murray J failed to acknowledge is that none of these detainees had been detained in 2013 and were therefore not in a position to challenge the policy at that time. They could only challenge the policy once it was applied to them, at which point they promptly filed applications for judicial review. The situation is analogous to collateral challenges to secondary legislation, like the successful challenge to the lawfulness of the 2005 Detained Fast Track Rules.

Toufique Hossain, solicitor for the claimants, has indicated that they will appeal. The Court of Appeal is likely to take a dim view of Murray J’s decision to refuse permission because the claims were out of time. That said, the judge also dismissed the claim on its merits, having concluded that the £1 an hour rate was within the bounds of the Secretary of State’s discretion under the Detention Centre Rules. The claimants face an uphill struggle to convince the Court of Appeal that he was wrong on that point.