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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Badmus & Ors, R (On the Application Of) v The Secretary of State for the Home Department  EWCA Civ 657 (20 May 2020)
Cite as:  WLR 4609,  1 All ER 1193,  EWCA Civ 657,  WLR(D) 299,  1 WLR 4609
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HICKINBOTTOM
LADY JUSTICE SIMLER DBE
| R (on the application of:
Shola BADMUS 
Okwudili CHINZE 
Granville MILLINGTON )
- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
David Blundell QC and Richard Turney (instructed by the Government Legal Department) for the Respondent
The Third Appellant did not appear and was not represented
Hearing dates : 29 April & 1 May 2020
Crown Copyright ©
Sir Terence Etherton MR, Lord Justice Hickinbottom, and Lady Justice Simler DBE :
Legal and Policy Background
"3 Purpose of detention centres
The purpose of detention centres shall be to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment, and to encourage and assist detained persons to make the most productive use of their time, whilst respecting in particular their dignity and the right to individual expression."
"17 Regime and paid activity
All detained persons shall be provided with an opportunity to participate in activities to meet, as far as possible, their recreational and intellectual needs and the relief of boredom.
Wherever reasonably possible the development of skills and of services to the centre and to the community should be encouraged.
Detained persons shall be entitled to undertake paid activities to the extent that the opportunity to do so is provided by the manager.
Detained persons undertaking activities under paragraph (3) shall be paid at rates approved by the Secretary of State, either generally or in relation to particular cases.
Every detained person able to take part in educational activities provided at a detention centre shall be encouraged to do so.
Programmes of educational classes shall be provided at every detention centre.
Arrangements shall be made for each detained person to have the opportunity of taking part in physical education or recreation, which shall consist of both sports and health-related activities.
A library shall be provided in every detention centre, which will meet a range of cultural, ethnic and linguistic needs and, subject to any direction of the Secretary of State in any particular case, every detained person shall be allowed access to it at reasonable times."
"A detained person should not be offered more than 15 hours paid work per week without special approval by the responsible Home Office official.
Paid work should only be offered to detainees who were actively co-operating with the Home Office in relation to resolution of their immigration case, and only to those on the "enhanced level" of the enhancements scheme operated by the removal centre operator, the latter being a scheme intended to incentivise co-operative and constructive behaviour by detained persons. Examples of failure to co-operate would include a refusal to complete application forms, a failure to attend an interview without good reason and disruptive behaviour but would not include mounting a legal challenge to an immigration decision.
Any payment for paid work would be in addition to the allowance paid to detainees (then and now, 71p per day or £5 per week).
There would be two tiers of pay rate, routine work to be paid at £1 per hour and specified projects to be paid at a rate of £1.25 per hour.
Pay rates would be reviewed annually by the Secretary of State."
"I recommend that the Home Office reconsider its approach to pay rates for detainees in light of my comments on the benefits of allowing contractors greater flexibility."
i) Whether the minimum pay rates needed to be revised.
ii) Whether there was still a requirement for a maximum pay rate and any potential impacts of this being removed.
iii) Tiers of pay for different types of work.
iv) Comparison with Prison Service paid work procedures and pay rates.
"Paid activities provide detainees with the opportunity to earn extra money before they depart from the UK, and some types of paid activities require training and certification (e.g. in food hygiene) which detainees can use in their home countries. Examples of paid activities are wide ranging and including wing orderly, sports hall assistant, safer community orderly, refectory cleaner, music room orderly, library orderly, kitchen orderly, gym assistant, interpreter, diversity orderly, classroom assistant, chapel assistant, barber and activities assistant. Where possible detainees are encouraged to undertake relevant work-related certification which detainees can use in their home countries. For example, detainees undertaking paid activities as a kitchen assistant in [an IRC] must have obtained a level 1 catering certificate for their first 8 weeks work and a level 2 catering certificate for continued employment beyond the initial 8 weeks."
"Ministers should be invited, subject to financial affordability, to decide between the following options:
Option 1: To bring the pay rates and weekly allowance for detainees in [IRCs] up to be in line with inflation, with an estimated annual cost to the Home Office of £290,000 per annum;
Option 2: To bring the weekly allowance up to be in line with inflation, with an estimated annual cost of £145,000 per annum, but leave pay rates unchanged;
Option 3: To bring the pay rates up to be in line with inflation, with an estimated annual cost of £145,000 per annum, but leave the weekly allowance unchanged; or
Option 4: To leave the rates unchanged."
"1. Decision of the Defendant to fix a flat rate of payment for work carried out by the Claimant whilst in immigration detention.
2. Decision of the Defendant to fix that rate at £1, or £1.25 per hour for special projects".
"1. Declaration that fixing a flat rate of £1/£1.25 for paid work in immigration detention is unlawful.
2. Declaration that fixing a flat rate, and fixing it at that level, breaches the Claimant's ECHR rights.
3. Declaration that there has been a breach of the Public Sector Equality Duty.
4. Such other declaratory relief as may be necessary to give effect to the Court's judgement.
5. Damages for breach of ECHR rights.
"1. This is a challenge, brought by four immigration detainees, to two decisions of the Defendant concerning rates of pay for those who work whilst in immigration detention. Those decisions are (a) to fix a flat rate of payment; and (b) to fix that rate at £1 (or £1.25 for special projects, though that rate is only very rarely used). Those decisions were originally taken in a Detention Services Order from March 2013 (though the rates themselves were set as long ago as 2008, so ten years ago) but they were reviewed and retaken on 3 May 2018, and applied to the Claimants on various dates between August 2017 and July 2018 and continuing."
The hearing before Murray J and his judgment
i) Setting and maintaining a flat rate of £1.00 per hour for paid activity, with a rarely applied exception of £1.25 per hour for special projects, is contrary to the statutory purpose of the paid activity regime set out in the 2001 Rules.
ii) The setting of a flat rate, with no meaningful exception, prevents the furtherance of the statutory objectives set out in the 2001 Rules and therefore is an unlawful fetter on the discretion of decision-makers required to apply the paid activity regime to individual detained persons.
iii) The 2018 Review Decision to maintain a flat rate at £1.00 per hour, with the rarely applied exception of £1.25 per hour for special projects, is irrational in the sense of Wednesbury unreasonable (Associated Provincial Picture Houses v Wednesbury Corporation  1 KB 223).
iv) The differential treatment of prisoners and immigration detainees in respect of pay for work undertaken in custody/detention contravenes the prohibition on discrimination in article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the ECHR");
v) The Secretary of State failed to comply with his duty under section 149 of the Equality Act 2010 to have due regard to relevant matters in reaching the 2018 Review Decision.
vi) The Pay Review frustrated the appellants' legitimate expectation that all matters raised by their solicitors in correspondence with the Secretary of State would be addressed "in full".
"I just want pay that recognises the job that I do within the detention centre and to feel that my work is valued."
"The application of DSO 01/2013 to each applicant did not involve a separate decision by the defendant to apply the fixed rates in relation to that applicant in any meaningful sense. An immigration detainee may participate in the regime or he may not. He is not required to. He does so voluntarily. If he does participate, the fixed rates apply, with the higher and rarely used rate applying to special projects. The challenge is therefore necessarily to the pay regime, not to any decision of the defendant in relation to an individual applicant."
Unlawful fetter on discretion
"103. … this ground in any event fails on the basis that there is a reasonable and objective justification for the difference in treatment in relation to pay for work undertaken. The purpose of the prison regime is to punish offenders and to address their offending, for example, with rehabilitative activities, training and counselling. The prison work regime is compulsory, and the prisoner pay regime is designed, against that background, to encourage and reward positive behaviour from prisoners. The purpose of the removal centre regime is to provide immigration detainees secure and humane accommodation pending their removal from the UK. The removal centre paid activity regime is voluntary, and the pay regime rewards detainees for work undertaken, but against the background that the principal purpose of the paid activity regime is to provide meaningful activity and to alleviate boredom. I note in passing that neither regime has as its purpose the provision of an income to the person undertaking the work, although that is a benefit of each regime for the relevant person.
"104. Prisoners are generally paid substantially less for work undertaken, which reflects the fact that they are being punished. Prisoners are paid on a variable basis determined by various criteria, which reflects the fact that they are being rehabilitated, including being incentivised through work. Each of the prison and removal centre work regimes has a different structure, purpose and relevant background. The difference in treatment between prisoners and immigration detainees is objectively and reasonably justified. Accordingly, this ground fails."
Equality Act 2010 (section 149)
Grounds of appeal
i) The Judge was wrong to treat the appellants' claims as being out of time. Alternatively, the Judge was wrong not to extend time.
ii) The Judge was wrong to dismiss as unarguable the appellants' claim that the setting and maintaining of a flat rate of £1.00 an hour, subject to the one very limited exception, was contrary to and/frustrated the legislative purpose reflected in the 2001 Rules.
iii) The Judge was wrong to dismiss the appellants' claim that the setting of the flat rate of £1.00 was in breach of article 14 ECHR, read with articles 4, 8 and/or A1P1, as being discriminatory against IRC detainees. The Judge erred in finding that the difference in treatment between IRC detainees and prisoners was justified.
"167. … We agree with the claimants that there is a distinction between cases where the challenge is to a decision taken pursuant to secondary legislation, where the ground to bring the claim first arises when the individual or entity with standing to do so is affected by it, and where the challenge is to secondary legislation in the abstract. Cases falling into the first category include R v Secretary of State for the Home Department, Ex p Leech  QB 198 (where the point was not taken on behalf of the Secretary of State, but would have been had it possessed merit), R v Secretary of State for the Home Department, Ex p Saleem  1 WLR 443 and R (T) v Chief Constable of Greater Manchester Police (Liberty intervening)  AC 49; an example of a case falling into the second category is R (Cukurova Finance International Ltd) v HM Treasury  EWHC 2567 (Admin) "
"71. … even if Order 53, r. 4(1) is to be interpreted more conservatively, so that "the date when grounds . . . first ar[i]se" is never earlier than the date when the impugned decision is taken, Eurotunnel , Gooding , and Adams exemplify a common principle, whose nature is not dependent upon an appeal to the rules relating to delay. It is that a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If, after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late. Mr Pleming did not seek to deny that there exists a discretion to refuse leave, or relief, in such a case whether or not it falls within the terms of Order 53, r. 4(1) or section 31(6). This is an inevitable function of the fact that the judicial review court, being primarily concerned with the maintenance of the rule of law by the imposition of objective legal standards upon the conduct of public bodies, has to adapt a flexible but principled approach to its own jurisdiction. Its decisions will constrain the actions of elected government, sometimes bringing potential uncertainty and added cost to good administration. And from time to time its judgments may impose heavy burdens on third parties. This is a price which often has to be paid for the rule of law to be vindicated. But because of these deep consequences which touch the public interest, the court in its discretion—whether so directed by rules of court or not—will impose a strict discipline in proceedings before it. It is marked by an insistence that applicants identify the real substance of their complaint and then act promptly, so as to ensure that the proper business of government and the reasonable interests of third parties are not overborne or unjustly prejudiced by litigation brought in circumstances where the point in question could have been exposed and adjudicated without unacceptable damage. The rule of law is not threatened, but strengthened, by such a discipline. It invokes public confidence and engages the law in the practical world. And it is administered, of course, case by case; where there is bad faith, or a real instance of Wednesbury perversity, a respondent's argument based on delay is likely to get a little shrift. But there is nothing of that here."
"… In theory a very strict view might be taken: that time begins to run from the date when secondary legislation is made or at least when it comes into force. However, that would be contrary to both principle and authority. It is unnecessary to go into that in detail since, at the hearing before this court, Mr Tam made it clear that the Secretary of State accepts that time for judicial review begins to run not from the date of the legislation (the 2005 Rules) but from the date when that legislation was applied in a particular case (in other words here the relevant appeal decisions in 2014). "
Frustration or undermining of the legislative purpose
Article 14 ECHR
"21. … The reasons for the imposition of standard pay rates (and the level at which they are set) are summarised in internal documents dated June 2008 and 3 July 2008 …. In short, the strategy was required because:
a. Paid work was available in some, but not all, IRCs;
b. Where paid work was available, there was inconsistency in pay levels, with some work being paid at 25p/hour;
c. Detainees who had been provided with paid work might not be able to have paid work if transferred to another centre, which might present a risk of non-compliance with transfers;
d. There was a failure to link compliance with the ability to work.
22. The decision to impose a standard rate of pay was a policy position taken for operational reasons. Variable or locally agreed rates of pay at different IRCs or within an individual IRC could favour or discriminate against detainees on an arbitrary basis depending on their place of detention. Distinguishing between detainees may also cause resentment, particularly if work at higher rates is not available, and might present a risk of non-compliance with transfers between IRCs (i.e. from an IRC with a higher rate of pay to one with a lower one) or demands to be transferred from an IRC with a lower rate of pay to one IRC with a higher rate. The strategy was intended to standardise pay rates and cap the amount of work that could be undertaken by an individual detainee, to maximise opportunities for the greatest number of detainees. The ability to work was to be linked to compliance.
23. The reasons for setting the standard pay rate at £1.00 per hour were also explained:
a. The position of prisoners, who are generally paid c. 20p per hour for work, could be distinguished;
b. An hourly rate of 75p was preferred but was rejected because work was already being paid at £1.00 per hour or higher, and setting the rate at this level would result in pay cuts for many detainees which would present operational risks;
c. It was noted that setting the pay rate at 75p or higher would increase the costs of operating the centres."
BEFORE the Master of the Rolls, Lord Justice Hickinbottom, and Lady Justice Simler DBE
UPON hearing Mr Southey QC for the Appellant, and Mr Blundell QC for the Respondent
AND UPON the handing down on 20 May 2020 of a judgment
IT IS ORDERED THAT:
1. The Second Appellant is to be anonymised and known only as 'GW'. Nobody is to publish, or cause to be published, the name of the Second Appellant or any other means of identifying him.
2. The appeals of the First, Second, and Fourth Appellants are dismissed.
3. The First, Second, and Fourth Appellants shall pay 70% of the Respondent's costs of the appeal, with such costs to be subject to detailed assessment if not agreed, and subject to section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
4. There shall be a detailed assessment of the First, Second, and Fourth Appellants' publicly funded costs.
5. The First, Second, and Fourth Appellants' application for permission to appeal to the Supreme Court is refused.
6. The stay of the Third Appellant's appeal is lifted.
7. The Third Appellant shall liaise with the Respondent and shall by 4pm on 4 June 2020 lodge a draft Consent Order compromising all issues between the parties. In the absence of agreement, the Third Appellant shall by that same time file and serve a written position statement, to which the Respondent shall file and serve a response in writing by 4pm on 16 June 2020, and the Court will give further directions in that appeal on the basis of those statements.
Dated 20 May 2020