Morita & Ors v The Secretary of State for the Home Department (Rev 1)

A challenge to the vires of a policy or secondary legislative regime generally runs from the date on which the regime was made or came into force, rather than from each later application of it, where no separate individual decision is involved. A fixed rate of pay for voluntary activities undertaken by immigration detainees was not contrary to the statutory purpose of providing secure but humane accommodation, nor did it unlawfully fetter the Secretary of State’s discretion. The rate was a policy judgment subject to a high rationality threshold. Differential treatment between prisoners and immigration detainees was objectively and reasonably justified by the different purposes and structures of the regimes. The equality duty and any legitimate expectation arising from a promised review were also satisfied.

The claimants were immigration detainees who undertook paid activities in removal centres at fixed rates of £1 per hour, or £1.25 per hour for special projects. They challenged the Secretary of State’s decision in May 2018 to retain those rates after a review. The grounds alleged unlawfulness under the Detention Centre Rules 2001, irrationality, discrimination under article 14 of the ECHR, breach of the public sector equality duty and frustration of a legitimate expectation.

The proceedings comprised the Morita Claim and the linked Badmus Claim. The Morita Claim was stayed. The central issues were whether the challenge was out of time and, if so, whether any ground was arguable.

1. Timing. The challenge was, in substance, to the vires of DSO 01/2013 and the fixed-rate regime, not to separate decisions applying that regime to individual detainees. Following the distinction discussed in R (DSD) v Parole Board [2018] 3 WLR 829 and the approach in R (Cukurova Financial International Ltd) v HM Treasury [2008] EWHC 2567 (Admin), time ran from the making or commencement of the regime. The Badmus Claim was therefore out of time. Even if the May 2018 decision was independently amenable to judicial review, that claim was filed out of time.
2. Statutory purpose and fetter. Section 153 of the Immigration and Asylum Act 1999 and Rules 3 and 17 of the Detention Centre Rules 2001 pursue the overarching purpose of secure but humane accommodation. Paid activity is voluntary and is one of a range of activities intended to meet recreational and intellectual needs and relieve boredom. The regime is not intended to provide detainees with an income. A fixed rate did not frustrate that purpose. The word “rates” in Rule 17(4) can encompass a single rate, and the policy did not fetter or abdicate the Secretary of State’s discretion.
3. Rationality. The rate was a matter of policy judgment. The applicants had to show that no rational Secretary of State could have reached the same decision. The Pay Review had considered the relevant evidence, including the Shaw recommendation, removal-centre operators’ views and the prison regime. The absence of separate reasons in the decision to retain the status quo did not make it irrational because the rationale was apparent from the review materials.
4. Discrimination. Assuming article 14 was engaged and prisoners were an appropriate comparator, the difference in treatment was reasonably and objectively justified. Prison detention is punitive and its compulsory work regime is linked to rehabilitation and incentivisation. Immigration detention is directed to secure and humane accommodation pending removal, and paid activity is voluntary.
5. Equality and legitimate expectation. The Secretary of State had prepared policy equality statements and was entitled to conclude that the fixed-rate policy produced no adverse racial impact. The correspondence did not create a specific legitimate expectation that every argument would be accepted; the promised review was carried out.
6. The court concluded that the Badmus Claim was out of time and that none of the grounds was arguable. Permission to apply for judicial review was dismissed. The Morita Claim remained stayed.

High Court (Administrative Court): the linked judicial review applications were heard at a rolled-up hearing. The Morita Claim was stayed, while the Badmus Claim was held out of time and permission was dismissed.