Morita v Secretary of State for the Home Department (Murray J)

The claimants challenged the Secretary of State's decision (the 2018 Decision), following a Pay Review, to retain a flat rate pay regime for paid activities in immigration removal centres (DSO 01/2013), paying detained persons £1 per hour (or £1.25 for special projects). Key legal issues were (i) whether the challenge was in time, (ii) whether the fixed-rate regime was contrary to the statutory purpose of the Detention Centre Rules (in particular Rule 17) and section 153 of the Immigration and Asylum Act 1999, (iii) whether the policy unlawfully fettered discretion, (iv) whether the 2018 Decision was Wednesbury irrational, (v) whether there was unlawful discrimination under article 14 ECHR and a failure to comply with the public sector equality duty in section 149 of the Equality Act 2010, and (vi) whether a legitimate expectation had been frustrated.

The court held that the substantive challenge was, in substance, to the DSO and related pay regime and therefore the Badmus Claim was out of time. Even allowing for extension, the court found none of the grounds arguable: the statutory scheme permits the Secretary of State to set a fixed rate; there was no unlawful fetter; the Pay Review and the Secretary of State's reasons were adequate for judicial review purposes and the decision lay within a wide policy discretion; differences with prison pay were objectively justifiable for article 14 purposes; the equality duty had been addressed by policy equality statements and the Pay Review; and no legitimate expectation arose from correspondence. Permission to apply for judicial review was refused in respect of the Badmus Claim.

Background and parties. The applicants were detained persons who had undertaken paid activities in immigration removal centres and received payment under the existing regime (£1/hour or £1.25 for special projects). They brought judicial review proceedings challenging the Secretary of State's decision not to increase pay or introduce a more flexible pay regime following a Pay Review concluded on 30 April 2018 and communicated by letter dated 3 May 2018. The Morita claim and the Badmus claim were linked; the Morita claim was stayed and the Badmus claim proceeded before Mr Justice Murray.

Nature of the claim and relief sought. The applicants sought to quash the decision to retain the fixed pay rates and to obtain declarations and relief that the fixed-rate regime (reflected in DSO 01/2013 and the 2018 Decision) was unlawful on public law and human rights grounds.

Procedural posture. The Badmus Claim was brought to the Administrative Court in a rolled-up hearing (permission and substantive hearing together). There was extensive procedural history including pre-action correspondence, a 2017 pre-action letter from Duncan Lewis, and the Home Office Pay Review prompted by that correspondence and by the Shaw report.

Issues framed by the court.

• Whether the challenge was brought in time or whether the claim was effectively a delayed attack on DSO 01/2013 and therefore out of time;
• Whether the fixed-rate pay regime was contrary to the statutory purpose of the Detention Centre Rules and section 153 of the Immigration and Asylum Act 1999 or unlawfully fettered discretion;
• Whether the 2018 Decision was irrational (Wednesbury) or otherwise unlawful;
• Whether the differential treatment between prisoners and immigration detainees engaged article 14 ECHR and was unjustified;
• Whether the Secretary of State breached the public sector equality duty under section 149 of the Equality Act 2010; and
• Whether a legitimate expectation arose from correspondence and was frustrated by the Pay Review.

Court’s reasoning and conclusions. The court determined that the substantive complaint was effectively a challenge to the DSO and the pay regime rather than to a discrete individual decision, and therefore the Badmus Claim was out of time. The court nevertheless considered the merits because merit bears on whether time should be extended. On the merits, the court rejected each ground as not arguable. The statutory scheme authorises the Secretary of State to set rates for paid activity (Rule 17 and section 153) and the purpose of the regime is to provide secure but humane accommodation and meaningful activity rather than to provide an income. The court held that detainees were not compelled to work in the legal sense relied upon by the applicants. The Pay Review addressed relevant considerations (including Shaw’s recommendation and evidence from operators and comparison with prisons) and Ministers rationally chose to maintain the status quo; they were not obliged to give detailed reasons beyond the Pay Review. Prison pay regimes differ in purpose and context, and the difference in treatment was objectively justified for article 14 purposes. The public sector equality duty had been considered. No legitimate expectation arose from the correspondence beyond the undertaking to review and the Home Office carried out a review. Accordingly permission was refused for the Badmus Claim and no extension of time was granted.

Context and implications. The judgment emphasises the high threshold for upsetting resource and policy choices by Ministers in the field of immigration detention and the importance of timing in challenges to secondary instruments and procedural policy statements. The court treated the choice of a flat pay rate as a policy judgment within ministerial discretion and found no legal error permitting intervention.

The application for permission to apply for judicial review in the Badmus Claim is dismissed as out of time; alternatively, on the merits each ground is not arguable and permission is refused. The court held that the challenge was in substance to the fixed-rate pay regime reflected in DSO 01/2013 and that the Pay Review and Ministerial decision to retain the rates fell within a lawful policy discretion and were not irrational, discriminatory or in breach of the public sector equality duty.