Badmus & Ors, R (On the Application Of) v The Secretary of State for the Home Department

For a judicial-review challenge to a mandatory policy or practice, time begins when the claimant is first affected by it and thereby has standing. An individualised decision applying the policy is unnecessary.

Under the Detention Centre Rules 2001, the voluntary paid-activity regime does not require payment reflecting the value of detainees’ work or a range of payment rates. A general rate is permitted.

A voluntary paid-work scheme lies outside article 4 and article 1 of Protocol 1. Immigration detainees and prisoners are not relevant comparators for the asserted article 14 difference in pay flexibility; in any event, the difference is objectively justified.

Four former immigration detainees challenged the Secretary of State’s maintenance of a flat payment rate of £1 per hour, or £1.25 for special projects, for paid activities in Immigration Removal Centres.

Murray J refused permission to apply for judicial review: [2019] EWHC 758 (Admin). He held that the challenge was late and that the proposed grounds concerning the purpose of the Rules and article 14 of the Convention were unarguable.

The Court of Appeal considered whether the claims were timely, whether the flat rate frustrated the statutory scheme, and whether the difference from the prison pay regime was unlawfully discriminatory. The third appellant’s appeal was stayed pending resolution of the other appeals.

1. The appeals of the first, second and fourth appellants were dismissed. The judge was wrong to hold that every claim was out of time, but he was right to refuse permission because the substantive grounds were unarguable.

2. For CPR 54.5(1), a challenge to a mandatory policy falls within the person-specific category when the claimant is first affected by the policy and acquires standing. The rule need not be applied through an individualised decision. The appellants became affected when detained in an Immigration Removal Centre to which the rate applied. GW was in time; time was extended for Mr Badmus and Mr Millington.

3. The flat rate did not frustrate the purpose of the Detention Centre Rules 2001. Paid activity is voluntary, is additional to the weekly allowance, and forms part of the activities provided to relieve boredom and promote productive use of time. Parliament’s exclusion of detainees from the national minimum wage showed that the scheme was not intended to compensate them for the true value of their work. There was no evidence that either the Secretary of State or operators gained unfairly from detainee work.

4. Rule 17(4) permits rates approved generally or for particular cases. It does not require multiple rates. Rule 17(2), read with the qualified entitlement to paid activity in rule 17(3), did not impose a legal obligation to introduce flexibility merely because it might promote innovation.

5. The article 14 claim also failed. The voluntary scheme was outside the ambit of article 4 and article 1 of Protocol 1. Even assuming article 8 was engaged, prisoners were not relevant comparators. Their compulsory work regime serves different purposes. The standard rate in Immigration Removal Centres was, in any event, objectively and reasonably justified by the operational reasons for standardisation.

1. Court of Appeal (Civil Division): dismissed the appeals of the first, second and fourth appellants, while holding that the claims had not all been brought out of time: [2020] EWCA Civ 657.

2. Administrative Court: Murray J refused permission to apply for judicial review of the flat-rate paid-activity regime: [2019] EWHC 758 (Admin).