Badmus v Secretary of State for the Home Department

The Court of Appeal dismissed the appellants' challenge to the Secretary of State's policy fixing a flat hourly rate for paid activities undertaken by immigration detainees in Immigration Removal Centres (the £1.00 / £1.25 regime), confirming that the relevant policy and the 2018 decision to maintain it were not unlawful. The court treated timeliness under CPR 54.5(1) as turning on when a claimant was first affected by the measure and therefore had standing, accepting that time ran from detention in an IRC where the rule applied; one appellant was in time, two were out of time but the court extended time for them. The court held that the statutory framework (section 153 of the Immigration and Asylum Act 1999 and the Detention Centre Rules 2001) did not require payment based on the market value of work or multiple rates, that the paid-activity regime is voluntary and excluded from the national minimum wage, and that the difference in treatment between prisoners and immigration detainees could be objectively justified for the purposes of article 14 ECHR. The court therefore refused permission for judicial review.

The appellants were four immigration detainees who had undertaken paid activities while detained in Immigration Removal Centres and were remunerated under a fixed national rate of £1.00 per hour (with a rarely used £1.25 rate for special projects). They sought judicial review of the Secretary of State's decisions to fix a flat rate for paid activity and to maintain that rate on review in May 2018. Their pleaded remedies included declarations of unlawfulness, breaches of Convention rights (article 14 read with articles 4, 8 and/or A1P1), breach of the Public Sector Equality Duty (section 149 Equality Act 2010), damages for breach of ECHR rights, and costs.

The issues before the court included:

• timeliness: when the three-month CPR 54.5(1) limitation begins to run in respect of a general policy applied to many persons;
• whether the flat-rate policy frustrated or was contrary to the statutory purpose of the Detention Centre Rules 2001 (in particular Rule 3 and Rule 17);
• whether the policy unlawfully fettered discretion or was Wednesbury irrational;
• whether differential treatment of detainees and prisoners on pay engaged article 14 ECHR and, if so, whether it was objectively justified;
• whether the Secretary of State failed to comply with the Public Sector Equality Duty; and
• whether correspondence gave rise to a legitimate expectation.

The Court of Appeal held that the proper approach to timeliness is that articulated in the Divisional Court in R (DSD) v Parole Board: when a claimant is first affected by a mandatory policy, that is when the CPR 54.5(1) period begins. The court concluded that the 2018 Review Decision was amenable to judicial review and that time ran from the date each appellant was detained in an IRC applying the flat rate; one appellant was within time and the court extended time for the others.

On the merits the court agreed with the first-instance judge that the paid-activity regime is voluntary, that Parliament had excluded IRC detainees from the national minimum wage (National Minimum Wage Act 1998 s.45B as inserted by the Immigration, Asylum and Nationality Act 2006), and that the Detention Centre Rules did not impose a legal obligation to set pay by reference to market value or to require multiple rates. The Secretary of State's operational reasons for a standardised rate (including avoiding arbitrary local variations, managing transfers between centres, and promoting equitable access to work) provided a rational basis and objective justification for the policy. The court rejected the article 14 challenge (with the comparator of prisoners) on the basis that the different purposes and contexts of prisons and removal centres permitted a reasonable and objective justification. The Equality Act and legitimate-expectation grounds were also found to be unarguable on the evidence. The appeal was dismissed and permission to apply for judicial review was refused.

Appeal dismissed. The Court of Appeal held that time for judicial review of the policy began when an individual was first affected by the flat-rate regime in an IRC; one appellant was within time and the court extended time for the others. On the merits the court concluded the paid-activity regime is voluntary, the Detention Centre Rules did not require pay to reflect market value or multiple rates, and the Secretary of State had an objectively justifiable operational basis for a standard rate; accordingly the substantive grounds (statutory purpose, fetter, irrationality, article 14 discrimination, Public Sector Equality Duty and legitimate expectation) were unarguable and permission was refused.

Appeal from the Administrative Court (Queen's Bench Division), Murray J [2019] EWHC 758 (Admin), where permission to apply for judicial review was refused. Appeal heard in the Court of Appeal and dismissed [2020] EWCA Civ 657.