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Court rejects judicial review of £1/hr rate for paid activity for detained persons in removal centres

Morita & Ors v Secretary of State for the Home Department [2019] EWHC 758 (Admin)

Related Member(s):
Hugh Southey QC, Nick Armstrong
Related Practice Area(s):
Immigration, Asylum and Free Movement, Public Law
Court:

This matter concerned joined applications for permission to apply for judicial review of the respondent’s decision not to increase the rate paid for paid activities undertaken by detained persons in removal centres from £1 per hour, and not to modify the payment regime to provide more flexibility.

Evidence considered by the court included witness statements from detainees stating that the level of pay left them feeling exploited, and the reason they undertook the work was not merely to pass the time but because they needed the money.

Considering submissions based on R (DSD) v Parole Board [2018] 3 WLR 829, the court considered that the Morita Claim challenged the original DSO, and not the decision to maintain the decision. As it was stayed, the timing for that application was not in issue; however the court ruled that the Badmus Claim was brought out of time. Nonetheless, the court went on to consider whether the grounds the applicants advanced in support of their claim were arguable.

Among other grounds, the applicants argued that the flat rate of £1 per hour was contrary to the statutory purpose of the paid activity regime set out in the 2001 Rules, was irrational under the Wednesbury test for unreasonableness, and was discriminatory under ECHR, art 14 due to the differential treatment of prisoners and immigration detainees.

The court held that the flat rate was not contrary to the statutory purpose as it is not inhumane to set a fixed rate for paid activity that a detained person is not compelled to do, and paid activity is only one of a range of activities contemplated by the Rules to meet their “recreational and intellectual needs”. The court also determined that it is not part of the legislative purpose of the 2001 Rules to ensure that detained persons have the opportunity to earn money to meet their basic or other needs. The court rejected the ground of irrationality, stating that the rationale was clear from the Pay Review Report, and that the policy decision is within the broad discretion of the respondent, and as such the court should be slow to interfere. The court also determined that the difference in treatment between prisoners and immigration detainees is objectively and reasonably justified. This is because the purpose of the prison regime is to punish offenders and to address their offending, whereas the purpose of the removal centre regime is to provide immigration detainees secure and humane accommodation pending their removal from the UK, with the paid work being voluntary.

Therefore the court concluded that the grounds put forward were not arguable and as such it would not be appropriate to extend time for the Badmus Claim. It further concluded that it would in any case dismiss the application for permission to apply for judicial review.

Hugh Southey QC and Nick Armstrong were involved in this case.