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The Court of Appeal (The Master of the Rolls, Hickinbottom and Simler LJJ) has dismissed the appeals in R (Badmus) v Secretary of State for the Home Department [2020] EWCA Civ 657. The case concerns rates of pay for work done by detainees in immigration detention. Those rates are set at £1 for most work and £1.25 for special projects under DSO 1/2013. A claim for judicial review had been refused permission by Murray J following a rolled up hearing. 

There were three issues in the appeal:

  • Whether the Judge was correct to find that the claims were out of time.
  • Whether the rates of pay were contrary to or frustrated the legislative purpose of the Detention Centre Rules 2001;
  • Whether setting flat rates of pay was a breach of Article 14 ECHR, by comparison with the pay regime for prisoners.

In respect of the timing issue, the Court found that the challenge was in fact to both the DSO (made in 2013) and to the decision not to amend the rates of pay in 2018 following an internal review. It went on to find that, for the purposes of CPR 54.5(1), the “grounds to make the claim” “first arose” when the individual claimants were detained at an Immigration Removal Centre: “It was only then that they had the standing and the grounds to bring their claim; and that is when time started to run”. The Court followed a characterisation made by the Divisional Court in DSD, noting a difference between a “person specific” and an “abstract” category of judicial review claim. Because the individual claimant’s only had standing to challenge the DSO (and the review of it) once they were detained, time did not run from the making of the DSO but from the date of detention. The cases were “person specific” claims. By contrast, in an “abstract” category of claim, time runs from the adoption of the impugned measure. The “obvious… examples of cases examples of cases which do not fall within the person specific category, are challenges in principle by activist and non-governmental organisations to legislation or policy which affects them in that the challenge falls within their objects” [83].

Having found that the claims were in time (or, where they were not, that time should be extended), the Court nonetheless found that Murray J had been correct to refuse permission to apply for judicial review. As to the ground of “frustration” of the legislative purpose, the fixed rates of pay were not exploitative nor did they undermine the claimants’ dignity. The Detention Centre Rules 2001 did not require the Secretary of State to set flexible rates of pay.

The Article 14 ground was also dismissed. The paid work was not within the “ambit” of Article 4 ECHR or Article 1 of the First Protocol, and even accepting for the sake of argument that it fell within the ambit of Article 8, prisoners were not a relevant comparator group and the flat rate of pay had an objective justification.

The judgment is available here.

David Blundell QC and Richard Turney appeared for the Secretary of State.

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