Babu Morita v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 27 March 2019 |
| Neutral Citation | [2019] EWHC 758 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1296/2018, CO/3924/2018 |
| Date | 27 March 2019 |
[2019] EWHC 758 (Admin)
Mr Justice Murray
Case No: CO/1296/2018, CO/3924/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Southey QC and Mr Nick Armstrong (instructed by Duncan Lewis (Solicitors) Limited) for the Claimants/Applicants
Mr David Blundell and Mr Richard Turney (instructed by The Government Legal Department) for the Defendant/Respondent
Hearing dates: 4 and 5 December 2018
Approved Judgment
I have before me two applications for permission to apply for judicial review in relation to two linked claims, that came before me at a “rolled-up” hearing to consider permission and, if permission is granted, the substantive claim for judicial review. Each applicant has been detained under immigration legislation and held in an immigration removal centre (“IRC” or “removal centre”) in England, where he undertook paid activities for which he was paid £1 per hour under the current regime applicable to such activities.
The purpose of each application is to challenge by way of judicial review the decision of the respondent, the Secretary of State for the Home Department (“the Secretary of State”) not to increase the rate paid for paid activities undertaken by detained persons in removal centres and not to modify the payment regime to provide more flexibility (“the 2018 Decision”).
The 2018 Decision was taken on or around 3 May 2018, following a review commenced by the Secretary of State in 2017 and completed on 30 April 2018 (“the Pay Review”), the results of which are set out in his report entitled “Review into the rate of pay within immigration removal centres” (“the Pay Review Report”). The 2018 Decision was communicated to Duncan Lewis (Solicitors) Limited (“Duncan Lewis”), solicitors for the applicants, by letter dated 3 May 2018.
Procedural History
On 25 May 2017 Duncan Lewis had sent a pre-action protocol letter to the Secretary of State on behalf of six of its clients who had been detained persons undertaking paid activity in removal centres, none of whom is an applicant in relation to these claims. In that letter, Duncan Lewis set out arguments broadly along the lines pursued in these proceedings.
In his response dated 15 June 2017 to the pre-action protocol letter, the Treasury Solicitor on behalf of the Secretary of State stated that he considered the proposed claim to be without merit and that accordingly the Secretary of State did not intend to amend the pay regime for paid activity in removal centres in the ways sought by Duncan Lewis's clients. He did note, however, that the Secretary of State intended to review the rate of pay for paid activity in removal centres and would update, if necessary, a related policy equality statement, to which I will return in due course. The Secretary of State considered that, notwithstanding the lack of legal merit in the proposed claim, those steps would address in full the underlying complaint of Duncan Lewis's clients.
In further correspondence in June 2017 between Duncan Lewis and the Treasury Solicitor, the Treasury Solicitor confirmed that the Secretary of State's aim was to complete the Pay Review by September 2017. The Pay Review was not, however, completed by that date.
On 23 March 2018 Mr Morita, another client of Duncan Lewis, filed his claim to challenge by way of judicial review the removal centre pay regime (Claim No CO/1296/2018) (“the Morita Claim”).
As already noted, the Secretary of State completed the Pay Review on 30 April 2018. On 1 May 2018 the Treasury Solicitor on behalf of the Secretary of State filed an Acknowledgment of Service in relation to the Morita Claim, attaching a copy of the Pay Review Report. The Treasury Solicitor accepted that the Pay Review Report was “material” to the Morita Claim and acknowledged that Mr Morita might wish to file an application to amend his Grounds of Claim in light of it.
By consent on 22 May 2018 it was ordered that Mr Morita could file and serve an application to amend his Grounds of Claim and the Amended Grounds of Claim by 4:00pm on Monday, 4 June 2018, with the Secretary of State permitted to file and serve his Summary Grounds of Defence within 21 days of service of the Amended Grounds of Claim.
On 27 June 2018, the Secretary of State filed his Summary Grounds of Defence. As they were required to be filed by 25 June 2018, he applied for a short extension of time. Mr Morita then sought permission to file a Response to the Summary Grounds of Defence.
On 16 July 2018, on a review of the papers, Lang J ordered that the Morita Claim be listed for a rolled-up hearing and gave case management directions.
By consent order sealed on 29 August 2018 the parties agreed that the Secretary of State could file detailed Grounds of Defence and any written evidence by 20 September 2018.
On 14 September 2018 Mr Morita filed an application seeking to have Mr Shola Badmus, GW, Mr Okwudili Chinze and Mr Granville Millington added as claimants to his claim, together with supporting witness statements from each of them. The Secretary of State resisted the application, filing a response to the application dated 20 September 2018.
On 21 September 2018, on a review of the papers, Cockerill J dismissed the application to add Messrs Badmus, GW, Chinze and Millington as claimants to the Morita Claim.
On 5 October 2018 Messrs Badmus, GW, Chinze and Millington filed their claim to challenge by way of judicial review the removal centre pay regime (Claim No CO/3924/2018) (“the Badmus Claim”). In their Claim Form, they also made an application for the Badmus Claim to be linked to the Morita Claim and then for the four of them to be substituted for Mr Morita as the claimants in the Morita Claim.
On 26 October 2018, on a review of the papers and by consent of the parties, Lang J ordered that the Morita Claim be linked with the Badmus Claim and also ordered that Messrs Badmus, GW, Chinze and Millington be added as the second, third, fourth and fifth claimants, respectively, in the Morita Claim. At the same time, she refused the application that they be substituted for Mr Morita in the Morita Claim.
Lang J noted in her reasons that matters had moved on since Cockerill J had refused permission to add the additional claimants to the Morita Claim. It appeared that Mr Morita had either lost or was likely to lose his legal funding following an award of damages made to him by the Secretary of State in respect of unlawful detention. He was reluctant, in that case, to continue as a litigant in person. Lang J accepted that this was a test case, with common issues across the two claims, hence the desirability of linking the claims and adding new claimants to the earlier claim. She was not, however, happy to substitute the new claimants for Mr Morita on the basis of an application by the new claimants, made in the context of their own claim, without a document from Mr Morita confirming his consent to that course and confirming that he had been advised of his options and understood the consequences of his decision to be removed from the claim. He could file the requisite notice if he wished to be removed from the claim.
On the same day, in relation to the Badmus Claim, Lang J made an order for the Badmus Claim to be linked with the Morita Claim and to be adjourned for both claims to be listed in court to be heard at a rolled-up hearing on 4 and 5 December 2018, with a time estimate of two days. She also gave case management directions for the hearing, including provision for the Secretary of State, if so advised, to file and serve Detailed Grounds of Defence and evidence in relation to the Badmus Claim.
On 13 November 2018 the parties signed a consent order seeking to stay the Morita Claim behind the outcome of the Badmus Claim. I approved the consent order on the first day of the hearing. The result is that the Morita Claim remains stayed pending any application on notice. References to the applicants in the remainder of this judgment exclude Mr Morita.
The Badmus Claim came on for hearing before me on 4 December 2018. Rather than hear and rule separately on the application for permission, I invited each party to make all of their submissions in relation to the Badmus Claim, both as to permission and as to the substantive claim.
Background
There are a number of removal centres in the United Kingdom, most of which are in England. The management of most of the removal centres is contracted out by the Secretary of State to private companies with some being operated by HM Prison & Probation Service (“HMPPS”). Healthcare at each removal centre is contracted to an appropriate healthcare service provider.
Part VIII of the Immigration and Asylum Act 1999 (“the 1999 Act”) sets out the basic statutory provisions governing removal centres and the custody and movement of detained persons. Section 153 of the 1999 Act empowers the Secretary of State to make rules for the regulation and management of removal centres, including with respect to the safety, care, activities, discipline and control of detained persons.
Under various provisions of the 1999 Act, including section 153, the Secretary of State made the Detention Centre Rules 2001 (SI 2001/238) (“the 2001 Rules”), which came into force on 2 April 2001.
Removal centres are regulated and managed in accordance with:
i) the 2001 Rules;
ii) Detention Services Orders (“DSOs”), in which the Secretary of State sets out guidance on a variety of issues relating to the management of removal centres; and
iii) the Detention Services Operating Standards...
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