Challenge against £1/hour pay for detainees working in detention: A lawyer’s perspective

This blog also appears in Futures of Work Issue 9 here: https://futuresofwork.co.uk/2019/09/30/challenging-exploitation-within-uk-immigration-detention-a-lawyers-perspective/

On 16 November 2005, Tony McNulty MP, the then Home Office Minister, stood in the House of Commons and spoke very briefly about Section 153A of the Immigration and Asylum Act 1999. Mr McNulty said that this was an ‘interesting new clause’ which would allow detainees to carry out paid work in immigration removal centres in order to prevent boredom and frustration. The proposed clause would exempt immigration detainees from the national minimum wage because, in the Minister’s words, the minimum wage would not ‘reflect the true economic value of the work likely to be carried out, which is likely to be remedial and assistive’. A Labour government was arguing in the House of Commons that the labour of certain people in Britain was not of sufficient worth to warrant the minimum wage, solely because of their immigration status.

One Labour MP, Mr Neil Gerrard, pointed out that detention centres were often run by private contractors and therefore he was understandably concerned that detainees would ‘end up being used as cheap labour’. Mr McNulty’s response to this was that the work would either be ‘traditional custodial activities’ (such as light cleaning or gardening) or charitable activities. Contractors would not be allowed to bid for work on the basis that detainees would cover tasks and detainees would not carry out commercial work ‘of any description’. The clause was then passed to minimal fanfare.

In 2008, following a Home Office paper which raised concerns about different pay rates across the detention estate, the Home Office introduced a standardised pay rate of £1 an hour (or £1.25 for specified projects). The paper said that a 75p per hour pay rate was preferable but eventually reluctantly settled for £1 an hour as many detainees were already being paid that rate. In 2013, the £1 per hour pay rate was maintained in a new policy.

The standardised pay rate is, in effect, a maximum wage imposed by central government. It is a ceiling not a floor. The reason given for imposing this was there was a concern that detainees would not comply with transfers between detention centres if they were going to be paid less at a different centre. This was despite there being no evidence for this assertion (as was admitted by the Home Office). There was also no consideration as to the value of the work being done and the dignity of those who would be working.

In the year between April 2016 and March 2017, detainees carried out 887,073 hours of paid work within IRCs. Over 99% of this work was done at the rate of £1 per hour (the specified project rate of £1.25 is rarely used). This work includes cleaning, kitchen assistant, barber, welfare assistant and inducting new detainees. It is clear that detainee labour is on a widespread scale and absolutely critical for ensuring that the detention estate functions. The detention contracts with the private sector providers confirm that detainees cannot be ‘required’ to carry out the work required under their contracts. However, that is different from the statement of Mr McNulty above. It appears, from the evidence of detainees and independent reviews, that detainees carry out the vast majority of cleaning work of the communal areas. Plainly, if the detainees refused to do this work, then outside cleaners would have to be brought in by private providers and would have to be paid at least the national minimum wage. This was evident in 2005, as demonstrated by the Parliamentary debate, and remains evident now. The savings being made are obvious.

It is worth pausing at this stage and considering who it is we are talking about when we say ‘detainee’. I have used it as an imperfect shorthand for the purpose of this blog. However, it is always worth remembering that these people are not the tabloid caricature. They are asylum seekers from some of the harshest regimes in the world, they are torture survivors who have experienced the worst imaginable human cruelty, they are trafficking victims who have their basic human dignity stripped from them. They are facing an uncertain future, not sure how long their liberty will be withheld and not sure if they will be returned to their country with an uncertain future. Many have no support network to get hold of money which they need to, amongst other things, buy phone credit to speak to their legal representatives or buy food from the shop to make their lives slightly less intolerable. Their basic detention living allowance is only 71p per day. Is it any wonder that many of these individuals feel compelled to work?

We represent five clients who all worked in immigration detention for the maximum rate of £1 per hour. All of these clients have shown incredible bravery and strength to challenge the decision of the Home Office to pay them an exploitative rate of £1 per hour. All of our clients welcomed the opportunity to work, and took pride in the important jobs they did, and just wanted the dignity of having that job reflected by a proper wage. It has been an absolute privilege to represent them and to try to tell their story in the courts. Whilst we were dismissed by the High Court, we now have permission to appeal to the Court of Appeal and a hearing is to follow in 2020.    

This case raises serious questions about the hostile environment and the way we treat those who come to this country seeking protection or an escape from poverty. We hold them in detention even after some of them have made credible asylum claims. We lock them up even if it triggers their experience of persecution abroad. We then pay them a maximum rate of pay of £1 per hour to clean their own detention centre, in filthy conditions as is often the case for those on low pay, when we know that an outside contractor would get paid over £8 an hour for similar work. All of them have since been released from detention, where we deny them that same right to work at a proper living wage.

If our case is successful, the current pay regime in detention will be held to be unlawful. However, this will only mean that the government and Parliament have to think again. The purpose of the national minimum wage is to ensure that every worker in Britain, no matter how vulnerable their bargaining position, gets a basic standard of protection from exploitation. Why should this also not apply to those who are some of the most vulnerable people within our country? It is high time we started to treat everyone in this country with a basic level of dignity and respect at work, irrespective of their immigration status. The scandal of the £1 per hour maximum wage must be brought to an end.

Photo credit: Joshua Tabti, Flickr