Even though asylum seekers do not have a right to work, detainees in immigration removal centres, where people are held while awaiting deportation, are allowed to work while in detention. According to a Report on the conditions in one of these centres, Brook House, there were 116 paid work roles in the centre: ‘[t]hese included wing orderlies, barbers, kitchen orderlies and posts in the laundry, the garden, the chaplaincy and the food serveries’. Despite performing this work, those detained could not earn qualifications, certificates of other forms of recognition for it. There are detainees who work seven days a week while in detention, cleaning the floor, showers and rooms. One detainee explained in a blog post that he had morning, afternoon and evening shifts, as well as shifts in between. There was so much work for him to do that he ended up cleaning all day, seven days a week. He took pride in his work and received positive feedback from staff but was only paid £1 an hour, and a maximum of £30 a week (for a maximum of 30 hours a week, as the Detention Services Order 01/2013 provides).
R (on the application of Shola Badmus, GW, Okwudili Chinze and Granville Millington v the Secretary of State for the Home Department)
Work while in immigration removal centres was the subject of a recent Court of Appeal case, R (on the application of Shola Badmus, GW, Okwudili Chinze and Granville Millington v the Secretary of State for the Home Department). The appellants were subject to immigration detention and undertook paid activities while detained in Brook House. They worked as cleaners and cleaning supervisors, barbers and welfare ‘buddies’ (organising legal advice surgeries, Home Office interviews for other detainees, and supporting those faced with problems), and were paid £1 an hour for their work.
There is a National Minimum Wage Act in the UK, under which the minimum wage is currently set at £8.20 per hour for those over 25 years old. However, section 59 of the Immigration, Asylum and Nationality Act 2006 excludes immigration detainees from minimum wage legislation. Detention Services Order 01/2013, in turn, provides that detainees should be paid £1 per hour for ‘routine work’ (cleaning, for instance), and £1.25 per hour for ‘specified projects’ (painting, for instance). Immigration removal centres are often run by private companies. These companies ‘offer the opportunity’ to detainees to perform essential work for the maintenance of the centres, and pay them £1 per hour. There is limited evidence on the working conditions in these detention centres, as Bales and Mayblin explain here.
In 2016 the Secretary of State published a Report by Stephen Shaw, a former Prisons and Probation Ombudsman. The Report recommended that the Home Office reconsider the rates of pay for work in immigration detention. A Pay Review Report that followed gave a few different options on how the pay for this work could be improved and brought in line with inflation, including an option to do nothing about it. The Home Office Ministers opted to do nothing.
Those working while in immigration detention are not the only category of workers who are excluded from the national minimum wage. Another excluded category are prisoners. In light of this, those working either for the state or for private employers while in prison receive about £10 per week. However, prisoners’ work is not remunerated according to a flat rate. It varies according to several factors, and particularly so as to encourage and reward prisoners’ involvement in the scheme.
In Badmus, the appellants claimed that the fact that they were only paid a flat rate of £1 per hour for the work that they undertook violated their human rights and was contrary to and frustrated the purpose of the 2001 Detention Centre Rules that provide for the safe and humane detention in immigration removal centres. On appeal they challenged the judgment of Murray J below, refusing them permission to bring a judicial review. They also claimed that the High Court Judge was wrong to treat their claims as out of time. The Court of Appeal found that the claims were in time but maintained that Murray J was correct to refuse permission to apply for judicial review. There was no frustration of the legislative purpose of the 2001 Rules, as the rates of pay set by law were not exploitative and did not violate human dignity. The human rights arguments were also dismissed, and in the rest of this piece I will deal with that aspect of the decision.
More specifically, the appellants argued that their treatment constituted a violation of article 14 of the ECHR, which prohibits discrimination, in conjunction with article 4 (prohibition of slavery, servitude, forced and compulsory labour), article 8 (right to private life), and article 1 of Protocol 1 (the right to property).
Article 14 of the Convention prohibits discrimination, but is not a free-standing equality provision. It is about discrimination in the enjoyment of other Convention rights. These other Convention provisions do not have to be violated – it is sufficient that the conduct in question ‘falls within their ambit’, as the ECtHR puts it. The grounds of discrimination are not exhaustively enumerated. In Badmus the ground at stake was the status of someone as an immigration detainee, which the appellants compared to those working while in prison.
I will return to the discrimination claim shortly, after looking at the other Convention provisions that were invoked in order to examine if the conduct falls within their ambit. For now, it is important to highlight that the appellants brought a relatively narrow discrimination claim, seeking to challenge the fact that their pay rate is flat, which is not the case for those working while in prison. The appellants could have brought a broader claim comparing their rate of pay to workers in the UK in general by challenging the blanket exclusion of those working in immigration detention from the national minimum wage. They didn’t do that.
As there is no need for the other Convention right to be violated when invoked with article 14, courts sometimes interpret the underlying right broadly because the applicant only has to show that its enjoyment is affected. In Sidabras and Dziautas v Lithuania, for instance, the Court interpreted the enjoyment of the right to private life in a way that also incorporated elements of a right to work. In Badmus, though, the Court of Appeal was not receptive to broad interpretation of the Convention. Such a broad interpretation would also fit its character as a ‘living instrument’ that has to be understood in light of present-day conditions (this is another important interpretive doctrine of the ECtHR).
Exploitation and Article 4
The Court of Appeal rejected the claim that there is anything exploitative in the treatment of immigration detainees who work for £1 per hour, saying that it falls ‘well outside’ the scope of article 4. Article 4 prohibits slavery, servitude, forced and compulsory labour. In rejecting the claim, the Court referred to the UKSC case Reilly that involved conditional welfare benefits. The argument advanced in Reilly was that the requirement that Ms Reilly work for Poundland as a condition for claiming her unemployment benefit constituted forced and compulsory labour in contravention of article 4(2). This was because the work at Poundland ‘was exacted… under menace of [a] penalty’. In Reilly, the UKSC recognised that article 4 has ‘exploitation at its heart’. This is a significant statement because the concept of exploitation is broader than the concepts of slavery, servitude, forced and compulsory labour. Labour exploitation is about taking advantage of someone in order to make profit. However, the Court ruled that the treatment in Reilly did not meet the article 4 bar, and said that it was not sufficient for work to be not just compulsory and involuntary, but the duty and its performance must be ‘unjust’, ‘oppressive’, ‘an avoidable hardship’, ‘needlessly distressing’ or ‘somewhat harassing’.
Does the treatment of those in immigration detention fall within the ambit of article 4 (which as I said need not be violated alone when invoked together with article 14)?
First, the Court of Appeal said that the work regime is ‘entirely voluntary’. This is a surprising statement, when referring to people whose freedom of movement and freedom to do the work of their choice are entirely restricted. It is true that there are no sanctions for detainees who do not want to work while in immigration detention. However, the only income that they have while in detention is an allowance of £5 per week. The need to support themselves (including meeting some of their basic needs), making a phone call, and the need to support their dependants should make us question how voluntary their work is. This is illustrated in a powerful piece published on the Futures of Work Blog. A detainee explained that he decided to work while in immigration detention in order to be able to buy an energy drink occasionally or to eat something other than what they were served in the detention centre. ‘I would prefer to eat just a can of tuna than the food we were served’, he said. The allowance of 71p per day or £5 per week could not cover these.
In addition to this, detainees in immigration detention sometimes spend months (or years) in detention, so work also meets a basic human need to make oneself feel useful rather than spending their life idle in uncertainty as to the duration of detention. Work generally, and work in immigration detention too, can give people’s life a purpose and meaning. This function of work is particularly important in immigration removal centres where very high suicide rates have been documented. Exploitative work does not give meaning to people’s life. The pressure to cover basic needs, support dependents and maintain their mental health should be viewed as sufficient at least for the work regime to fall within the ambit of article 4. It is worth noting here that the work performed is not performed as a hobby. Bales and Mayblin explain that it is strictly structured through timetables and specific requirements on how to do it, while those working can be sanctioned by being removed from work if their performance does not meet the necessary standards.
It is true that the European Court of Human Rights has this far required a strong element of coercion when examining whether there is a violation of article 4. It has ruled that there are breaches of the provision in cases of migrant domestic workers whose passports are withheld (Siliadin v France) and victims of sex trafficking (Rantsev v Cyprus and Russia). However, in Chowdury v Greece it said that:
where an employer abuses his power or takes advantage of the vulnerability of his workers in order to exploit them, they do not offer themselves for work voluntarily. The prior consent of the victim is not sufficient to exclude the characterisation of work as forced labour. The question whether an individual offers himself for work voluntarily is a factual question which must be examined in the light of all the relevant circumstances of a case.
The Strasbourg Court examined prison labour in Stummer v Austria, which can shed light on several aspects of Badmus. Stummer involved the applicant’s exclusion from affiliation to the state pension system. Even though he worked in prison for 28 years, the state deducted 75% of his pay for his maintenance, so his contributions were not sufficient for him to have pension rights. The applicant claimed that this constituted a violation of his rights under article 4, article 14 together with 4, and article 14 together with article 1 of Protocol 1 (the right to property).
In Stummer, the majority of the Grand Chamber did not find that there was forced labour, but it did not examine the provision in conjunction with article 14 which could have given scope for a broader interpretation of article 4. In any case, Judge Francoise Tulkens disagreed with the majority on the alleged violation of article 4 alone. In a powerful dissent she explained that article 4 has to be interpreted according to present-day conditions, and that ‘work without adequate social cover can no longer be regarded as normal work’. Similarly, work that is excluded from the national minimum wage without a persuasive justification is not normal work, and should at least be viewed as falling within the ambit of the prohibition of forced labour under article 4, which, as the UKSC said in Reilly, has exploitation at its heart. The International Labour Organisation (ILO), whose interpretation of the main concepts of article 4 has been used by the ECtHR in the past, accepts that we may have forced labour in examples when we are not faced with the worst forms of coercion (such as withholding of passports). In the view of the ILO, there may be forced labour in the case of compulsory overtime, for instance. So even though the prohibition of slavery and servitude involves the most extreme restrictions of freedom, the prohibition of forced and compulsory labour can capture more subtle forms of coercion at work.
The Court of Appeal firmly rejected the argument that work in immigration detention for £1 per hour constitutes exploitation for the purposes of article 4. It examined this issue particularly when considering a different ground of the appeal (whether there is frustration or undermining of the legislative purpose of the 2001 Rules, article 3(1) that provides for humane treatment of immigration detainees). In order to support the claim that this work is not exploitative, the Court explained that it is explicitly excluded from the minimum wage:
That important legislative context shows clearly that Parliament intended the paid work regime in [immigration removal centres] is not to be conducted on the basis of any kind of assessment of, or compensation for, the true value of work undertaken, whether from the perspective of the detainee or that of any recipient of the benefit of the work undertaken.
Even though the explicit exclusion shows that the treatment is compatible with the intent of the legislator at the time, it does not show that it is not exploitative and in breach of human rights. What we should examine, as a starting point, is whether the law creates vulnerability to exploitation, of which the state and private companies take advantage, while we should also assess a range of factors that make the validity of consent questionable. The treatment of those in immigration detention can be viewed both as incompatible with the rationale of both the National Minimum Wage Act 1998 that was enacted to remove gross exploitation and article 4 of the ECHR, which must be interpreted according to present-day conditions.
The final point that the Court of Appeal makes in order to reject the argument that there is exploitation for the purposes of article 4 of the Convention is that neither the state nor the private companies that run the detention centres make profit from detainees’ work. This is because the ‘operator is entitled to be paid at the contractual rate whether or not detainees undertake this work and complete it to any particular standard’. This is a troubling statement given that the operators save large sums of money thanks to the detainees’ cheap labour.
The state may pay the private companies that run the immigration centres the agreed contractual rate. However, the Court must have considered the possibility that the agreed rate would have been higher had the operators employed others, non-detainees, to perform the essential work for the maintenance of the centres, as these other workers would have been entitled to the minimum wage. If the Home Office is overcharged by the contractors, on the other hand, then the private companies themselves make profit by not hiring workers to perform this work for at least the minimum wage. Unsurprisingly, there is evidence that because the detainees perform all this essential work for the maintenance of facilities, companies do not hire cleaners and others who would work on the maintenance of the detention centres. Saving money through paying detainees far below the minimum wage for the maintenance of the detention facilities is profitable, as the research of Corporate Watch has shown. The statement then that there is no profit for the state or private contractors who underpay immigration detainees is not true.
The Court also rejected the argument that the claim falls within the ambit of article 1 of Protocol 1 that protects the right to private property. The provision says that ‘[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions’. The ECtHR has frequently ruled that salaries can be protected under article 1 of Protocol. Here it simply had to accept that the claim falls within its ambit (it is not necessary to find a violation as it is examined together with article 14). Yet the appellate Court was dismissive of this point, with which it dealt very briefly. It said that the claim involves some ‘future income stream’, and that ‘[t]he hope of payment for work, if offered, under a voluntary scheme does not have even the most tenuous connection to A1P1.’
The statement of the Court of Appeal would have been correct, had the claimants sought to establish a right to be provided with paid work while in detention. In that case, the Court would have been right to respond that the hope to be paid for work, if any work is offered, is not covered by the provision. However, this was not the claim here.
Article 1 of Protocol 1 covers not only ‘existing possessions’ but also ‘legitimate expectations’ of obtaining effective enjoyment of property rights, according to the case law. It is important to appreciate that property is an ‘autonomous concept’ for the purposes of the Convention, which is independent from the classification in domestic law. It is not necessary for national law to recognise the interest at stake as a property right.
In Belane Nagy v Hungary, the Court said that ‘a legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision’. Here it can be said that national minimum wage legislation can form the legal basis for the claim to fall within the ambit of the concept of a ‘legitimate expectation’. The exclusion of categories of workers from this interest can be viewed as falling within the ambit of the provision, with the possibility opening for the exclusion to be seen as arbitrary for the purpose of article 1 of Protocol 1 alone or together with article 14. The Stummer case may again shed some further light here. The majority of the Strasbourg Court said that article 1 of Protocol 1 does not create a right to acquire property. It explained that the authorities are free to decide whether to have a social security system and its details. However, it explained that as soon as a state has a system in place, the law generates a proprietary interest that falls within the ambit of the right to property.
The appellants’ claim did not involve some abstract possibility to be offered work, contrary to what the Court of Appeal said. It involved pay for work that they were actually offered and that they performed; work that is regularly offered in immigration removal centres, which is essential for the running of the detention centres. The National Minimum Wage Act and the regulation of prison labour could be viewed as the legal basis for their legitimate expectation that their work would be valued as much as other workers’ labour.
The Court of Appeal should not have turned down so quickly the modest claim that the rate of pay should be similar to prisoners’ pay (who on the view of the Howard League for Penal Reform are also exploited).
Private Life and Discrimination
The only one of the substantive provisions that the Court accepted as engaged, albeit with reluctance, was article 8 (right to private life). The Court referred to the 2004 case Sidabras where the ECtHR found that the right to work falls within the ambit of the right to private life, and that the dismissal and ban from access of the applicants from public and many jobs in the private sector violated articles 8 and 14. This was a landmark case, which recognised the value of work for private life, as I argued here.
Having reluctantly accepted that the claim fell within the ambit of article 8, the Court returned to examine and reject the argument that there was discrimination. The right not to be discriminated against is violated ‘when States treat differently persons in analogous situations without providing an objective and reasonable justification’.
The appellants argued that work in immigration detention should be compared with work in prison. Prison labour is also excluded from minimum wage, as I said earlier, but it is not paid at a flat rate. So if the comparison were accepted, the pay of immigration detainees would have to vary depending on the nature of the work performed, as is the case with prison labour, rather than being flat at £1 per hour. The Court of Appeal rejected this argument, holding that prisoners were not a sufficiently comparable group – in particular because they, unlike immigration detainees, were required to work.
There is much that the categories of those working in prison and those working in immigration detention have in common, which explains why the appellants invoked the comparison under article 14. Both those working in prison and those working in immigration detention perform the work while they are deprived of their liberty. Their freedom of movement and freedom of choice of work are curtailed. Even though at first sight detainees in immigration detention seem to have a choice whether to work or not while in detention, the pressure to meet their basic needs, support their dependants, maintain contact with the outside world by being able to pay for making a phone call, and preserve their mental health makes the element of choice to work much more questionable than the Court of Appeal was prepared to admit.
The aims of work in immigration detention and prison may be different to a certain degree (rehabilitation being a central aim of prison work). However, they are not entirely different, given that in both instances work helps those who are deprived of their freedom to have a meaningful way to spend their time. Both instances affect people who have no freedom of movement or freedom of choice of work and who are excluded from minimum wage legislation while deprived of their freedom. This is what makes their situation ‘relevantly similar’ to use the wording of the ECtHR. At the same time, the fact that prisoners are required to work a certain number of hours is not sufficient to distinguish the categories for present purposes because detainees in immigration detention face significant pressure to work. In both examples, the law itself creates a structure of exploitation for those deprived of their liberty, as I have also argued here.
It is important to highlight here that in Stummer the ECtHR was prepared to compare prisoners’ work to that of regular employees for the purposes of article 14, even though these two categories have less in common than the two categories of Badmus. The Strasbourg Court recognised that prison work is different to regular employment in some ways, but said that ‘neither the fact that prison work is aimed at reintegration and resocialisation nor the obligatory nature of prison work is decisive in the present case’ and added that ‘it is not decisive whether work is performed for the prison authorities, as in the applicant’s case, or for a private employer, although in the latter case there appears to be a stronger resemblance to a regular employment relationship’. What was crucial, in the view of the ECtHR, was ‘the need to provide for old age’. In that respect, the Court accepted that ‘a working prisoner was in a relevantly similar situation to ordinary employees’. If there is enough similarity in the comparison between those working in prison and workers outside prison, the position of the Court of Appeal that there is not enough similarity between prisoners and immigration detainees who work is tenuous. It should not come as a surprise that some immigration removal centres have been described as strongly reminiscent of prisons in the 2016 Shaw Review.
Is the Difference of Treatment Justified?
Having argued that immigration detainees can be compared to those working in prison, the next question is whether the difference of treatment is legitimate: does it pursue a legitimate aim and is it proportionate to the aim pursued? The Court of Appeal agreed with the High Court decision that difference of treatment between those working in immigration removal centres and those working in prison was justified because it was based on existing operational reasons.
The exclusions from minimum wage may seem legitimate at first, and their overall legitimacy was not questioned in Badmus. Prisons and immigration removal centres are costly. Even though contribution to the cost by those who are provided with accommodation and nutrition might seem justified at first, when we observe the overall schemes more closely we see that the laws in question create vulnerabilities for those deprived of their liberty. Private entities (or state authorities themselves) take advantage of these vulnerabilities and make profit. Laws with a prima facie legitimate aim create whole structures of exploitation that are unjust (I discuss this further here).
On the question whether the difference of treatment is justified for the purposes of article 14 in Stummer the majority of the Grand Chamber recognised a wide margin of appreciation to Austrian authorities. It therefore ruled that there was no violation of article 1 of Protocol 1 together with article 14. Even if the supranational court was right to recognise a margin of appreciation (which is questionable), it can be said that sometimes the national courts are better placed to scrutinise the political decisions more closely than a supranational court. In any case, the Grand Chamber was split, with seven judges including the former President of the Court, Judge Spielmann, dissenting from the opinion of the majority on whether the difference of treatment was justified. The dissenting opinion said that even though there had been no promise to the prison worker that he would have been affiliated to the pension scheme, his exclusion should have been viewed as contrary to article 14 and 1 of Protocol 1.
In Badmus, the justification for the difference of treatment was said to stem from operational reasons. The Court accepted that a difference in rate could lead to different treatment of detainees depending on their place of detention, it might cause resentment, and might lead to non-compliance if there was a need for transfer from one centre to another. By standardising pay rates at £1 per hour and capping the maximum hours, more opportunities would be created for detainees. It is hard to see how practical reasons, or reasons of resentment, justify an injustice by paying those in detention a flat rate of £1 per hour, creating vulnerabilities of workers and structures of exploitation.
Structures of exploitation
Work in immigration detention is part of a broader structure, including restrictive visas and other vulnerabilities that are created by law and trap migrants in exploitation (Sedacca and Sharp discuss another example here). It is unfortunate that the Court of Appeal missed the opportunity to question the legitimacy of the unjust structure at stake in Badmus, and allowed the state and private contractors to continue making profit by exploiting some of the most vulnerable.
The regulation of work in immigration removal centres raises pressing questions about its compatibility with human rights, which the Court of Appeal dismissed too quickly in Badmus. The case is subject to appeal to the Supreme Court, and possibly the ECtHR if domestic remedies are exhausted. It is to be hoped that the human rights arguments will be reconsidered, and that it will be recognised that detainees’ treatment both falls within the ambit of articles 4, 8 and article 1 of Protocol 1, and violates the Convention when taken together with the prohibition of discrimination.
Virginia Mantouvalou is Professor of Human Rights and Labour Law at UCL, Faculty of Laws. She is co-editor of Philosophical Foundations of Labour Law with Hugh Collins and Gillian Lester. This is part of her project entitled ‘Structural Injustice and Workers’ Rights’, funded through a British Academy Mid-Career Fellowship.
(Suggested citation: V Mantouvalou, ‘Labour Exploitation in Immigration Detention’, UK Labour Law Blog, 1 June 2020, available at https://uklabourlawblog.com)