Duncan Lewis Solicitors’ Public Law team brought a challenge against the Home Office on behalf of two detainees, which on 1 February 2018 the High Court ruled in favour of, forcing the Home Office to take responsibility for the unlawful conditions within detention centre Brook House.
The Claimants brought the challenge on the grounds that having a “pragmatic” policy on allowing smoking inside Brook House is unlawful and that locking detainees up for more than 13 hours a day in unsanitary, poorly ventilated and overcrowded cells is in breach of the Equality Act 2010 and in violation of fundamental human rights.
Duncan Lewis’ Public Law team represented the Claimants, Mr Hussein and Mr Rahman, in their challenge. The Claimants argued that forcing Muslim detainees to practice Islam by praying next to unscreened toilets in their cells during the “lock-in” period is discriminatory. The High Court has recognised that this practice, whilst being unsanitary, is also an adverse environment for devout individuals to practice Islam properly as prayer in these “extreme circumstances” is "highly discouraged" in the tenets of that religion.
Mr Rahman spoke of this in his statement dated 15th November 2017:
“I cannot pray in my room as it is not clean, you cannot properly follow Islam with a toilet in the room in which you pray and with this sort of uncleanliness and smell within a cell. I simply cannot concentrate on prayer given the odour and uncleanliness…The conditions within my cell ensure that I cannot follow Islamic practice as per the teachings of the religion."
Mr Justice Holman ruled that:
"a combination of the required hours of prayer, the lock in, room sharing, and unclosed lavatories within the rooms, does result in an interference with, or a limitation upon, the rights of a Muslim protected by Article 9."
“I accept that adherents not only of Islam, but of other faiths could feel degraded at having to pray, avoidably, within three metres of an exposed and open lavatory pan (there are no seats or lids), especially one which may recently have been used by other people.”
He ruled that by allowing this, the Home Office were indirectly discriminating against these detainees and their right to practice their religion, as detailed in Article 9 of the European Convention on Human Rights. Mr Justice Holman recognised that Article 14 was also engaged in that it is indirectly discriminatory on the ground of religion.
He also held that the Home Office had unlawfully failed to comply with her Public Sector Equality Duty under s149 Equality Act 2010 in failing to assess the impact of the lock-in regime on Muslim detainees. Crucially the judge ruled that the Home Office’s concession during the proceedings that she would remedy this should not prevent a declaration of unlawfulness being made:
“A minister who has failed to discharge that heavy duty cannot avoid censure by a concession made in the course of the proceedings themselves”
The Claimants also argued that the Home Office’s “pragmatic” policy on smoking inside cells is unlawful and poses a serious health risk. Under the Health Act 2006 and the Smoke-free Regulations 2007 smoking is prohibited in all public places, except private prisons. The legislation does not directly refer to privately run immigration detention centres as either exempt or liable under its ruling, which up until now has resulted in unclear judgments.
Mr Justice Holman ruled that:
“The words "a pragmatic approach" in paragraph 2 of the DSO quoted above are, frankly, little more than a euphemism for knowingly evading the law for a "pragmatic" reason.”
"all those areas of Brook House which are enclosed or substantially enclosed must be smoke-free, including the detainees' rooms."
This High Court judgment, in stating that the Home Office is unlawful in allowing smoking inside any areas within immigration removal centres which are enclosed, will inform future judgments on this legislation.
The Claimants were represented by solicitors Lewis Kett and Sheroy Zaq, Director Toufique Hossain, trainee solicitors Puja Nandi, Dania Jawaid and caseworker Lottie Hume, all of Duncan Lewis solicitors.
Counsel in this case were Stephanie Harrison QC, Raza Halim and Stephen Simblet of Garden Court Chambers.
Read more about the case covered in the BBC, Guardian and Independent.
Patrick Page, senior caseworker in the Public Law department, gives further details on the case in the Canary, whilst trainee solicitor Puja Nandi discusses the case on RT.