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Home Secretary May Be Found to Have Breached Smoking Ban and Discriminated against Muslim detainees in High Court ruling on Conditions at Brook House IRC (31 January 2018)

Date: 31/01/2018
Duncan Lewis, Main Solicitors, Home Secretary May Be Found to Have Breached Smoking Ban and Discriminated against Muslim detainees in High Court ruling on Conditions at Brook House IRC

The High Court judgment, on conditions in immigration detention, is due to be handed down tomorrow, 1 February 2018, at the Royal Court of Justice (court 49). The ruling will discuss whether the Home Office has illegally allowed the smoking ban to be contravened in detention centres. The court will also make a finding on whether the lock-in regime at Brook House IRC, which forces detainees to be locked into their cells for up to 13 hours a day, discriminates against Muslim detainees who are forced to pray next to an open toilet in potentially unsanitary conditions.

The challenge was brought by the public law team of Duncan Lewis Solicitors, on behalf of clients detained at Brook House IRC. The cases were heard in the High Court on 23 - 24 January 2018.

Smoking Ban

The High Court may find that, for over ten years, the Home Office has intentionally ordered management at immigration detention centres to illegally contravene the smoking ban.

Smoking in all enclosed work spaces was banned in July 2007 following the Health Act 2006 and the Smoke-free Regulations 2007. The regulations allowed certain places to be exempt from the ban, including care homes and private prisons.

Crucially however, immigration detention centres were not made exempt from the Smoke-free Regulations, and for over ten years the Home Office has expressly set out a policy allowing detainees to smoke in their cells.

The challenge brought by the Claimants in this matter followed their detention at Brook House IRC. Detainees at the centre can be held in potentially cramped conditions with up to three-men per room and are locked into their cells for up to thirteen hours a day. Her Majesty’s Chief Inspectorate of Prisons (HMCIP) has repeatedly raised concerns about poor ventilation systems at Brook House. Allowing smoking in such conditions has thus raised serious public health concerns.

The most recent version of the Home Office’s policy on smoking in detention centres, approved when the current Prime Minister, Theresa May, was Home Secretary, accepts that there was no exemption for detention centres. The Home Office decided nevertheless to take a “pragmatic approach” which allowed detainees to smoke.

The High Court will decide whether or not this “pragmatic approach” is actually an illegal approach.

Lewis Kett, one of the solicitors at Duncan Lewis representing the Claimants, discussed the potential implications of this judgment:

“This month’s judgment by the High Court could find that the Home Office knowingly acted illegally in permitting smoking to take place in immigration detention centres. This is all the more alarming given the serious public health concerns in allowing this, whilst also locking detainees in their cells for up to 13 hours in potentially overcrowded and poorly ventilated conditions. We also know of many non-smoking detainees who explained they have been forced to share cells with smokers. The Home Office may need to seriously rethink and come up with a legal solution to ensure detainees’ rights to smoke. This may have to include a reduction in their lock-in regime.”

Conditions for Muslim Detainees

The High Court may declare that the Secretary of State for the Home Department has interfered with the rights of Muslim detainees to properly observe Islam. This may be found to be a direct consequence of not conducting an assessment (prescribed by legislation), which would have enabled the Secretary of State to turn her mind to the particular obstacles faced by Muslim detainees within Brook House IRC.

The lock-in regime means that Muslim detainees are left with no choice but to undertake mandatory prayers within their cells, where they must pray next to an inadequately screened toilet. The HMCIP has repeatedly raised concerns both with regards to the adequacy of ventilation and general sanitation within cells at Brook House IRC.

The evidence obtained and relied upon by the Secretary of State herself indicated that prayer in such conditions is “highly discouraged” in Islam. As such, the High Court may rule that the Secretary of State must turn her mind to the exact nature of the interference at hand, in order for her to ascertain whether (i) she can alleviate the concerns of Muslim detainees or (ii) whether she can attempt to justify the interference with the ability of Muslim detainees to properly observe their faith.

Sheroy Zaq, a solicitor within the legal team at Duncan Lewis representing the Claimants, states as follows:

“The Secretary of State is legally obliged to conduct an assessment as to how the rights of Muslim detainees are interfered with as a result of her decision to force them to pray in their cells overnight. Despite asserting, as early as November 2017, that she would turn her mind to these issues, she has sat on her hands until now. There are more Muslim detainees in Brook House IRC than detainees of any other religion, and, as such, she ought to have addressed these considerations much sooner. It is regrettable that it has taken litigation of this nature to compel her to comply with her legal obligations.”

The Claimants are represented by Lewis Kett, Sheroy Zaq, Toufique Hossain, Puja Nandi, Dania Jawaid and Lottie Hume, of Duncan Lewis Solicitors’ Public Law Team.

Counsel Stephanie Harrison QC, Raza Halim and Stephen Simblet of Garden Court Chambers were instructed.

For further information please contact Toufique Hossain at toufiqueh@duncanlewis.com on 07940502376, or Lewis Kett at lewisk@duncanlewis.com on 07533765950.

Duncan Lewis Public Law Solicitors

The Duncan Lewis Public Law Department has been recommended by Legal 500 2017, with particular praise for their work successfully challenging policies under which vulnerable individuals are detained in immigration detention centres. By way of judicial review, the Public Law Department challenges decisions made by public bodies which would otherwise be non-appealable. These can be central or local government, or other organisations carrying out public functions.

The Public Law team have experience in all aspects of judicial review claimant work, including obtaining emergency orders and other interim relief to prevent breaches of human rights, following up judicial reviews with actions for damages in both the County and High Court and successfully pursuing judicial review matters to the Court of Appeal and Supreme Court.

Our Public Law solicitors conduct all stages of such matters from initial pre-action correspondence to filing, conducting and settling claims and costs negotiations and litigation. Duncan Lewis solicitors carry out both publicly and privately funded work.

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