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Soltany and Others – High Court dismisses challenge to Lock-in Regime at Brook House IRC (26 August 2020)

Date: 26/08/2020
Duncan Lewis, Main Solicitors, Soltany and Others – High Court dismisses challenge to Lock-in Regime at Brook House IRC

In a judgment handed down on 21 August 2020, the High Court have ultimately dismissed our clients’ challenge to the lock-in regime at Brook House Immigration Removal Centre (IRC) and the cell conditions as they existed in 2017-18.

Brook House is a centre for immigration detainees but designed to Category B prison standards. Our clients were held in conditions that included being locked in their cells for up to 11 hours overnight in conditions they claimed were overcrowded, unsanitary, poorly ventilated, and which breached their rights to observe their religion. The centre was run by G4S during the relevant period.

The final hearing was heard over three days in June 2020. Mr Justice Cavanagh dismissed all of the claimants’ grounds for judicial review. He found that both the prolonged lock-in regime and the cell conditions were ‘sub-optimal’ but that ultimately they were not unlawful, and did not breach rights under Articles 5, 8, 9 and/or 14 EHCR. He found that the lock-in regime of 11 hours was not irrational and was connected to the statutory purpose of creating a relaxed regime whilst maintaining security and safety.

The claim followed on from the successful judgment in 2018 of R (Hussein & Rahman) v SSHD [2018] EWHC 213 which found that the use of the lock-in regime amounted to indirect discrimination against two Muslim detainees (also represented by Duncan Lewis) in that it forced them to practice Islam by praying next to unscreened toilets in unsanitary and overcrowded conditions. Following that judgment the Home Office were forced to complete an impact equality assessment where they held that although the regime could disproportionately impact Muslim detainees, it was justified on the basis of the operational need to maintain a safe and quiet centre throughout the night. That judgment also found that the Home Office were illegally flouting the smoking ban at Brook House.

After the High Court declined in Hussein to deal with the wider issues regarding the lock-in regime at Brook House, a further cohort of Claimants (Mr Soltany, Mr Ebadi and Mr Oriakhail) were granted permission in April 2019 to pursue a wider challenge. They pursued the following grounds:

  1. Whether the lock-in regime operated at Brook House, known officially as the "night state", where detainees were held in their cells from 9pm to 8am, had a sufficient lawful basis (including whether it was compatible with Article 5 ECHR and the procedural requirements of Article 8) and if it did, whether the particular regime was proportionate and complied with the requirements of the Detention Centre Rules 2001 to create “a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment”

  2. Whether the conditions of the cells breached Articles 5 and/or 8 ECHR. The conditions included placing detainees in three-men cells designed for two, which lacked sufficient ventilation and with in-cell toilets that the Claimants claimed were unsanitary and unscreened, meaning they had to use the toilet in front of their cell-mates.

  3. Moreover, for those detainees who observed the Muslim faith, it was a requirement that they performed prayers in their cell during the night state period. The Claimants argued that this meant in some cases that they had to face the toilet when they prayed and, in every case, it meant that they were in very close proximity to the toilet when they prayed. It was argued that the regime and conditions subject Muslim detainees to an unlawful, discriminatory and/or disproportionate interference with their rights under Article 9 ECHR read alone and/or with Article 14 ECHR and the substantive provisions of s.19 of the Equality Act 2010.

  4. Whether there was an unlawful failure in failing to publish clear and precise criteria for how detainees were allocated to detention centres, including Brook House, meaning there was no meaningful opportunity to make representations or challenge any allocation decision.

Evidence from Her Majesty’s Chief Inspector of Prisons (HMCIP), Stephen Shaw on his 2016 and 2018 reviews of immigration detention, and from Kate Lampard’s review of Brook House in 2017-18, all raised serious concerns about the use of a prolonged lock-in regime, and the conditions at Brook House during the relevant period. Late disclosure also confirmed that the Home Office themselves were seriously concerned about G4S’ proposal for the lock-in hours when assessing their bid in to run Brook House in 2009 – noting that the hours proposed were ‘rather harsh’, ‘excessive and not in keeping with the ethos of the rest of the estate’, with ‘no justification for such a lengthy period of non-association’. This however did not prevent the Home Office from awarding G4S the contract to run Brook House.

The judgment focussed on the regime and conditions as they existed in 2017-18. The litigation itself was started three years ago by the claimants in Soltany & Ors and in Hussein & Rahman. The final judgment is particularly disappointing for the claimants and the merits of an appeal are being considered, but the litigation has shone a spotlight on the internal running of detention centres and the Home Office’s relationship with its private contractors such as G4S. Moreover, it has helped bring about about the following reforms at Brook House and the detention estate as a whole:

  • The lock-in regime has been reduced to nine hours from May 2020 following Serco taking over the contract to run Brook House.

  • The practice at Brook House of detaining three people in cells designed for two was ceased in 2018 after Stephen Shaw’s report into detention endorsed the arguments raised in Hussein. This reduced the detention estate by 60 places at any time.

  • The effects of this decision also caused the Home Office to suspend plans to introduce three-men cells at Harmondsworth meaning that detention places were reduced overall at a time when the Home Office were intending to increase numbers.

  • The fixing of stable doors to in-cell toilets to replace curtain screening was introduced in 2019, not only at Brook House but elsewhere where there were in-cell toilets (such as Harmondsworth and Colnbrook).

  • The Home Office were forced to issue a policy, Detention Services Order 04/2018, Management and security of night state, bringing into the public how and why lock-in regimes exist and how they should be managed. The arrangements had previously been simply private contractual agreements between the Home Office and the private contractor. An Equality Impact Assessment was also undertaken into the effects of the lock-in regime at Brook House on Muslim detainees forced to pray in their cells.

  • Banning the unlawful practice of allowing smoking to take place cells in Brook House which posed a serious health risk, was a particular issue for non-smokers forced to share with smokers and exacerbated already poorly ventilated conditions. G4S were subsequently criminally prosecuted for failing to comply with the smoking ban.

The Claimants in Soltany & Ors were represented by the Harrow Public Law department at Duncan Lewis, led by Lewis Kett. The team included Jamie Bell, Lucy Horn and Marie Nedlec. They instructed Stephanie Harrison QC, Raza Halim and David Sellwood of Garden Court Chambers

The Claimants in the predecessor case, Hussein & Rahman, were represented by Lewis Kett, Sheroy Zaq and Toufique Hossain, with assistance from Puja Nandi, Dania Jawaid and Lottie Hume. They instructed Stephanie Harrison QC, Raza Halim and Stephen Simblet of Garden Court Chambers

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