In Soltany and Others v SSHD , the High Court dismissed a challenge to the conditions at Brook House Immigration Removal Centre (IRC), which at the material times in 2017 and 2018, was run by G4S.
The claim for judicial review, which was brought by three individuals of Afghan origin, principally contended the night-time lockdown regime, pursuant to which detainees were locked in their rooms overnight from 9pm to 8am, was both “unnecessary and unduly harsh” .
Additionally, two of the claimants argued that the combination of the night state, which meant that observant Muslims had to perform some of their daily prayers in their rooms, and the conditions of the rooms (especially the proximity of the toilet) amounted to unlawful religious discrimination.
In a complex judgement extending to over 400 paragraphs, Cavanagh J refused the application on each ground. First, the Court held that Brook House’s overnight lock-down regime and room conditions are compatible with both ECHR Articles 5 and 8. Second, the Defendant did not act contrary to either the common law or Article 5 in failing to give reasons for the allocation of detainees to specific removal centres. Third, there was no religious discrimination under ECHR Article 9, either read alone or together with ECHR Article 14. Nor was there any indirect discrimination contrary to section 19 of the Equality Act 2010.
Procedural History and Preliminary Facts
The decision in Soltany followed a prior ruling in R (Hussain and Rahman) v SSHD , in which the High Court held that the night state at Brook House, in conjunction with the presence of internal unclosed lavatories and shared rooms, did constitute unlawful indirect discrimination contrary to Article 9 and s.19 EA – unless it could be justified .
Holman J did not make a final ruling, however, because the Defendant had not yet completed an equality impact assessment (EIA) or complied with her obligations under the Public Sector Equality Duty. The EIA was subsequently conducted in December 2018. Regarding the issue of religious discrimination, therefore, the proceedings in Soltany were concerned with justification.
Central to these proceedings was the fact that Brook House IRC is built to the specification of a Category B prison. While the regime operated there is “more relaxed” than a prison, “the regime is somewhat more restrictive than that which is operated in some other IRCs” insofar as it involves prolonged and multiple lock-ins which significantly curtail the freedoms of administrative detainees .
This is because Brook House is designed to accommodate some of the most “difficult detainees”, such as Time-Served Foreign National Offenders (TSNFOs). Nonetheless, it also accommodates “ordinary detainees”. The claimants fell into this latter category.
Concerns over the stringency of this lock-in regime had previously been raised by Her Majesty’s Chief Inspector of Prisons (HMCIP), Stephen Shaw on his 2016 and 2018 reviews of immigration detention and in Kate Lampard’s review of Brook House in 2017-18. Late disclosure had also confirmed that when the Home Office was assessing G4S’s bid proposal in 2009, it had expressed concern that “the lockdown proposal is rather harsh.”
The statutory and regulatory framework
The duty to make rules in relation to the regulation and management of IRCs is found in section 153 of the Immigration and Asylum Act 1999 (“the 1999 Act”), which also permits the rules to make provision with respect to the safety, care, activities, discipline and control of detained persons.
Section 149 of the 1999 Act, meanwhile, sets out the power to contract out management of IRCs. The effect of this section is that the rules made under section 153 apply to contracted out IRCs.
Detention Centre Rules (DCR)
In accordance, inter alia, with the obligation imposed by section 153 of the 1999 Act, the Defendant made the Detention Centre Rules 2001 (“the DCR”).
The purpose of detention centres is set out at Rule 3, which provides that detention centres shall provide for the secure but humane accommodation of detained persons in a “relaxed regime with as much freedom of movement and association as possible”, while consistent with maintaining a safe and secure environment. Due recognition is to be given to “particular anxieties” to which detained persons may be subject, including when handling issues of “cultural sensitivity”.
Rule 39 of the DCR provides that security shall be maintained, but “with no more restriction than is required for safe custody and well ordered community life.”
Detention Service Orders (DSOs)
In addition to the DCR, the Defendant has, from time to time, issued Detention Service Orders (“DSOs”) and Operating Standards, which set out rules and principles about the way in which IRCs should be run and managed. At the time of the Claimants’ detention, there was nothing in the DCR, DSOs, or Operating Standards which laid down requirements or minimum standards in relation to the night state at IRCs.
In December 2018, after each of the Claimants had been released from detention, the Defendant issued DSO 04/2018, entitled “Management and security of night state”, which sets out the factors according to which the duration of the night state should be decided.
Issue One: the lack of an “adequate and clear statutory provision” authorising the night state at Brook House
In the submission of the Claimants, the lack of an “adequate and clear statutory provision” authorising the night state was a breach of domestic public law principles, and Articles 5 and/or 8 of the ECHR. There was and is nothing in the statutory scheme, or the DCR, guidance or other published policy which regulates the night state. Nor was there, at the material times of the proceedings, a DSO which dealt with the night state.
The Claimants’ starting premise is that because the power to detain administratively is a draconian power, it must be strictly and restrictively construed (B (Algeria v SSHD) ). Further, per Lord Sumption in New London College Ltd v SSHD , domestic public law requires there be “specific statutory authority” for the infringement of personal freedoms.
This argument was rebuffed. Instead, the High Court held that Lord Sumption was referring to a need for specific statutory authorisation in circumstances in which the treatment would otherwise be unlawful on public law grounds. He was not articulating a general common law principle. As such, it is not necessary for every aspect of the immigration detention regime to be laid down in statute. The general statutory provisions in Rules 3 and 39 of the DCR were sufficient to protect against arbitrariness.
The Claimants made a similar argument under the ECHR. In the judgment of the High Court, however, the absence of specific statutory or Home Office rules in relation to the duration or nature of the night state did not breach ECHR Articles 5 or 8 (assuming they were engaged). Drawing on the authorities of Lumba v SSHD  and Gillan and Quinton , it was held that the prescriptiveness of legislation depends upon the subject-matter and the nature of the treatment that is being satisfied. As this case concerned a challenge to aspects of conditions of detention, rather than the rules themselves, neither Article 5 nor 8 required a prescriptive approach. Instead, the management of the night state was a matter of “operational arrangements which must respond to particular circumstances.” 
Issue Two: Did the Defendant unlawfully fetter her discretion by effectively delegating to G4S the decision as regards how long the night state at Brook House should be?
In the submission of the Claimants, by virtue of entering a contract with G4S to run the IRC, the Defendant had fettered her own freedom to exercise her statutory powers. As a result, she had “in effect surrendered and/or abdicated her responsibilities to set the minimum standards and conditions required for a relaxed and humane regime appropriate for administrative detention.” 
This argument was swiftly dismissed by the High Court. Section 153 of the 1999 Act clarifies that the Defendant, not the contractor, has statutory responsibility for the management and regulation of detention centres. This responsibility, moreover, is exercised by the making of the DCR and the DSOs. Additionally, the terms of the contract itself state that the Defendant was not bound by the Contract to defer to G4S’s plans or arrangements in relation to the night state.
Issues 3(a) and (b)
3(a): Was the operation of the night state unlawful because the Brook House night state regime and conditions were not consistent with, and did not meet, or further the object or purpose of, the statutory scheme?
3(b) Was the night state regime at Brook House, and the conditions relating to the toilets, inconsistent with the Defendant’s common law powers and obligations?
This element of the Claimants’ application contested whether the night state and room conditions struck the right balance between freedom of movement and security, as per Rules 3(1) and 39 of the DCR. According to the Defendant, however, the rules in the DCR afford the decision-maker considerable discretion and the Court must concomitantly respect the balance that the Defendant has struck unless it is Wednesbury unreasonable, or the Defendant has otherwise acted unlawfully on public law grounds.
As mentioned previously, Rules 3(1) and 39 of the DCR state that the regime should be as relaxed as possible. Disputing the Defendant’s Wednesbury proposition, the Claimants argued this statutory purpose is “hard-edged” and the issue of whether the regime was consistent with it was an objective question to be determined by the Court.
Cavanagh J commenced his analysis by ascertaining the purpose of the statute under the Padfield jurisdiction. The DCR was explicit in this respect. Pursuant to this, it was necessary to identify whether there is a “rational connection” between the operation of the night state and the purpose of Rules 3 and 39. In the Court’s view, these Rules are not “hard-edged”. Rather they seek to strike a balance “between the requirements of safety and security and good order, on the one hand, and the requirement of a relaxed and humane regime and as much freedom and association as possible, on the other.” 
In the Court’s judgment, the balance struck by the Defendant – in deciding to operate a night state — did not frustrate the statutory purpose. The same was true of the conditions relating to the toilets. On this point, Cavanagh J drew a salient distinction between the sub-optimality of the Defendant’s practices and their legal compatibility with the statutory purpose. This theme runs through the rest of the judgment.
A crucial point informing this decision was the fact that the Claimants did not submit that the night state was inherently unlawful, but instead argued that it was too long (contending that one which was two or three hours shorter, from 11pm to 7am or 8am, would have been lawful). This reinforced the Judge’s conclusion that the decision pertaining to the duration of the night state was an “operational judgement” for the Defendant.
Issue 3(c) Were the Brook House night state regime and conditions (particularly in relation to the toilets) inconsistent with the respect for privacy and human dignity which is required by Articles 5 and 8 of the ECHR?
Was Article 5 engaged?
The High Court first considered whether the combined effect of the night state and the disadvantages of the in-room toilets was within the scope of Article 5. In the submission of the Claimants, the conditions of detention may breach Article 5 if there are “unduly harsh”.
Cavanagh J held that Article 5 was not engaged because the night state was a “further restriction on the liberty of detained persons, rather than a further deprivation of liberty.”  This decision was informed by two authorities regarding conditions of lawful detention.
First, the case of Bollan v UK (2000), which concerned the suicide of the Applicant (without displaying any prior signs of suicidal ideation) after she was locked in her cell for a further two hours, having been disruptive earlier in the day. The ECtHR held this detention fell outside the scope of Article 5(1). It said at CD 349 that:
Generally … disciplinary steps, imposed formally or informally, which have effects on conditions of detention within a prison, cannot be considered as constituting deprivation of liberty.
Second, the case of Munjaz v UK (2012), which concerned the transfer of the Applicant from a prison to a medium secure mental hospital unit, where he was kept secluded for periods at a time. The ECtHR drew the distinction between a further deprivation of liberty, which is within the scope of Article 5(1), and a further restriction upon the liberty of a detained person, which is not (judgment, paragraph 67).
The High Court then considered this issue in the alternative, assessing whether the night state at Brook House might amount to a breach of Article 5, if it was in fact applicable.
For this purpose, special attention was given to the judgement of the Court of Appeal in R (Idira) v Secretary of State , which concerned a TSNFO who was kept in prison and was not transferred to an IRC at the end of his period of imprisonment. The Claimant alleged this constituted arbitrary detention in breach of Article 5(1)(f).
In that case, Lord Dyson MR — applying the guidance of the ECtHR in Saadi v UK  — held that “detention in an inappropriate place and in inappropriate conditions is arbitrary, but this only applies where there is “serious inappropriateness”.” [quoted at 279] In the context of immigration detention, this means the conditions must be “unduly harsh”.
In the judgment of the High Court, the operation of the night state at Brook House, coupled with the conditions relating to the in-room toilets, was not “unduly harsh”. Rather these conditions were merely “sub-optimal”.
Was Article 8 engaged?
Cavanagh J additionally held that Article 8 was not engaged in this case. The key authority supporting this decision was R (Akbar) v Secretary of State for Justice . This was a judicial review claim brought by a foreign national prisoner who complained about a rule that life prisoners could not be transferred to open conditions if they were subject to a deportation order and were appeal-rights exhausted. In relation to Article 8, the Divisional Court held that if an individual is already lawfully detained, they must establish the infringement of “some discrete family life or private life interest” .
This case, among others, distinguishes between restrictions and limitations which are “ordinarily” consequent on prison life, on the one hand, and restrictions which go further than that, on the other. In the case of Brook House, and all detention centres, a night state is “part of the normal rhythm of life.”  The Claimants’ case on this ground was therefore dismissed.
Issue (4) – the failure to publish clear and precise criteria for allocation to detention centres
In the Claimants’ submission, the failure to give reasons for the allocation of the Claimants to Brook House, and their inability to make representations in this regard, prejudiced their interests because the IRC’s environment and regime is akin to a Category B prison, and they have to share the centre with TSNFOs and other “difficult” detainees.
The challenge was based on the contention that there was a breach of common law principles of procedural fairness in relation to allocation. The High Court rejected this argument for four reasons.
First, the Court did not accept that the difference in conditions at various IRCs is sufficient to require giving a detainee a say as to which IRC they should be placed in.
Second, “the nature of the considerations that must be taken into account in making the allocation decision does not make it suitable to have a consultation process grafted onto it.” 
Third, the high proportion of TSNFOs detained at Brook House is “not something which gives rise to an obligation to give the opportunity to detainees to make representations.” Rather it was held plainly reasonable to have a mixture of “difficult” and “ordinary” detainees. 
Fourth, under the present rules, detainees are able to request a transfer if they think there is a good reason for it.
Issue (5) – were the conditions at Brook House religiously discriminatory?
As part of their case, two of the Claimants contended that
they were obliged to perform prayers during the night state in their rooms, close to the toilet, and that this impeded their religious observance as practising Muslims, and interfered with their right to practise their religion. They contended that the Defendant infringed their rights under ECHR, Article 9, discriminated against them in breach of Article 14, when read with Article 9, and indirectly discriminated against them on the ground of their religion in breach of EA 10, section 29(6). 
Importantly, as with the challenge in relation to the room conditions, the Claimants submitted that if the night state had lasted 8 hours, from 11pm to 7am, rather than 11 hours, it would have been lawful. This alternative timeframe would have allowed observant Muslims to conduct all five of their daily prayers outside their bedrooms in winter, and four of them during the summer period.
The reports of religious experts were considered. The main question was whether the room conditions rendered the premises “unclean” and therefore unfit for prayer. As noted previously, following the judgment in Hussain and Rahman, the Defendant carried out an Equality Impact Assessment in December 2018, which considered the impact of the night state on a range of protected characteristics, including religious belief and observance.
That report found the night state to be justified on safety grounds. It concluded that while this arrangement can “disproportionately impact religions with more prescriptive rituals”, the IRC’s reasonable adjustments, which included ensuring access to Imams and providing religious facilities, enabled Muslims detainees to fulfil their religious obligations from inside their rooms.
Cavanagh J stipulated that he was not bound by Holman J’s prima facie finding of interference with Article 9, because the evidence before him was much greater than that considered in the prior case.
A breach of Article 9?
Article 9 imposes a positive duty on the Defendant to take reasonable and appropriate measures to secure the Claimant’s rights. One’s right to practise one’s religion under Article 9(1), however, is not breached in every case in which the circumstances in which an individual can practice their religion are sub-optimal (Kovalkovs v Latvia ).
In the Court’s judgment,
The interferences resulting from having to pray during night state in a shared room, and in close proximity to the toilets, did not completely prevent Muslim detainees from manifesting their religion, or go against the very essence of their freedom to do so. 
Furthermore, while the expert evidence clarified that it was discouraged in Islam to pray near a toilet, it was not in the Judge’s understanding that this “completely invalidated and rendered nugatory the prayers of a believer.” 
For instance, detainees could wait for smells to dissipate (a dubious proposition considering Brook House has no windows) or take it in turns to pray to share the room space. Additionally, given that the Claimants agreed that it was acceptable under Article 9(1) for one daily prayer to be performed in the detainee’s room during the night state, notwithstanding the conditions, it was held that it was “hard to see” why the same principle could not justify extra prayers in the same conditions .
Viewed alternatively, even if there was an interference with the Defendant’s rights under Article 9(1), it was held that any such interference could be justified under Article 9(2) – in the interests of public safety.
A breach of Article 14?
There was held to be no breach of Article 14, when read with Article 9.
It was common ground between the parties that the only issue was whether the prima facie discriminatory treatment was objectively and reasonably justified, in the sense that it pursued a legitimate aim, and there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised (Eweida v United Kingdom ).
The High Court held that the night state pursued a legitimate aim. The means chosen were also proportionate, insofar as the aim would not be achievable if Muslim detainees were exempted from the night state. A shorter night state at Brook House would not have changed this proportionality analysis. The Court found that Muslim detainees were not singled out to be treated differently from other detainees. The fact that in-room toilets had benefits meant that “this was not of itself something that made the treatment in general, or of Muslim detainees, unreasonable or unlawful.” 
Indirect religious discrimination contrary to EA 10
For the same reasons that there was no breach of Article 14, there was no breach of EA 10.
This judgement is likely to be significant on a policy level. In rejecting the Claimants’ application in its entirety, the judgment is likely to be relied on by the Home Office as justification for refusing any future liberalisation of IRC conditions. It might further serve as a pretext for the downgrading of conditions at other IRCs across the Home Office estate.
From a legal perspective, Cavanagh J’s approach to the issue of religious discrimination is questionable. Despite acknowledging the significant obstacles posed to the prayer routines of Muslim detainees, he maintained there was no interference with the Claimants’ rights under Article 9(1) because their ability to pray had not been “completely prevent[ed]”.
In reaching this decision, he applied the test from Kovalkovs, which concerned the limitations placed upon a Hare Krishna adherent in being made to pray and read religious literature in his prison cell. There is arguably a pertinent difference between the cases. In Kovalkovs, the Court seems mainly to rely on the argument that since the Applicant did not make use of the authorities’ offer to pray in another room, the interference with the Applicant’s right was not disproportionate. This is surely distinguished from the Claimants’ situation where another venue was not available during the night state.
According to the High Court’s logic, the sincerity of religious expression is to be measured against the somewhat crude standard of physical possibility. Of course, it would not be reasonable for the court to adopt an overtly subjective approach to the assessment of spiritual need. Nevertheless, the fact the Court went so far as to consider the intensity of toilet odours in its evaluation of the Claimants’ capacity to pray, testifies to the ambiguity inherent in this context. Future discrimination claims surely lie in wait.
Sapan Maini-Thompson is training to become a barrister specialising in criminal, public and human rights law. He tweets @SapanMaini