The claimants were represented by Stephanie Harrison QC, Raza Halim and Stephen Simblet and instructed by Duncan Lewis Public Law.
The Court held that Muslims were “forced to worship in “extreme circumstances” which are “highly undesirable, and that “Patently the Secretary of State put Muslims at a particular disadvantage”. The Court recognised how Muslim worship could be “degraded” because of where detainees are forced to pray near open, recently used toilet pans in small cells.
The High Court judgment was handed down on immigration detention conditions on 1 February 2018, at the Royal Court of Justice (court 49).
Mr Justice Holman found that the Secretary of State for the Home Department (SSHD) has failed to consider how conditions in Brook House Immigration Removal Centre (IRC) might discriminate against Muslim detainees who were forced to pray next to uncovered toilets.
Mr Justice Holman also found the SSHD’s approach to allow smoking in Brook House was “unlawful” and that she was guilty of seeking to use “euphemism” in her policy "in order to evade the law”.
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.
Raza Halim of Garden Court Chambers said:
“Religion and prayer provide unique solace to many far from home because of war or persecution. It is particularly profound in the circumstances of a detention that you cannot understand. It is further striking that the Secretary of State not only knew that it was unlawful to permit smoking in Brook House, but created a policy to make sure that the law was broken."
See further coverage on the BBC website.
Conditions for Muslim Detainees
Holman J told that court :
“I accept that adherence not only of Islam but of other faiths could feel degrading at having to pray within three metres of an exposed and open lavatory pan, where there are no seats or lids, especially one which has recently been used by other people.”
The High Court found that the SSHD has interfered with the rights, under the European Convention of Human Rights, of Muslim detainees to properly observe prayer, a fundamental pillar of Islamic faith. This interference was held to constitute “indirect indiscrimination” which is “unlawful unless justified”; Holman J made clear that the SSHD had yet to provide any justification for that interference and discrimination.
The High Court Judge ruled that the SSHD has failed “to have any regard” in her public sector equality duty (PSED) (under s.149 of the Equality Act 2010) to conduct an assessment (prescribed by legislation), which compels 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 prayers within their cells, where they must pray next to an open toilet pan that is dirty and may have recently been used. The HM Chief Inspectorate of Prisons (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, and quoted by Holman J in his judgment, indicated that prayer in such conditions is “highly discouraged” in Islam, only to be carried out “in extreme circumstances.”
The High Court found that, for over ten years, the Home Office has contravened the smoking and ordered, through policy documents, management at immigration detention centres to so do. 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 but nevertheless determined to take a “pragmatic approach” which allowed detainees to smoke. The Court has held that the Secretary of State had sought to use "euphemism in order to knowingly evade the law.”
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.