Hussein v Secretary of State for the Home Department & Anor

A detention regime may interfere with Article 9 where its practical effect requires detainees to practise their religion in conditions contrary to its observance. The combination of prayer times, night-time confinement, shared rooms and exposed lavatories engaged Article 9 and constituted indirect religious discrimination under Article 14 and section 19 of the Equality Act 2010, subject to justification.

A public authority which has failed to discharge the continuing public sector equality duty under section 149 may be unable to demonstrate justification until it has conscientiously considered the discriminatory impact and possible mitigation. Enclosed areas of a privately operated immigration removal centre were subject to the Health Act 2006. The statutory exemptions did not cover detainees’ shared rooms, so permitting smoking there was unlawful.

Two former detainees at Brook House immigration removal centre sought judicial review of the detention regime. They alleged that night-time confinement, shared rooms and unclosed in-room lavatories interfered with Muslim prayer and indirectly discriminated against practising Muslims. One claimant also challenged the permission given to detainees to smoke in enclosed rooms.

The Secretary of State accepted that she had failed to discharge the public sector equality duty under section 149 of the Equality Act 2010. The central issues were whether the religious conditions engaged Articles 9 and 14 of the Convention, whether the discrimination had been justified, and whether the smoking policy was permitted by the Health Act 2006 and the Smoke-free (Exemptions and Vehicles) Regulations 2007.

1. Religious observance. The combination of compulsory prayer times, the 9 pm to 8 am night state, shared rooms and unclosed lavatories engaged Article 9 and constituted an actual interference with the claimants’ freedom to manifest their religion. The interference went beyond the de minimis threshold, although the court deliberately made no finding about its severity.
2. Discrimination and justification. The regime had a greater and discriminatory impact on practising Muslims than on detainees of other faiths or of no faith. It therefore engaged Article 14 and amounted to indirect discrimination under section 19 of the Equality Act 2010, unless justified as a proportionate means of achieving a legitimate aim.
3. Equality duty. The Secretary of State had failed to have due regard to the need to eliminate discrimination under section 149. The duty was non-delegable, continuing and heavy. Following the approach in Coll v Secretary of State for Justice [2017] UKSC 40, the failure meant that the Secretary of State could not then demonstrate justification. This was not an absolute rule that justification can never be considered after a failure to comply with section 149; rather, proper consideration was required before justification could realistically be established.
4. Smoking. The Health Act 2006 applied to Brook House. The fact that the Crown appeared in one link in the lease chain did not make the privately operated centre Crown premises. The Smoke-free (Exemptions and Vehicles) Regulations 2007 made express provision for prisons but not immigration removal centres. Detainees’ shared rooms were not private dwellings. All enclosed or substantially enclosed areas, including those rooms, were therefore smoke-free.
5. Orders. The court declared the religious regime unlawful unless justified, declared the section 149 breach, declared the smoking policy unlawful, and declared Detention Services Order 2/2014 unlawful insofar as it applied to Brook House or other private immigration removal centres. Permission was refused on the remaining grounds and no mandatory order was made.

First-instance judicial review decision. No prior appellate decision is stated in the judgment.