R (Hussain and Rahman) v Secretary of State for the Home Department

This judicial review concerned whether the regime and conditions at Brook House immigration removal centre interfered with detained Muslims' Article 9 rights to manifest religion and amounted to indirect discrimination under Article 14 and the Equality Act 2010 (section 19). The court held Article 9 to be engaged because the combination of the long night-state lock-in, room-sharing and in-room unclosed lavatories forced observant Muslims to pray in circumstances that the evidence (including an Imam's statement) described as "highly discouraged" in the religion. The court found indirect discrimination and that the Secretary of State had admitted failure to have due regard to the public sector equality duty in section 149 of the Equality Act 2010.

The court refused to permit broad fact‑intensive challenges but granted permission on limited legal grounds (grounds V–VII for both claimants and ground VIII for Mr Rahman). It declared that no justification for the discrimination has yet been shown and made declaratory relief that the SSHD had failed to discharge the section 149 duty. Separately, the court held that permitting smoking in enclosed detainee rooms was unlawful under the Health Act 2006 and accompanying regulations and declared Detention Services Order 2/2014 unlawful insofar as it purports to permit smoking in private IRCs.

Background and parties: Two Muslim male detainees (the claimants) brought rolled-up applications for permission and substantive judicial review against the Secretary of State for the Home Department (SSHD) challenging conditions at Brook House IRC run by G4S. They alleged interference with religious observance (prayer) caused by the night-state lock-in (9.00pm–8.00am), sharing of rooms (including three-bedded rooms), and presence of unclosed lavatory cubicles in rooms. Mr Rahman additionally challenged the lawfulness of permitting smoking in detainee rooms.

Procedural posture: The claims were listed for an expedited two-day rolled-up hearing. The judge exercised case management discretion to limit permission to the most legally tractable grounds and refused permission on other wide-ranging, fact-intensive grounds.

Issues framed by the court:

• Whether Article 9 ECHR was engaged and whether there was an interference with the freedom to manifest religion.
• Whether Article 14 ECHR and section 19 Equality Act 2010 were engaged because the regime had a differential effect on practising Muslims (indirect discrimination).
• Whether the SSHD had discharged the public sector equality duty under section 149 Equality Act 2010 and whether any discrimination could be justified.
• Whether permitting smoking in enclosed detainee rooms complied with the Health Act 2006 and the Smoke-free (Exemptions and Vehicles) Regulations 2007; and whether DSO 2/2014 lawfully authorised an exemption for IRCs.

Court's reasoning and findings:

• The court accepted, on the evidence before it (including an Imam's statement), that observant Muslims were required to perform prayers (notably Fajr, Maghrib and sometimes Isha) which fell within the night-state; confinement forced them to conduct prayers in shared rooms close to exposed lavatories. The court found Article 9 engaged and held there was an actual interference (not merely de minimis).
• Because the impact was greater on practising Muslims, Article 14 was engaged and the facts gave rise to indirect discrimination under section 19 of the Equality Act 2010.
• The SSHD conceded that she had not had due regard to the public sector equality duty in section 149. Applying the approach in the authorities cited in the judgment, the court held that because the SSHD had not properly considered the impacts or possible mitigations, she could not at this stage demonstrate justification; the court therefore made declarations to that effect but declined to make mandatory orders compelling discharge of the duty within a fixed short time.
• On the smoking issue the court held that Brook House was not Crown premises for the purpose of the Health Act 2006 point raised, that the Smoke-free Regulations did not treat IRC rooms as private dwellings, and therefore enclosed detainee rooms must be smoke-free. The practice permitting smoking in such rooms and the relevant parts of DSO 2/2014 insofar as they permit smoking in private IRCs were declared unlawful.

Relief and subsidiary findings: Permission was granted on specified grounds (V–VII for both claimants and VIII for Mr Rahman). Declarations were made that the SSHD had breached section 149; that the lock-in regime with unclosed lavatories and shared rooms constituted indirect discrimination under Article 9/14 and section 19 unless justified and that no such justification has yet been shown; that permitting smoking in enclosed detainee rooms was unlawful; and that DSO 2/2014 is unlawful insofar as it applies to private IRCs. The court refused broader permission due to the extensive factual disputes and case-management considerations.

First-instance judgment: the court granted permission limited to specified grounds (grounds V, VI and VII for both claimants and ground VIII for Mr Rahman) and refused permission on other grounds as a case-management decision. The court held Article 9 ECHR was engaged and that the combination of the night-state, shared rooms and in-room unclosed lavatories interfered with the right to manifest religion and gave rise to indirect discrimination under Article 14 and section 19 Equality Act 2010. The SSHD had admitted failure to have due regard to the section 149 public sector equality duty and the court declared that no justification had yet been shown; it declined to order a mandatory timetable for compliance. The court also held that permitting smoking in enclosed detainee rooms was unlawful under the Health Act 2006 and associated regulations and declared DSO 2/2014 unlawful insofar as it applies to private IRCs.