Soltany & Ors, R (On the Application Of) v Secretary of State for the Home Department

The absence of detailed statutory or departmental rules governing night state in an immigration removal centre does not, by itself, breach legal-certainty requirements. General provisions requiring secure but humane accommodation, maximum feasible freedom, and no more restriction than necessary may provide sufficient legal underpinning. The court must identify the statutory purpose and ask whether the regime frustrates it or lacks a rational connection with it; it must not substitute its own preferred operational balance. An overnight lock-in is ordinarily a restriction incidental to lawful detention, not a further deprivation of liberty under Article 5. Article 8 requires a fact-sensitive assessment, but ordinary night-state arrangements and the conditions considered here did not engage it. Prima facie indirect religious discrimination was justified: the regime pursued safety and quiet, remained proportionate, and did not prevent Muslim detainees from praying.

Three Afghan nationals sought judicial review of conditions at Brook House Immigration Removal Centre in 2017 and 2018. They challenged the 9pm–8am night state, shared rooms, in-room toilets, ventilation, cleanliness, headcount lock-ins, allocation procedures, and the effect of those conditions on Muslim religious observance. The first two claimants’ religious-discrimination issues followed earlier proceedings in R (Hussain and Rahman) v Secretary of State for the Home Department, in which prima facie discrimination had been found but justification had not been decided. The court determined the legality of the regime under domestic public law, Articles 5, 8, 9 and 14 ECHR, and the Equality Act 2010.

1. Legal certainty. The absence of specific statutory provisions or Home Office policy prescribing the existence or duration of night state did not breach domestic law or Articles 5 or 8. The challenge concerned conditions of detention, rather than the statutory power to detain. Rules 3, 15 and 39 of the Detention Centre Rules 2001 supplied sufficient legal standards. The arrangements were neither arbitrary nor secret, and detainees could challenge them through legal proceedings.
2. Discretion and contract. The Secretary of State had not unlawfully fettered her discretion by accepting G4S’s tender. Sections 148, 149 and 153 of the Immigration and Asylum Act 1999 preserved ministerial responsibility, while the contract allowed the Secretary of State to alter operational requirements and required compliance with legislation and the Rules.
3. Statutory purpose and irrationality. Rules 3 and 39 required a balance between security, safety and good order and a relaxed, humane regime with as much freedom and association as possible. The court’s task was to ask whether the regime frustrated that purpose or lacked a rational connection with it, not to substitute its own operational judgment. The 11-hour night state, in-room toilets and headcount lock-ins were rationally connected with safety, security, quiet and orderly operation. They were sub-optimal but not unlawful or irrational.
4. Articles 5 and 8. Applying Bollan v United Kingdom, Munjaz v United Kingdom and R (Idira) v Secretary of State, night state was a further restriction incidental to lawful detention, not a further deprivation of liberty. The conditions were not seriously inappropriate or unduly harsh. Nor did the ordinary night-state regime or toilet arrangements amount to an Article 8 interference.
5. Allocation. The allocation process was not reasonably arguable as procedurally unfair or contrary to Article 5. Operational allocation, risk assessment, reception screening and transfer requests provided adequate safeguards; fairness did not require consultation or publication of a fixed list of allocation criteria.
6. Religion and discrimination. The court accepted that Article 9 was engaged and that prima facie indirect discrimination existed. However, reasonable facilities and adjustments enabled Muslim detainees to pray. Any interference was justified under Article 9(2). Applying the proportionality test in R (Tigere) v Secretary of State for Business, Innovation and Skills, the night state pursued a legitimate aim, was rationally connected to it, and struck a fair balance under Article 14 and section 19 of the Equality Act 2010.
7. The renewed application for permission on allocation was refused. The remaining judicial-review claims were dismissed.

First-instance judicial review decision. The judgment records that permission on the allocation ground had previously been refused on the papers by Martin Spencer J, while permission had been granted on the other grounds.