R (Soltany & Others) v Secretary of State for the Home Department

The claimants challenged the lawfulness of the Brook House "night state" (lock-in from 21:00 to 08:00) and associated in-room sanitary arrangements on numerous public law and human rights grounds, and sought relief including declarations and damages for breaches of the European Convention on Human Rights and the Equality Act 2010. Key domestic sources relied on included the Detention Centre Rules 2001 (rules 3, 15 and 39) and the contractual arrangements under which G4S ran Brook House. The claimants also renewed an allocation ground (challenge to absence of published allocation criteria).

The court found disputed factual matters but made findings on the balance of probabilities: Brook House had in-room toilets separated by a concrete partition and (intended) curtains; curtains were often missing or poorly attached during the relevant periods; some rooms were temporarily three-person rooms in 2017; ventilation and cleaning were imperfect though within certified standards; detainees were locked in for headcounts twice daily and during the night state.

On the legal issues the court held that (i) the absence, before late 2018, of a specific statutory provision prescribing a night state did not render the night state unlawful: the Detention Centre Rules provided adequate legal underpinning and Articles 5 and 8 were not breached on grounds of legal certainty; (ii) there was no unlawful fettering of the Secretary of State’s discretion by the contract with G4S; (iii) the night state and associated conditions did not frustrate the statutory purpose in rules 3 and 39 nor were they irrational in Wednesbury terms; (iv) the conditions did not amount to a further deprivation of liberty within Article 5 and, in any event, were not so "unduly harsh" as to be arbitrary; (v) Article 8 was not engaged in a way that established a violation, and the sanitary arrangements did not meet the threshold for an Article 8 breach; (vi) the allocation challenge was not reasonably arguable and permission was refused; and (vii) insofar as Article 9, Article 14 and section 19 EA 2010 were engaged (Holman J had earlier found prima facie discrimination), the Secretary of State's subsequent Policy Equality Statement and the operational explanations provided a lawful and proportionate justification so the discrimination was justified. The claim was dismissed.

This judicial review concerned three former detainees at Brook House Immigration Removal Centre who challenged the conditions of detention and the Home Office's policies and decisions relevant to their placement and treatment. The claimants alleged that Brook House operated an unnecessarily restrictive and prolonged "night state" (21:00–08:00), that some detainees were housed in three-person rooms, that in-room toilets were inadequately screened, unsanitary and lacked lids or seats, and that the combination of lock-in and sanitary arrangements interfered with privacy, dignity and, for Muslim detainees, the ability to observe prayers.

• Parties and representation: Claimants represented by counsel instructed by Duncan Lewis; Secretary of State represented by Government Legal Department; G4S was an interested party.
• Procedural posture: First-instance judicial review in the Administrative Court. Certain related proceedings (R (Hussain and Rahman) v SSHD) had earlier proceeded to a rolled-up hearing and Holman J had found prima facie indirect religious discrimination and required an equality assessment. The Secretary of State carried out a Policy Equality Statement (PES) in December 2018. The claimants sought declarations, damages under the Human Rights Act and Convention Articles, and mandatory relief (not pressed at final hearing).
• Issues the court decided: (i) Whether night state was lawful and had adequate statutory or lawful policy basis under the Detention Centre Rules and ECHR Articles 5 and 8; (ii) whether the Secretary of State unlawfully fettered her discretion by contractually adopting G4S’s proposed night-state hours; (iii) whether the night state and in-room sanitary arrangements were incompatible with the statutory purpose (DCR rules 3 and 39) or with the Secretary of State’s common law duties; (iv) whether allocation processes to Brook House required publication of criteria or a right to make representations; and (v) whether the combined effect of the night state and sanitary arrangements amounted to an unjustified interference with Article 9 or indirect discrimination under Article 14/EqA 2010 s19.
• Court’s reasoning in brief: The court accepted that the DCR set a clear general statutory framework (secure but humane accommodation, as much freedom as possible consistent with safety) and that night state is an operational measure within that framework. The absence, prior to DSO 04/2018, of centralised Home Office policy prescribing night state hours did not render the practice arbitrary as required by Article 5 or 8; the DCR plus contractual and oversight mechanisms provided adequate legal certainty. The Secretary of State had not unlawfully fettered her discretion: the contract did not remove her statutory powers and the evidence did not show she treated the contractor’s proposal as binding. On proportionality and rationality the court found a lawful balancing exercise between security and welfare; the 11-hour night state in the factual matrix did not amount to an irrational or disproportionate interference. The court treated the allocation ground as not reasonably arguable (dismissed on permission). With respect to religious complaints, the court accepted Article 9 engagement but held that the measures taken (chaplaincy provision, prayer mats, ablution jugs, ability to seek a change of room, and the PES justification) showed the interference was justified or that reasonable adjustments had been made; indirect discrimination under Article 14/EA 2010 was not made out on proportionality grounds.

The court dismissed the claims and refused renewed permission on allocation. The judgment records factual disputes about missing curtains, cleanliness, three-person rooms in 2017, and ventilation but concludes that, on the balance of probabilities and applying appropriate standards of review and ECHR proportionality analysis, the Secretary of State’s conduct and the regime in the periods complained of were not unlawful.

The claim is dismissed. The court held that: (1) an 11‑hour "night state" with detainees locked in rooms containing in-room toilets was not unlawful for want of a specific statutory prescription because the Detention Centre Rules and contractual/oversight framework provided adequate legal certainty; (2) the Secretary of State had not unlawfully fettered her discretion by the contract with G4S; (3) the night state and associated conditions did not frustrate the statutory purpose in rules 3 and 39 of the DCR and were not irrational; (4) the conditions did not amount to a further deprivation of liberty under Article 5 nor to an Article 8 breach on the facts found; (5) the allocation challenge was not reasonably arguable and permission was refused; and (6) although Article 9 and anti‑discrimination issues were engaged, the Secretary of State had provided an objective and proportionate justification (including the December 2018 Policy Equality Statement) and no unlawful indirect discrimination was made out.