The High Court has refused a challenge to the conditions at Brook House Immigration Removal Centre in 2017 on all grounds. This is despite the Home Office having made a number of changes to the regime provided by G4S since then in response to criticism. The decision in R (Soltany) v Secretary of State for the Home Department [2020] EWHC 2291 (Admin) is a frustrating step back for the campaign for better conditions in immigration detention and is likely to be relied upon by the Home Office to resist any further improvements in detention conditions.

Background: immigration detention conditions

The decision runs to over 400 paragraphs and deals with a wide range of legal arguments, but the underlying facts are fairly straightforward. In 2017 there were serious problems at Brook House, including racially motivated ill-treatment of detainees. This led the High Court to order a public inquiry (which opened earlier this year but has been delayed by the coronavirus crisis).

One of the problems was that an extra bed had been added to 60 rooms in the centre, turning rooms which had been designed for two detainees into three-bed cells. This exacerbated existing problems for detainee welfare caused by having toilets in rooms which either had no door or a flimsy curtain. From 9pm to 8am, detainees were locked in their rooms and forced to put up with the sounds and smells of the toilet; a particular problem for Muslim detainees who had to pray in their rooms during this time.

This case is not the first time the High Court has had to consider these issues. In Hussein v Secretary of State for the Home Department [2018] EWHC 213 (Admin), Mr Justice Holman ruled that these conditions interfered with Article 9 of the European Convention on Human Rights (ECHR), but refused to rule that there was an outright breach of Article 9 on the grounds that the Home Secretary had not yet complied with her Public Sector Equality Duty and considered the justification. One might question whether it was appropriate to refuse to rule conclusively on the issue as requested by the claimants, but at least Holman J’s judgment was in the right direction.

TLDR: Home Office wins

In the present case, Cavanagh J ruled in favour of the Home Office on every issue, even deciding that he was better placed than Holman J to consider the Article 9 point and concluding that the conditions did not even amount to an interference with detainees’ right to religious expression. The writing was on the wall early on in the judgment where the judge directed himself:

Where there is clear and incontrovertible evidence in support of contentions made on behalf of the Claimants, I have accepted it. Where there is an outright dispute between the parties, I have accepted the Defendant’s evidence, unless it is internally contradictory, implausible, or inconsistent with other incontrovertible evidence.

The claimants made a large number of arguments and it is not possible to do justice to all of them here, so I focus on two areas in which Cavanagh J was especially harsh.

The Article 5 issue

The claimants argued that the overnight lock-in, overcrowded rooms and toilet situation breached Article 5 ECHR (the right to “liberty and security”). The judge relied on the Court of Appeal decision in Idira [2015] EWCA Civ 1187 to reject this argument. But while that test set out in that case (that the conditions must be unduly harsh to be arbitrary and breach Article 5) is obviously applicable, the judge arguably erred by following the findings of fact made by the Court of Appeal.

Idira was about allocation between prisons and IRCs and pre-dated the collapse in standards at Brook House by 2017. The court did not consider IRC conditions in the same level of detail as Cavanagh J was able to do here, and Mr Idira was a time-served foreign national offender facing deportation, which is a relevant circumstance when considering whether detention conditions are arbitrary. Nonetheless, the judge ruled:

the operation of the night state at Brook House, coupled with the conditions relating to the in-room toilets, was not “unduly harsh” in the sense that this phrase was used by the Court of Appeal in Idira. These conditions were sub-optimal, and were not the most appropriate conditions that could have been provided for immigration detainees, but this does not mean that they were unduly harsh. If the holding of detainees in prison conditions was not, prima facie, unduly harsh for the purposes of Article 5(1), then the holding of detainees in a more relaxed regime at Brook House was not unduly harsh, even though they were locked in their rooms for 11 hours overnight.

The judge really should have considered the matter afresh.

The Article 9 issue

The most surprising aspect of the judgment is the approach taken to Article 9. It seems obvious that being forced to pray next to a toilet (in rooms occupied by three Muslim detainees, one person’s prayer mat would even extend into the toilet cubicle) engages freedom of religion rights. There might be arguments both ways about whether this state of affairs could be justified, but surely there could be little disagreement about whether Article 9 is actually engaged here.

Instead of accepting this, Cavanagh J took a highly sceptical approach to expert evidence about praying in such conditions. The judge said:

The expert evidence, and that of Mr Qayum, made clear that it is highly discouraged in Islam that the place of prayer is near a toilet, and that it is important that, whilst praying, believers should avoid being distracted by matters such as strong and unpleasant odours and loud noises. However, I did not understand the expert evidence, even that from Professor Haleem, to mean that the proximity of a toilet completely invalidated and rendered nugatory the prayers of a believer. If it is unavoidable, it is permissible to pray near to a toilet, and this was unavoidable for those who were detained at Brook House. It was not a matter for their personal choice, for which they could be criticised.

He went on to suggest that prayer could simply be abandoned if the detainee’s roommate chose or found it necessary to use the toilet while a Muslim detainee was praying:

if a roommate chose to use the toilet whilst a Muslim detainee was praying, or if there were particularly strong odours emanating from the toilet, the Muslim detainee could pause in his prayers until the roommate had finished and/or the worst of the odours had dissipated.

It should be noted that, as the judgment confirms, windows at Brook House are barred shut.

The judge’s conclusion that Article 9 would not be engaged in such circumstances verges on the absurd. Claims of this nature with a large number of legal arguments are challenging for judges, and by this point the judge had written 370 paragraphs so deserves some sympathy, but it will be difficult for the Home Office to defend his conclusion in a further appeal.