On 1 February 2018, the High Court decided that the Home Secretary had discriminated against two Muslim men as a result of conditions at Brook House Immigration Removal Centre. For the immediate reaction to this case, this news piece by the BBC is worth reading, but we have only just received a full written judgment to analyse. It is Hussein v Secretary of State for the Home Department & Anor [2018] EWHC 213 (Admin).

Brook House is no stranger to controversies regarding treatment of detainees. Lewis Kett of Duncan Lewis, the firm that represented the claimants in this case, hopes that the decision will lead to a relaxation of the lock-in regime at Brook House and other detention centres. We can but hope.

The Brook House regime

The men were free to roam Brook House by day, but between 9pm and 8am, like all detainees, they were locked in their rooms.

Each room is 3m x 4m, has three beds and a toilet in the corner, screened off by partitions which are not floor-to-ceiling and without ventilation or a door. Instead, there is a curtain fixed by velcro. The macabre reason for this is to avoid suicides on the door-frame.

The two men, as devout Muslims, pray five times a day. Problematically, the dawn prayer is always during locked-in hours, while the sunset and late night prayers are during locked-in hours during the summer.

One of the two claimants, Mr Hussein, had this to say regarding the effect that the smell from the toilets had on his ability to pray during locked-in hours: “I find it very upsetting that I have to offer prayer in the smelly dirty cell at times of lock-in, as this distracts me from my prayer”.

The other claimant, Mr Rahman, added that “you cannot properly follow Islam with a toilet in the room in which you pray”.

Unlawful discrimination against Muslims

The Secretary of State simply had not considered the effect of the lock-in combined with the cell layout on Muslim detainees. In these circumstances, the High Court decided that unless and until she scrutinised its effects and provided justification for the discrimination, it was and would remain unlawful.

The decision was made under both domestic and European law:

1. failure to have due regard to the need to eliminate discrimination under section 149 of the Equality Act 2010; and
2. discrimination with regard to the freedom to practise a religion under Article 9 read together with Article 14 of the European Convention on Human Rights.

The High Court additionally declared that the practice and policy of permitting smoking in cells and other enclosed spaces in the centre is unlawful. This turned on the specific terms of the Health Act 2006 and will not be explored further in this article.

Equality Act 2010

Indirect discrimination on the ground of religion occurs when a state of affairs has an adverse impact on members of one religion which is greater than that of another religion, without there being any specific targeting of members of the religion who are impacted. Indirect discrimination on grounds of religion, if not objectively justified, is a breach of section 19 of the Equality Act 2010.

Because Muslims must pray while they are locked in their cells, yet members of other faiths have no such requirement, the measures have a discriminatory effect on Muslims, and so must be justified if they are not to violate section 19.

The public sector equality duty in section 149 of the Equality Act 2010 was also relevant. This duty is a “heavy” one, requiring the following (taken from paragraph 26 of Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345):

i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters;

ii) The duty must be fulfilled before and at the time when a particular policy is being considered;

iii) The duty must be “exercised in substance, with rigour, and with an open mind”. It is not a question of “ticking boxes”; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;

iv) The duty is non-delegable; and

v) Is a continuing one.

vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.

It was therefore insufficient that the Secretary of State attempted to explain the measures after the fact in court. Mr Justice Holman stated that post-facto justification simply does not cut it:

The blunt truth and reality is that the SSHD has never previously thought about the differential discriminatory effect upon practising Muslims of the combination of their required times of prayer, the night state, the unclosed lavatories and the shared rooms. It may in the end be justifiable, but, as already indicated, there may be a range of steps which the SSHD may be able to take to mitigate or avoid it. Unless and until she, who is the policymaker, has fully and conscientiously considered those steps (and others) and thought this whole problem through, I am quite unable to hold, meantime, that it is justified.

It is hard to overstate the importance to society of this demanding duty on public bodies to fully consider how to mitigate and avoid discrimination before justification is possible. The available alternatives have to be carefully considered and rejected. It is this which turned the case.

Article 9 read with Article 14 of the European Convention on Human Rights

Crucial to the Article 9 (freedom of thought, conscience and religion) argument was the evidence of the Imam and Head of Religious Affairs at Brook House. He said that praying near a toilet is “highly discouraged in Islam”, and only allowed in “extreme circumstances”. The evidence of the claimants that the smell was so significant that it distracted them from their prayers was also significant.

Once Article 9 was engaged, Article 14 (prohibition of discrimination) kicked in because, as established above, the facts disclosed indirect discrimination. As there was no justification for that discrimination, then it is an ongoing breach. Perhaps importantly for future cases, Mr Justice Holman noted:

It is true that section 149 is not part of the Convention, but even under the Convention a minister who has not thought properly or at all about discrimination is unlikely to be able to justify it until he has done so.

This may give scope in future cases to make an argument for an interpretation of the requirement of the executive to justify discrimination under Article 14 roughly in line with section 149 Equality Act 2010.

Conclusions

This case is helpful for practitioners undertaking religious discrimination claims, and well as a step in the right direction on the treatment of detainees in immigration removal centres. In the short term, the government should change the set-up at Brook House to allow the many Muslims detained there to pray in conditions fit for worship.