Nemat Soltany v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh |
| Judgment Date | 21 August 2020 |
| Neutral Citation | [2020] EWHC 2291 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/5146/2017, CO/5004/2017 and CO/678/2019 |
| Date | 21 August 2020 |
The Queen, on the application of
and
[2020] EWHC 2291 (Admin)
Mr Justice Cavanagh
Case Nos: CO/5146/2017, CO/5004/2017 and CO/678/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephanie Harrison QC, Raza Halim, and David Sellwood (instructed by Duncan Lewis) for the Claimants
Thomas Roe QC and Hafsah Masood (instructed by Government Legal Department) for the Defendant
Scott Matthewson (instructed by BLM) for the Interested Party
Hearing dates: 23–25 June, and 1 July 2020.
Approved Judgment
Introduction
In this claim for judicial review, the Claimants contend that the conditions in which they were held at Brook House Immigration Removal Centre (“Brook House”), near Gatwick Airport, were unlawful, on a number of cumulative and alternative grounds. At the material times, in 2017 and 2018, Brook House was being run by G4S, pursuant to a contract between G4S and the Defendant. This contract was awarded following a procurement exercise in 2007–8.
The focus of the Claimants' challenge is upon the following aspects of the regime at Brook House:
(1) A lock-in or lock-down regime was operated at Brook House, known officially as the “night state”, pursuant to which detainees were locked in their rooms overnight from 9pm to 8am. This was a longer and more restrictive lock-in period than was operated at some other IRCs, and the Claimants say that this was unnecessary and unduly harsh;
(2) For at least some of their periods of detention, two of the Claimants, Mr Soltany and Mr Ebadi, were placed in three-person rooms, even though the rooms had originally been designed to have two occupants;
(3) The cubicle in which the rooms' toilets were located did not have a door, and, in some cases, did not have a curtain to screen it from the rest of the room. The Claimants say that this meant that detainees felt embarrassed to go to the toilet, because they could be seen and heard by their room-mates, and because noises could be heard when they or others used the toilet. They also said that the rest of the room was permeated by unpleasant smells emanating from the toilet;
(4) Moreover, for those detainees who observed the Muslim faith, it was a requirement that they performed prayers in their room during the night state period. The Claimants say that this meant in some cases that they had to face the toilet when they prayed and, in every case, it meant that they were in very close proximity to the toilet when they prayed;
(5) The toilets did not have a seat or lid, and the Claimants say that the detainees were not provided with adequate cleaning materials, as a result of which the toilets were generally dirty, and at times filthy and unsanitary;
(6) the Claimants say that the unpleasant conditions in the rooms were exacerbated by a lack of adequate ventilation, which meant that the rooms were stuffy and smelly; and
(7) The Claimants also complain about being locked in their rooms for shorter periods, twice each day, whilst headcounts were taken.
As I will explain, there are a number of disagreements between the parties about the conditions in which the Claimants were held at Brook House. The Defendant does not accept that the Claimants' descriptions are accurate in all respects. So, for example, the Defendant says that, by the time the Claimants were detained at Brook House, steps had been taken to ensure that curtains were available to screen the toilets in rooms, that most rooms had a curtain to screen off the toilet, and, if a curtain was missing, the room's occupants could ask for a replacement. There is also a dispute about the extent to which cleaning materials were available for detainees' use, and about how far the ventilation was adequate. The parties also disagree about the amount of time that was spent locked in rooms during the day, whilst the headcounts were being taken.
The Defendant says that there were good reasons for the length of the night state and that there were good reasons why detainees at Brook House were locked in their rooms during night state, rather than being confined to their corridor or unit, as was the case in some other Immigration Removal Centres (“IRCs”). The Defendant says that the reason why the toilet space had a curtain rather than a door was to avoid the risk that door fittings would be used as ligature points for suicide attempts. The Defendant further says that the toilet did not have a lid or seat because to provide them would have created a safety and security risk.
There is also a dispute between the parties about the extent to which the proximity of the toilet would interfere with religious observance. The Claimants and the Defendant have provided the Court with expert evidence in this regard. There is a difference, in particular, as to whether unpleasant and/or unsanitary conditions could invalidate a believer's prayers.
The Claimants also renew their application for leave to apply for judicial review on the basis that the Defendant should have published the criteria which were applied when allocating an immigration detainee to a detention centre, and should have given them an opportunity to make representations before the allocation decision was taken (or, failing that, the opportunity to make representations as to why they should be moved to another centre after they placed in a detention centre). Brook House was built to the standard of a Category B prison, and the Claimants say, though the Defendant disputes, that the conditions were akin to those of a Category B prison. Brook House was designed to be suitable to take detainees who had completed a prison sentence or who required a stricter regime, for example because they were regarded as an escape risk. However, it accommodated almost all types of detainees. None of the Claimants was an ex-prisoner or a particular threat, and they say that this should have been taken into account by the Defendant, when making its allocation decisions, and that they should have been given the opportunity to make representations as to why they should have been allocated to an IRC with a softer regime.
Permission to apply for judicial review on the “allocation” ground was refused by Martin Spencer J on the papers on 15 April 2019. On the same occasion, Martin Spencer J gave permission to apply for judicial review on the other grounds that were advanced before me, and refused permission on two further grounds, relating to the Public Sector Equality Duty (“PSED”), set out in the Equality Act 2010 (“ EA 10”), section 149, and to an alleged failure to operate a safe regime at Brook House. The Claimants have not renewed their application for permission to apply for judicial review in relation to the s149 or “safe regime” grounds.
The Claimants have been represented by Ms Stephanie Harrison QC, Mr Raza Halim and Mr David Sellwood, the Defendant by Mr Thomas Roe QC and Ms Hafsah Masood, and the Interested Party by Mr Scott Matthewson. I am grateful to all counsel for their submissions, both oral and written.
The Claimants
The First Claimant, Mr Soltany, who is from Afghanistan, arrived in the UK on 16 May 2016 and immediately claimed asylum. His claim was refused, and on 7 April 2017 he became appeal rights exhausted. He was detained while reporting on 22 August 2017, and on 1 September 2017 he was transferred from Morton Hall IRC to Brook House, after being served with removal directions. At the time, it was expected that he would be flown to Afghanistan a few days later, on 4 September 2017. In fact, he remained in Brook House until he was transferred to Tinsley House IRC on 28 October 2017, after an incident in which he was assaulted by other detainees. During this period, there were two unsuccessful attempts to remove Mr Soltany to Afghanistan, on 4 and 23 September 2017. On these occasions, Mr Soltany resisted his removal. The Defendant says that he was disruptive, and Mr Soltany claims that he was treated unlawfully by those who were trying to remove him.
Mr Soltany was released from detention on 30 October 2017. On 1 November 2017, Mr Soltany was assessed by Dr Lisa Wootton, a Consultant Forensic Psychiatrist instructed by his solicitors. Dr Wootton diagnosed Mr Soltany as suffering from Post-Traumatic Stress Disorder and depression.
Mr Soltany was granted refugee status by the Defendant on 2 January 2020.
Mr Soltany was, therefore, detained at Brook House for about two months, from 1 September 2017 to 28 October 2017. During this period, Mr Soltany stayed in a number of different rooms. Some of them were two-man rooms, but he was placed in a three-man room during 5–6 September 2017, 24–27 September 2017, and 11–25 October 2017.
The Second Claimant, Mr Ebadi, is also from Afghanistan. He claimed asylum in 2014. His asylum claim was refused, and his appeal rights were exhausted on 22 January 2016. Mr Ebadi was detained when reporting on 16 May 2017, and was taken to Brook House. An attempt was made to remove Mr Ebadi on 27 July 2017 but he resisted. The Defendant says that he was disruptive, and Mr Ebadi complains about the way that he was treated during the attempt at removal. Mr Ebadi remained at Brook House until he was released from detention on 16 November 2017. Whilst he was at Brook House, Mr Ebadi was examined by a psychiatrist instructed by his solicitors, Dr Utpaul Bose. In a report dated 8 November 2017, Dr Bose diagnosed Mr Ebadi as having PTSD.
Mr Ebadi was subsequently granted an in-country right of appeal, and his asylum appeal was allowed by the First-Tier Tribunal on 4 February 2020.
Accordingly, Mr Ebadi was at Brook House for about six...
To continue reading
Request your trial
-
Jessica Leigh v The Commissioner of Police of the Metropolis
...implausible, or inconsistent with other incontrovertible evidence: see Soltany v Secretary of State for the Home Department [2020] EWHC 2291 (Admin) [77]–[78] (Cavanagh 86 I have reviewed all the evidence about the six decisions under scrutiny, bearing in mind these principles and the need......
-
The King (on the application of British Gas Trading Ltd) v Secretary of State for Energy Security and Net Zero
...the Cabinet Office [2018] EWHC 2746 (Admin) at [11], Mrs Justice Simler; R (Soltany) v Secretary of State for the Home Department [2020] EWHC 2291 (Admin) at [87]–[88], Mr Justice Cavanagh). It was submitted on behalf of BGT that this principle did not extend to the evidence of the Intere......
-
NB v Secretary of State for the Home Department
...determination of the case. It is therefore closer to the sort of situation which arose before Cavanagh J in R (Soltany & Others) v SSHD [2020] EWHC 2291 where there were various disputed claims about conditions at the Brook House Immigration Removal Centre, although I note that in that case......
-
Norfolk and Suffolk NHS Foundation Trust v HJ
...level, its sense can depend on the context” 31 A further example is R (Soltany & Ors) v Secretary of State for the Home Department [2020] EWHC 2291 (Admin) where an article 5 challenge was made to the lawfulness of the regime at an IRC which required detainees to remain in their rooms. Tha......