Queen on the Application of Mohammad Ahmed Hussein and Muhammad Rafiqur Rahman v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 01 February 2018 |
| Neutral Citation | [2018] EWHC 213 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5147/2017 |
| Date | 01 February 2018 |
[2018] EWHC 213 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Holman
CO/5147/2017
CO/5164/2017
and
and
APPEARANCES
Ms S Harrison QC, Mr R Halim and Mr S Simblet (instructed by Duncan Lewis) appeared on behalf of the Claimants.
Mr T Roe QC, and Ms H Masood (instructed by Government Legal Department) appeared on behalf of the Defendant.
Mr R Furniss appeared on behalf of the Interested Party ( MISS E WHEELER attended for judgment)
THE INTERVENOR did not attend and was not represented, but submitted written submissions by Heather Williams QC and Keina Yoshida.
Introduction and the issues which this judgment addresses
Two claims for judicial review were listed together for a so-called rolled-up hearing of the application for permission to apply for judicial review, to be followed by the substantive hearing if permission was granted. The hearing was listed with considerable expedition, with two days estimated and allowed. There was perceived to be urgency, although most of the underlying matters complained of have persisted for several years and, indeed, both claimants were released from detention some time ago.
Both claimants are adult men of the Muslim faith who were detained at Brook House immigration removal centre (IRC) at Gatwick Airport. Both claimants claim that the conditions and regime at Brook House interfered with their required religious observance as, they say, devout Muslims, and that the conditions and regime have a differential and discriminatory impact upon them as Muslims, not experienced by those of other faiths or of no faith at all. This is said to follow from a combination of the hours of “lock-in” (as the claimants choose to call it) or “night state” (as the defendant prefers to call it) at Brook House when detainees cannot leave their rooms; the required times of Muslim prayer; room sharing; and the presence within the room of a lavatory cubicle without a door. The Secretary of State for the Home Department (SSHD) admits within these proceedings that she has to date failed to discharge her duty under section 149 of the Equality Act 2010 to have due regard to whether these circumstances have a discriminatory impact.
One of the claimants, Mr Rahman, being a smoker himself, was placed in a room with other smokers who were permitted to smoke in the room. He says that his room-mates smoked far more than he did throughout the night, such that, even as a smoker, the smoky atmosphere in the room became too much for him to bear. He now claims that it is unlawful of the SSHD and/or G4S Care and Justice Services (UK) Ltd (G4S), who run Brook House, to permit any detainee (himself included) to smoke in the detainees' rooms.
In relation to the above issues, I granted permission to both claimants to apply on grounds (V), (VI) and (VII) of their respective amended grounds for judicial review, and to seek the relief in paragraphs (vii), (viii) and (ix) (which appears as (xi) in the Rahman amended grounds) of paragraph E of the respective amended grounds. I also granted permission to Mr Rahman to apply on ground (VIII) of his amended grounds (headed “Smoking in the IRCs”) and to seek the relief in paragraphs (ix) and (x).
Both claims also make more wide-ranging challenges which include challenges to the lock-in regime itself; to the presence of lavatories at all within the rooms; to the use of three-men rooms at Brook House; to the layout of the in-room lavatories and the adequacy of curtains or other screening; to the quality and efficacy of the ventilation systems (relevant to both the smoking and the lavatory issues because of odours); to the lawfulness of a regime which relies upon detainees to clean their own rooms and, therefore, lavatories used by other detainees; and to the process or method of allocation of detainees to Brook House, it being said that there are other IRCs whose conditions and regimes have, or may have, a less discriminatory impact upon the religious observance of Muslims.
It was very obvious from the outset that many of these issues involved considerable disputes of fact which could only be resolved by extensive oral evidence and, indeed, I was invited by the SSHD just before the hearing began to consider making a site visit to Brook House, which would realistically have required a whole court day. This portmanteau of issues, complaints and claims was way beyond the scope of an expedited two-day hearing.
I have identified above the issues and grounds which were the most important ones to these particular claimants upon which I gave permission. As Ms Stephanie Harrison QC submitted on behalf of the claimants, those grounds involve the least disputed facts, and essentially involve issues of law. As a conclusion of the present hearing, I have decided in the exercise of my discretion to refuse permission to these claimants to apply for judicial review on any of their amended grounds, save those identified above. This is essentially a case-management decision upon application of the overriding objective in the Civil Procedure Rules.
These two claimants were released some time ago. They have now had the two full and expedited days of court time for submissions which they asked for, plus, of course, the prior reading time and the time now taken in preparation and delivery of this judgment. The remaining wide-ranging issues which they raise are said to be common to a number of other claims or potential claims, including some which are currently stayed. Because a rolled-up hearing was, exceptionally, ordered, there has been no consideration of any of these claims by a judge on paper as there should be. If other claimants wish the court in due time to consider others of these issues, then they must take their place in the queue and be considered in an orderly way to the extent that any given head of claim is considered sufficiently arguable. I stress, however, that in refusing permission to apply on any of these other grounds, I have not made, and do not by this judgment make, any determination on their merits as to their arguability.
The National Council for Civil Liberties (“Liberty”) was permitted to intervene in these proceedings by way of written submissions. I was grateful to Heather Williams QC and Keina Yoshida for their erudite and thoughtful written submissions dated 7 th December 2017. They go, however, to some of the wider issues upon which I have refused permission, and I will make no further reference to them in this judgment.
The essential facts
(i) Mr Hussein
The claimant, Mohammad Hussein, was aged 23 during the period of his detention. He originates from Ethiopia. He arrived in Europe in 2012 and first claimed asylum in Italy. His subsequent asylum and immigration history between then and 2017 is not relevant to the present issues. In July 2017 he travelled for a second time to England and was arrested at Victoria Coach Station. He was detained at Brook House between 26 th July and 17 th November 2017 whilst his renewed asylum claim was considered and rejected. An attempt to remove him on 3 rd October was frustrated. On 17 th November Mr Hussein was transferred from Brook House IRC to Colnbrook IRC, and on 29 th November 2017 he was released altogether from detention, but subject to reporting conditions.
Throughout his time at Brook House, Mr Hussein was placed with two other detainees in a three-bedded room.
(ii) Mr Rahman
The claimant, Muhammad Rahman, was aged 35 during the period of his detention. He originates from Bangladesh. He first entered the UK in 2010 on a student visa which was later curtailed when the licence of the college in question was revoked. Several years later he made an asylum claim which was refused and his subsequent appeals dismissed. The SSHD wished to remove him. He was detained at Brook House between 19 th September and 13 th November 2017 when he was released. Between 25 th September and 23 rd October, he was placed in a three-bedded room with two other detainees. Before and after those dates, he was placed with one other detainee in a two-bedded room.
(iii) Brook House IRC
Brook House was built about ten years ago as an IRC, but modelled on the design of a category B prison. It opened as an IRC in March 2009. I will later briefly refer to the contractual arrangements for Brook House in relation to the “smoking” issue. For the present, it is sufficient to say that under an elaborate Service Agreement, G4S provide, as summarised in Recital (B) to that agreement, “operation, maintenance and management services” at Brook House. In short, it is privately run by G4S on behalf of, and pursuant to a contract with, the SSHD. Brook House is currently an all-male IRC which currently has a capacity of...
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