Hussein v Secretary of State for the Home Department & Anor

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.

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.

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.

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 508 adult males. The precise cultural and ethnic composition of the detainees may obviously vary from day to day, but I was told that usually around 48% are of the Muslim faith.

Most of the individual rooms are two-bedded for two occupants each. But 60 rooms were adapted during 2016 by the addition of an extra bunk bed. Since March 2017 these adapted rooms have progressively been used for three occupants; and, as described above, each of these claimants spent all or part of their time at Brook House in three-bedded rooms with two other occupants. The rooms (or at any rate those used by these claimants) are about 12 metres square and measure about 4 metres by 3 metres. Internal to each room in one corner is a lavatory. This is screened by solid side and end walls or partitions, which are not floor to ceiling, but which are mostly above eye level. There is no door but simply a gap through which a person enters or leaves the lavatory cubicle. It is said by the SSHD and G4S that the gap is, or is supposed to be, covered by a curtain fixed by velcro. The reason why there is no solid door, and why velcro and not a more solid curtain rail is used, is said to be the risk of a door frame or curtain rail being used as a ligature point by a detainee attempting to commit suicide which, tragically, some do. I wish to stress that I am sensitive to the important need to minimise that risk.

As indicated above, there are in these cases huge disputes about such issues as sight lines and how far a person actually using the lavatory is or is not in sight of others in the room; and whether or not there was in the case of these claimants an effective curtain. Mr Hussein says that during his stay there was none at all in his room. Mr Rahman says that there was a "cloth" in two of the rooms he occupied, but it did not stay up but fell down.

There are also huge issues about the adequacy of the ventilation in clearing lavatory and other smells, the windows being fixed closed; and huge disputes about the standard of cleanliness and sanitation of the rooms and the lavatories within them.

The "lock-in" or "night state"

All male IRCs operate a "night state" during which detainees are confined to their rooms. The period of the night state varies between centres. At Brook House it is, and was at the time material to these claims, between 9.00 p.m. and 8.00 a.m., i.e. 11 hours. In some other centres it is, or may be, a shorter period. The effect of the night state is that, between those hours, the detainees are confined to their shared rooms. The communal lavatories and washing facilities elsewhere in the premises are not available to them, and they must use the lavatory within the room for all purposes.

The Muslim prayer timetable

Both claimants say that an observant Muslim is required to say prayers five times a day within certain required periods. This is further described in a statement dated 19^th January 2018 by Zeeshan Qayum, who is an Imam and the Head of Religious Affairs for the Gatwick IRCs of Brook House and nearby Tinsley House.

Very shortly before the hearing, the SSHD issued a formal application, with the statement attached, for that statement to be admitted in evidence. Mr Thomas Roe QC, on behalf of the SSHD, chose not to develop that application at the hearing; but as the SSHD had herself produced it, and as it is signed and dated and contains a statement of truth, I see no reason why I should not rely upon it, and I do.

At paragraph 6 the Imam describes the times or periods between, or within, which each of the prayers must be said in the winter and in the summer months according to the rising and setting of the sun. Most germane to the present case are the dawn ("Fajr") and late night ("Isha") prayers and the sunset prayer ("Maghrib"). The Imam says that the Fajr should be said between about 3.00 a.m. and 4.30 a.m. in the summer and 6.00 a.m. and 7.45 a.m. in the winter. The Isha should be said between about 10.30 p.m. and 2.00 a.m. in the summer, and 6.00 p.m. and 2.00 a.m. in the winter. The Maghrib should be said between about 9.30 p.m. and 10.30 p.m. in the summer, and 4.15 p.m. and 6.00 p.m. in the winter.

It is immediately apparent that the Fajr always, and the Isha and the Maghrib during the summer months, fall within the period of the night state or lock-in, and, in short, that an observant Muslim who is compulsorily detained at Brook House would be constrained (as the SSHD accepts) to say those prayers in his room which is shared with one or two others (who may or may not be of the Muslim faith, or of any faith at all) and which contains an unclosed lavatory cubicle.

The claim under the Convention.

So far as is material, Article 9 of the European Convention on Human Rights provides as follows:

Mr Roe said that the SSHD does not accept that either claimant is as devout or observant a Muslim as each respectively claims. However, there is no evidence to contradict what each say; and in a matter of personal faith and belief I must, in the context of this case, accept (on the balance of probability) what each say in this regard.

At paragraphs 8 to 10 of his statement dated 1^st November 2017 (now at bundle 1, pp.C2 to C3) Mr Hussein says:

At paragraph 12 of his statement dated 15^th November 2017 (now at bundle 1, p.D3) Mr Rahman says:

In his statement dated 19^th January 2018 the Imam, Zeeshan Qayum, says at paragraphs 11-13:

Mr Roe submitted that the size and layout of the rooms at Brook House is such that a Muslim within the room need not pray "near to a toilet" and suggested that that submission would be illuminated by a view. But I have seen photographs and plans of the rooms and I cannot accept the submission. The rooms are 12 metres square and approximately 4 metres long and 3 metres wide. The beds are against the walls on either side, leaving floor space between them in the middle. There is a desk or table with two chairs in front of it beneath the window in the far wall. The floor area available for prayer between the beds and in front of the desk and chairs cannot be more than about two metres from the open entrance to the lavatory cubicle, and about three metres at most from the lavatory pan itself. I accept that adherents not only of Islam, but of other faiths could feel degraded at having to pray, avoidably, within three metres of an exposed and open lavatory pan (there are no seats or lids), especially one which may recently have been used by other people.

In my view, this evidence, and in particular that of the Imam, clearly establishes that Article 9 is engaged in this case and that a combination of the required hours of prayer, the lock in, room sharing, and unclosed lavatories within the rooms, does result in an interference with, or a limitation upon, the rights of a Muslim protected by Article 9.

Relying upon the observations of Lord Wilson in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250 at paragraph 17 Mr Roe submitted that although the facts and circumstances of this claim are "within the scope of" or "ambit of" Article 9, and the Article is thus engaged, there is nevertheless no interference. I cannot accept that submission. Article 9 protects the freedom to manifest one's religion in worship, practice and observance. It must not be subject to any limitations save those which fall within Article 9(2).

The Imam states that "it is highly discouraged in Islam that the place of prayer is near to a toilet" and that this should only be done "in extreme circumstances ... (when no other option or place is available) ... "

The claimants were compulsorily detained, and then compulsorily locked in between hours during which they were required to say at least one or, depending on the season, two or three prayers. They were thus forced to worship and practise their religion in what are "extreme circumstances" which are "highly discouraged" in the tenets of that religion. Mr Hussein says that it distracted him from his prayer to have to pray in the smelly room and that he was unable to concentrate on his prayers in the presence of noisy room-mates. Mr Rahman says that he could not pray, or pray properly, in a room with a toilet and smell. He simply could not concentrate on prayer given the odour and uncleanliness.

During his oral submissions Mr Roe submitted that any interference with the freedom protected by Article 9 was "minimal" in the sense of the legal maximde minimisnon curat lex. At paragraph 4 of their written "Secretary of State's supplementary skeleton argument" dated 24^th January 2018, Mr Roe and Ms Hafsah Masood repeatedly say that any impact was not "significant".

I make clear that I do not by this judgment, after a relatively short hearing during which I have not heard any oral evidence, attach any adjective to qualify or quantify the degree of interference, or to place it on a spectrum. I do not say whether it was minor (but notde minimis), significant, or grave; but in my view it went beyond thede minimis, and constituted an actual interference with the protected freedom.

That being so, Article 14 of the European Convention on Human Rights is also engaged. So far as is material, that provides as follows:

There is indirect discrimination in these circumstances on the ground of religion. Muslims are required to pray at the stated hours, and the lock-in has the differential and discriminatory consequence that they have to pray in conditions (viz in the shared rooms with the lavatories) in which adherents of other faiths, or of none, do not have to do. However great the impact of the lock-in, the lavatories and room sharing may be on other detainees, it has a greater and discriminatory impact upon practising Muslims because of the requirements of their religion. As the European Court of Human Rights said in Thlimmenos v Greece (2001) 31 EHRR 15 at paragraph 44:

The claim under the Equality Act

As well as infringing rights under the Convention, the combination of the practice of the lock-in, the required hours of prayer, the unclosed lavatories, and room sharing, clearly results in indirect discrimination contrary to section 19 of the Equality Act 2010 unless it can be justified.

Section 19(3) lists the relevant characteristics for the purpose of that section as including "religion or belief". Sections 19(1) and (2) provide as follows:

Patently the SSHD applies a provision, criterion or practice which puts persons who share the protected characteristic of being practising adherents of the Muslim faith at a particular disadvantage when compared with persons who do not share that characteristic. There is thus a burden on the SSHD under section 19(2)(d) to show that the relevant provision, criterion or practice is a proportionate means of achieving a legitimate aim. It thus follows that both under the Convention and under section 19 of the domestic Equality Act 2010 there is a burden upon the SSHD to justify, if she can, the discrimination in point.

Paragraph 2 of Schedule 18 to the Equality Act 2010 provides that "in relation to the exercise of immigration ... functions" (as then defined in paragraph 2(2)) section 149 of the Act "has effect as if subsection (1)(b) did not apply to the protected characteristic of ... religion or belief ... "

Ms Harrison accepts that the present issue falls within the exercise of immigration functions by the SSHD so that on this issue subsection (1)(b) of section 149 of the Act is disapplied. That, in turn, disapplies the whole of subsection (3) of section 149 to the issue in this case.

So far as material to the issue in this case, therefore, section 149 of the Equality Act provides as follows:

The SSHD has conceded that in exercising her functions at Brook House, insofar as relevant to this case, she has not previously or to date paid the due regard to the need to eliminate discrimination that section 149(1) requires. The high importance of that duty and the manner in which it must be discharged is set out and explained in paragraphs 26, 60 and 61 of the now seminal judgment of McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 and the authorities there cited. I incorporate those paragraphs into this judgment by reference, but as it is not in issue that they apply to the duty upon the SSHD under section 149 in this case, I need not set them out. I stress only that the duty is non-delegable; cannot be discharged merely as a "rearguard action"; and is a continuing and "heavy" one.

Where a minister has failed for an appreciable period of time to discharge that duty, it is not, in my view, sufficient for a court merely to so state in judgment, even after a concession has been made. A minister who has failed to discharge that heavy duty cannot avoid censure by a concession made in the course of the proceedings themselves. I will accordingly make a declaration substantially in the terms of paragraph (viii) of the relief sought in the respective amended grounds for judicial review; namely to the effect that in continuing to authorise and/or permit the maintenance of the lock-in (or night state) regime at Brook House and/or the conditions of the detention generally and/or in the claimants' cases, the SSHD failed to have any regard to the public sector equality duty under section 149 of the Equality Act 2010.

I am not willing to go further and make a mandatory order requiring the SSHD to discharge that duty within 28 days (as contended for in the amended grounds) or any other specified period. The breach of the duty having now been plainly highlighted by this case and declared by this court, I should, in the first instance, assume that the SSHD will now, within a reasonable time, conscientiously and diligently discharge the duty upon her applying the Bracking principles. That will necessarily require a period and process of consultation with a range of officials, G4S, and others, and the proposed period of 28 days is in any event unrealistic and, frankly, absurd.

If in due course no changes are made in reaction to this case and judgment and there is a further challenge, the SSHD will need to be able clearly and positively to demonstrate that she has meantime discharged the duty under section 149 in the manner that Bracking explains and requires.

Both under Article 9 of the Convention and under the Equality Act the discrimination is unlawful unless it can be justified. The thrust of evidence filed on behalf of the SSHD, and the written and oral submissions of Mr Roe and Ms Masood, are to the effect that any discrimination (which is not, as they would submit, de minimis or insignificant) is justifiable. Explanations are given as to the need for a night state or lock-in; the need for lavatories in the rooms; the need for the lavatories to be screened only by a curtain affixed by velcro; and the need for rooms to be occupied by two, or in some cases three, detainees.

It is not for the claimants to suggest how the discrimination may be avoided or mitigated, but Ms Harrison nevertheless suggests that it may be addressed by one or more of a number of measures. These may include not placing practising Muslims at Brook House at all; modifying (whether seasonally or generally) the hours of night state in relation to practising Muslims, or permitting them to leave their rooms at the times of prayer; grouping Muslims in certain wings and having different night state times in those wings; and removing the in-room lavatories, or at least much improving the screening and ventilation of them.

However, Ms Harrison makes the bolder and more overarching submission that, in the circumstances of the present case, it is not at the moment open to the SSHD to seek to justify, or advance justification for, the discrimination at all, since she has to date failed to discharge her duty under section 149. Put colloquially (although these are my words not those of Ms Harrison), as the SSHD has not yet thought about the relevant discrimination issues at all, she cannot advance as justification matters which she may later be able to advance once, indeed, she has conscientiously thought about it. Meantime she is merely engaging in a "rearguard action" as proscribed by subparagraph (4) of paragraph 26 of Bracking.

In making that submission, Ms Harrison relies in particular upon the observations of Baroness Hale of Richmond DPSC (with whom the rest of the court agreed) in Coll v Secretary of State for Justice [2017] UKSC 40, [2017] 1 WLR 2093 at paragraph 42. In that case the claimant, a female serving a sentence of life imprisonment, complained that the relative paucity of approved premises for women relative to men had the sex discriminatory effect that she could not, unlike a man, be placed in approved premises near to her home in preparation for her release into the community.

The Supreme Court held this to be direct discrimination. The judge had already found and declared that the Secretary of State had failed to discharge the public sector equality duty, and that finding had not been the subject of challenge in the subsequent appeals. In paragraphs 34 to 42 of her judgment, Baroness Hale described the arguments that had been advanced in relation to justification; but at paragraph 41 she said:

The other options are then described, just as Ms Harrison has suggested alternative options, or combinations of options, in the present case as I have briefly described above. At paragraph 42 Baroness Hale continued:

It is instructive to note the relief actually granted by the Supreme Court in paragraph 45 of Coll. The court made a declaration that there was:

Ms Harrison submits that, so far as is material, the situation in the present case is on all fours with that in Coll and that the SSHD, having failed yet to discharge her public sector equality duty under section 149, cannot yet show justification. Just like the Secretary of State for Justice in Coll, the SSHD has not addressed the possible impacts upon practising Muslims, assessed whether there is a disadvantage, how significant it is, and what might be done to mitigate it or to meet the particular circumstances of detainees who are practising Muslims.

On behalf of the SSHD, Mr Roe seeks to distinguish Coll on the ground that the case concerned, as the Supreme Court held, direct discrimination, whereas the present case concerns an interference which, as I have held, amounts to indirect discrimination. At paragraph 5 of their Supplementary skeleton argument dated 24^th January 2018, Mr Roe and Ms Masood submit that:

In their written document they then posited the example of a Christian detainee who said he needed to make a pilgrimage to Canterbury. In his oral submissions, Mr Roe posited the more extreme case of a Muslim sentenced to life imprisonment who said that he must make his pilgrimage to Mecca. Mr Roe submitted that the restriction on his ability to do so is so obviously justifiable that it makes no difference whether, in discharge of the section 149 duty, the minister had thought about it or not.

Mr Roe further stresses that section 149 is part of the domestic legislation and no part of the European Convention. He thus submits that insofar as justification under the Convention and Article 9(2) is under consideration, failure to discharge the section 149 duty is irrelevant.

I cannot accept any of these arguments or submissions. Paragraph 42 of Coll is not laying down (nor am I being invited by Ms Harrison to apply) a rule of law. It merely indicates an approach which may, on the facts and in the circumstances of a given case, be adopted. I cannot see that the approach is confined to cases of direct discrimination, nor why it may not be equally in point in cases of indirect discrimination.

Either way, the point is the same. The minister has failed to address his mind to the problem and how it may be mitigated or avoided. Whilst the question of justification may not "logically depend on whether the [minister] thought about this at the time", a minister who did not think about it is likely to be disadvantaged or disabled in demonstrating justification unless and until he has properly thought about it.

The example of a Muslim serving a life sentence who claims he must go to Mecca is an extreme one, and many good rules or approaches may founder when pressed to destruction. That does not make them wrong in less extreme circumstances.

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.

Mr Roe relies also upon the observations of Mummery LJ in Elias v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213 at paragraphs 133, 175, 176 and 178. In that case the Secretary of State for Defence had failed to discharge a similar public sector duty under section 71 of the Race Relations Act 1976. At paragraph 133 Mummery LJ said that the minister:

That theme permeates paragrahs 175, 176 and 178 of the same judgment. So Mr Roe submits that, on the basis of that authority, ex post facto justification may be relied upon, albeit that the court must consider it with great care.

Seldon v Clarkson Wright and Jakes [2012] UKSC 16, [2012] 3 All ER 1301 concerned direct age discrimination. At paragraphs 59 and 60, in the context of that case, Lady Hale SCJ cited, amongst other materials, Elias and clearly contemplated that rationalisation may be ex post facto. Seldon was in turn cited in argument in Coll, although not referred to in judgment.

As I have already said, paragraph 42 of Coll is not, as I understand it, laying down a rule of law, but in my view I should adopt the same approach as in Coll in the present case.

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.

For these reasons, I will make a declaration in terms to be drafted and agreed by counsel and modelled upon that in Coll, to the effect that the night state or lock-in regime at Brook House in conjunction with the presence of internal unclosed lavatories and shared rooms (i) constitutes indirect discrimination contrary to Article 9 of the European Convention on Human Rights read with Article 14 which is unlawful unless justified; and (ii) unless justified, constitutes unlawful indirect discrimination contrary to section 19 of the Equality Act 2010. No such justification has yet been shown by the SSHD.

Mr Rahman is himself a smoker, and at first blush it might seem odd that he can complain that smoking is permitted within those rooms at Brook House which are allocated to smokers when he himself did smoke within them. However, at paragraphs 14 to 19 of his second witness statement dated 22^nd December 2017 (now at bundle 2, pp.I-14 and 15) he says:

Smoking in the rooms is either lawful or unlawful, and the SSHD has expressly accepted that that narrative by Mr Rahman establishes that, even as a smoker himself, he has sufficient interest to bring his claim that smoking within the rooms is in fact unlawful and that no one, himself included, should have been permitted to smoke.

Section 1(1) of the Health Act 2006 (in this part of this judgment "the Act") provides as follows:

So far as is material, section 2 of the Act provides as follows:

So far as is material, section 3 of the Act provides as follows:

So far as is material, section 8 of the Act provides as follows:

Regulations have been made under section 3 of the Act by the Secretary of State for Health, namely The Smoke-free (Exemptions and Vehicles) Regulations 2007, SI [2007] 765. Regulation 2 of those regulations provides that the exemptions in Part 2 of the regulations apply only to premises that would be smoke-free under section 2 of the Act if those exemptions had not been made. It is thus necessary first to decide whether those areas of Brook House which are enclosed or substantially enclosed are premises that would be smoke-free but for any exemptions in the regulations.

The recent authority of the Supreme Court in Black v Secretary of State for Justice [2017] UKSC 81, [2018] 2 WLR 123, clearly establishes that Chapter 1 of the Act does not bind the Crown as it does not expressly so provide. Before and throughout the written and oral submissions in the present case, the SSHD, and Mr Roe and Ms Masood on her behalf, strenuously maintained that Brook House is "Crown premises" or "government premises" such that the Act is of no application to it.

As developed at the hearing, this argument relied in part upon the fact that there is a lease and a chain of subleases between the freehold owner of Brook House (Gatwick Airport) and G4S. Within that chain is a lease to the Secretary of State for Communities and Local Government, who in turn leased the premises to G4S at an annual peppercorn rent. The term of the lease to G4S expired in 2014, but they remain in occupation as tenants at will pursuant to a letter dated 27^th February 2014 from solicitors on behalf of the Secretary of State for Communities and Local Government.

The argument on behalf of the Secretary of State for Justice in Black (which concerned a "state-run prison") drew a distinction between "state-run" or "public", and "private" prisons. This can clearly be seen in the summary of the argument of leading and junior counsel on behalf of the Secretary of State for Justice before the Court of Appeal in that case, now reported at [2016] QB 1060 at 1063G. Their argument before the Supreme Court has not yet been reported. However, at paragraph 42 of the judgment of the court, Baroness Hale of Richmond PSC, addressing the argument, appears to have accepted a distinction between "state-run" and "private" prisons. The assumption within the argument and paragraph 42 appears to be that the Act does apply to prisons which are "private" and not "state-run".

Mr Roe submitted during the present hearing that this is, for these purposes, an illusory and mistaken distinction. What matters is not who runs the prison or, in the present case, the IRC, but whether the premises themselves are Crown premises, since it is upon "premises" that section 1 of the Act bites. He submitted that the fact that the Crown is a lessee/landlord in one link of the chain of leases is sufficient, when taken with the functions performed there, to make the premises at Brook House "Crown premises" so as to be outside the scope of the Act altogether.

On the day after the oral hearing concluded, Mr Thomas Roe QC, on behalf of the Secretary of State, sent an email to myself, copied to all parties, dated 25^th January 2018. So far as is material, that reads as follows:

Whether or not that email technically amounts to a formal concession, or merely an election in this particular case not further to pursue the point, I myself consider that the position taken by the Secretary of State after her further reflection is a wise and correct one. The premises have been demised by the Crown to a private contractor, G4S, albeit for a peppercorn rent. Brook House is run on behalf of the Crown pursuant to the Service Agreement, but is entirely run and managed by the private contractor. The fact that one link in the chain of leases is a Secretary of State does not render them Crown premises. Accordingly, both as a result of Mr Roe's email but also my own independent decision, I proceed on the basis that Brook House is indeed premises to which the Act applies.

That being so, it is accepted by the SSHD that the enclosed areas of the premises fall within section 2 of the Act, being "a place of work". That, however, is subject to any exemptions made by the regulations. Section 3(2) of the Act expressly extends to "premises where a person ... is living whether permanently or temporarily (including ... prisons and other places where a person may be detained)." An IRC such as Brook House is patently "a place where a person may be detained", so it was, and is, within the power of the Secretary of State for Health to make an exemption for IRCs by regulation. Has he done so?

It is necessary to quote the regulations somewhat extensively. They provide as follows:

A private dwelling is not smoke-free except for any part of it which is -

Accommodation for guests and club members

A designated bedroom in a hotel, guest house, inn, hostel or members' club is not Smoke-free.

In this regulation 'a designated bedroom' means a room which -

is set apart exclusively for sleeping accommodation;

has been designated in writing by the person having the charge of the premises in which the room is situated as being a room in which smoking is permitted;

has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid, floor-to-ceiling walls;

does not have a ventilation system that ventilates into any other part of the premises (except any other designated bedrooms);

does not have any door that opens on to smoke-free premises which is not mechanically closed immediately after use; and

is clearly marked as a bedroom in which smoking is permitted.

In this regulation 'bedroom' does not include any dormitory or other room that a person in charge of premises makes available under separate arrangements for persons to share at the same time.

Other residential accommodation

A designated room that is used as accommodation for persons aged 18 or over in the premises specified in paragraph (2) is not smoke-free.

the specified premises are -

care homes as defined in section 3 (care homes) of the Care Standards Act 2000;

hospices which as their whole or main purpose provide palliative care for persons resident there who are suffering from progressive disease in its final stages; and

prisons.

... "

The broad scheme of the regulations is clearly to distinguish "private accommodation", "accommodation for guests and club members", and "other residential accommodation" and to make express and tailored provision for each category. Prisons are firmly placed within regulation 5 (other residential accommodation), and express provision is made for them. Since section 3(2) of the Act expressly refers also to "other places where a person may be detained" the types of premises specified in regulation 5(2) could clearly have been extended to include IRCs, but they are not. I cannot speculate whether the omission results from policy or oversight.

It cannot be suggested, and is not suggested, that an IRC falls within the types of premises to which regulation 4 applies. By no stretch of the imagination is an IRC a hotel, guest house, inn, hostel or members' club, and even if it was, the exemption in the regulation would not extend to rooms occupied by more than one detainee: see regulation 4(3).

The SSHD, and Mr Roe and Ms Masood, are thus driven to submit that detainees' rooms within an IRC are "private dwellings" so as to fall within the exemption in regulation 3. Valiant though that submission is, I reject it.

First, the regulations make express provision for prisons within regulation 5 under the heading "Other residential accommodation". Since section 3(2) of the Act makes express reference to "prisons and other places where a person may be detained", the obvious place in which to make express provision for IRCs would be as an additional sub-paragraph in regulation 5(2). If the maker thought it necessary to provide expressly for prisons in regulation 5(2), he cannot sensibly have thought or intended that an IRC did not require express provision as falling within the description "a private dwelling" in regulation 3(1).

Second, whilst the word "dwelling" is not defined in the regulations, and I eschew any attempt to define it, the concept of a dwelling is not apt to describe the circumstances of a person who is compulsorily detained in an institution. Some colour is gained from the reference in regulations 3(2)(b) to "the household in the dwelling". Whilst not all dwellings contain a "household", for a person may dwell alone, the concept of a dwelling in the regulations is clearly that of a social unit which may include a household. The shared room of a detained person does not, and cannot.

Third, regulation 3 applies only to a "private dwelling". Again, I eschew any attempt to define the word "private" for these purposes, but in my view it is impossible to characterise an IRC (although itself run by a private contractor) as the "private" dwelling of any person compulsorily detained there.

Fourth, the regulations differentiate between a "dwelling" in regulation 3 and a "bedroom" in regulations 4 and 5(3) and (although it ceased to have effect on 1^st July 2008) in regulation 10(2) which related to mental health units. The rooms of detainees at Brook House are, in truth, not dwellings but bedrooms. They contain no cooking or recreational facilities or space.

For these reasons, I am crystal clear that the regulations as currently made do not make any exemption for IRCs and, accordingly, that all those areas of Brook House which are enclosed or substantially enclosed must be smoke-free, including the detainees' rooms.

I will grant a declaration that the practice and policy of permitting smoking within any of the areas of Brook House which are enclosed or substantially enclosed, including the detainees' rooms, was, at the time the claimant Mr Rahman was detained there, and still is, unlawful.

Whether or not an offence under section 8 of the Act has been, or is being, committed would appear to depend on whether or not any person charged with an offence under that section can show one of the defences listed in section 8(5). That is, of course, entirely outside the scope of these proceedings and this judgment.

Detention Services Order 2/2014 (the DSO) is issued by the Home Office and is headed "Smoke-free legislation. Application to immigration removal centres, short-term holding facilities, pre-departure accommodation and escort vehicles." At paragraph 2 it states (now at bundle 3, p.K-G141):

The words "a pragmatic approach" in paragraph 2 of the DSO quoted above are, frankly, little more than a euphemism for knowingly evading the law for a "pragmatic" reason. The passage then bases that pragmatic approach on "the principle" that IRC premises “are, in effect, detainees' places of residence during their period of detention.” Maybe they are, but for the reasons I have given that does not make them a private dwelling within the meaning of the regulations. In my view, insofar as it applies to Brook House or other private IRCs (I have given no consideration to short-term holding facilities, pre-departure accommodation, or escort vehicles) the DSO is plainly unlawful and I will so declare it.

If the SSHD wishes to continue to permit smoking within the bedrooms or other enclosed or substantially enclosed areas of Brook House or other private IRCs, this can be achieved by a very short and simple amendment to the regulations if the SSHD is able to persuade the Secretary of State for Health to make one.

In summary -

Finally, I record my gratitude to Ms Harrison QC and Mr Roe QC, ably supported by their juniors, for their sustained and cogent arguments on paper and during the hearing.