17 Oct High Court affirms serious unlawfulness of Home Office blanket seizures of migrants’ mobile phones

Following its judgment on 25 March 2022, the High Court on Friday reaffirmed the serious unlawfulness involved in Home Office blanket seizures of mobile phones from all migrants entering the UK by small boat. The policy, operated during 2020, resulted in the seizure of nearly 2000 phones from affected migrants; the bulk download of their data, and the retention of the phones for many months, resulting in the affected people being unable to contact family or access asylum documentation they had brought with them. Our clients, along with others, brought a judicial review of the practice to secure the return of their phones and to test whether what the Home Office was doing was lawful at all.

On Friday, the Court gave its final judgment on the matter, ruling that a “failure of governance” had led to the unlawful policy and practices, and had afflicted the Home Office’s response to the litigation, which the High Court criticised. Referring to internal legal advice that “ducked” and “sidestepped” issues that should have been disclosed to the Court, it criticised an “very unsatisfactory” approach to disclosure stemming from a “collective failure of judgment”.

It also emerged at the hearing that a large number of phones have been marked for destruction by the Home Office – believed to be at least 439 – because it did not keep sufficient records to enable it to keep in contact with the phones’ owners.

As a result, the High Court has required the Home Office to alert the large number of migrants affected to the existence of the ruling, which will be placed on the Home Office website for at least a year, once published.

By way of background, the High Court ruled in March that the phones “were seized and retained unlawfully” and that:

• “The [Home Office is unable to establish that the claimants were searched” using the statutory power relied on (judgment, para 54);
• A second statutory power (s48 Immigration Act 2016) “does not authorise a search of the person” for phones or other items (para 88);
• “the seizure and retention of the claimants’ mobile phones violated the claimants’ Article 8 [Human Rights Act 1998] rights” (para 135);
• “the relevant conduct did not have a lawful basis for the purpose of the Data Protection Act 2018.  Moreover, the relevant Data Protection Impact Assessments, undertaken by the defendant, were not lawful because…the Assessments did not properly assess the risks” (para 34);
• Keeping phones “for a minimum period of three months…was capable of giving rise to a disproportionate interference with ECHR rights and data protection legislation” (para 35);
• “the data extraction policy unlawfully purported to permit the complete extraction of data from every mobile telephone and so was contrary to the ECHR and the 2018 Act” (para 35);
• Compelling PIN numbers from the affected persons was unlawful and the policy “required the officers to commit this specific unlawful act on multiple occasions against multiple people” (para 36)

Many of these points were effectively conceded by the Home Office in the face of the legal challenge, as the court recorded in its judgment.

The Information Commissioner’s Office is also investigating the Home Office failings.

The claim for judicial review was brought by claimants represented by Deighton Pierce Glynn solicitors and Gold Jennings Solicitors.  Privacy International also intervened in the case to assist the court in understanding phone extraction technology.

Daniel Carey of DPG says:

“All of this had real impacts on very vulnerable people, who lost touch with their families and couldn’t get their asylum documentation, while the phones languished on a shelf for many months, hundreds of which now cannot be returned.  The policy was punitive in effect and I am pleased that the victims have been fully vindicated.  It is another example of how a hostile environment policy opens the door to the erosion of basic human dignity.”

DPG’s clients were represented by Dan Carey, Olivia Duffield and Catherine Dowle of Deighton Pierce Glynn. Gold Jennings’s by Clare Jennings and Olivia Halse.  Counsel instructed were Tom Hickman KC, Bernadette Smith and Julianne Kerr Morrison for DPG and Tom de la Mare KC, Jason Pobjoy and Gayatri Sarathy instructed by Gold Jennings.

Jesuit Refugee Service, Care4Calais and other migrant support organisations were critical in bringing this issue to light.

For further information, please see the following press reports:

• https://www.theguardian.com/uk-news/2022/oct/14/asylum-seekers-claim-compensation-phones-seized-uk
• https://www.bbc.co.uk/news/uk-england-kent-60880587

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