25 Mar High Court finds Home Office policy of blanket seizures of migrants’ mobile phones unlawful

In a landmark judgment today the High Court found the Home Office’s blanket policy of seizing mobile phones from all migrants entering the UK by small boat to be unlawful. The policy, operated during 2020, resulted in the seizure of nearly 2000 phones from affected migrants, the indiscriminate downloading 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 – first to get their phones back and then to test whether what the Home Office was doing was lawful at all.

The High Court has ruled today 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 (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 records in its judgment.

Lord Justice Edis and Mr Justice Lane heard the claim for judicial review over 4 days between 24 to 28 January 2022. The Judges have directed that there should be a further hearing regarding what remedies will be ordered and to consider the breaches by the Home Secretary of her duty of candour in belatedly providing information about her policies and in relation to her self-referral to the ICO.

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:

“Nearly 2000 phones were taken from migrants in an indiscriminate blanket policy that the High Court has now found to be unlawful on multiple fronts, indeed, it has found that there was no parliamentary authority at all for blanket seizures and data extractions and that the legal power the Home Office thought they could use was the wrong one. 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, many which now cannot be returned.  I am pleased that today’s judgment vindicates our clients and all those affected. It is another example of how the Home Office’s hostile environment policy disregards basic human rights and dignity.”

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

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