Why Forensics Matter: Immigration officers and the quality of evidence in the UK

2022 will see a raft of high tech surveillance tools emerging in the UK government’s arsenal, which will further entrench a ‘hostile environment’ for migrants. Compounding this further, immigration officers will increasingly be using digital forensic tools such as 'mobile phone extraction' under a veil of secrecy. This raises serious concerns about overreach, misuse and abuse of power, the actual quality and integrity of the data they gather, and independent oversight of these powers. But it isn’t just mobile phone extraction, we’re also worried about several other forms of migrant surveillance, including electronic monitoring in immigration bail, social media monitoring and age assessments.

Privacy International, together with several civil society organisations*, have today written to the Forensic Science Regulator, asking him to conduct an urgent review into the exercise of digital forensic techniques by immigration officers, the adherence with relevant Codes of Practice and quality standards.

Below we set out the activities we’re most concerned about:

Digital Device Extractions: lack of transparency and quality concerns

One of the many sweeping and signficant powers that the Police Crime, Sentencing and Courts Bill (PCSCB), currently going through the final stages of the parliamentary process before becoming law, is to give immigration officers the power to extract data from asylum seekers’ phones.

While the proposed law states that immigration officers can only do this if the device owner voluntarily agrees to the extraction of data, we fundamentally question whether asylum seekers are realistically in a position to ever refuse consent. So the notion of an asylum seekers giving ‘voluntary’ consent to a state official to trawl through their phone is a nonsense.

We remain in the dark, to a great extent, in understanding the ways immigration officers currently actually obtain and use digital evidence in the UK. This contrasts, for example, with the increasing scrutiny of seizure and extraction of data from mobile phones when it is done by UK police officers. This has been shown to be hugely controversial and problematic, perhaps most notably and starkly for rape victims. Scrutiny there has led to amendments to the PCSCB to provide greater protections for rape victims from such digital intrusion. Given the particular vulnerability of migrants, transparency of how officials use their considerable powers is also vital, and proper protections should be put in place.

While there has been little public scrutiny of the use of digital device extractions by immigration officers, we know through data provided in response to Privacy International’s Freedom on Information request that in 2020 alone immigration officials conducted 4,925 mobile phone extractions. In response to a FOIA submitted by Byline Times the Home Office acknowledged that 7,167 “kiosk data extractions” had taken place between 1 July 2019 and 31 May 2021.’

This was at a time when no offical public policy even existed. The policy came into existence only in July 2021. This hurriedly introduced ‘Immigration Enforcement Digital Device Extraction Policy’ states that “[Criminal and Financial Investigation/Immigration Enforcement] do not have ISO 17025 accreditation and have not been accredited to the Forensics Regulators Codes of Conduct.”

The Data Protection Impact Assessment obtained by Privacy International states [upload DPIA and hyperlink] the primary purpose of data extraction is collecting evidence in relation to the commission of criminal offences. The conduct of investigations and prosecutions based on this data must therefore be forensically sound so as to avoid prejudicing the course of justice in proceedings.

A further Freedom of Information request in December 2021 by Privacy International revealed that the Home Office do not have published guidance or policy on reporting and treating errors in the conduct of digital forensics by Immigration Enforcement.

Our specific concerns here are that:

• First of all, without quality standards supported by robust accreditation and adherence to the published policy, mobile phone extraction techniques can results in flawed interpretations of the data, potentially with grave consequences for people whose phones have been accessed. This includes, but is not limited to, potential miscarriages of justice and inaccurate asylum determinations, thereby unfairly jeopardising people’s right to asylum.
• Second, in the absence of transparency, poor practices and abuse may not get challenged. We note that previous referrals to the Regulator concerning digital forensics** have included inaccuracies, misinterpretation, evidence handling which included loss of data, ovewriting of data, and sending data to the wrong individuals or organisations. Issues have also been raised about tools used to analyse digital forensics. “An example was given where a software tool had produced results that were later shown to be incorrect.” [Digital Forensics Specialist Group ‘Error Investigation’].

Electronic Monitoring in immigration bail and immigration cases

The government introduced mandatory electronic monitoring using GPS tags on 21 August 2021 for every individual categorised as a Foreign National Offender.

At present the Home Office are tagging people who are released from detention. However, from January 2022 there are plans to tag people when they arrive in the UK. Media have recently reported on the Home Office intention to make “working-age people wear tags while their asylum claims are processed” in order to make it harder for them to work illegally during this period."

This is particularly pertinent given the potential for the Home Office to use location data, including the proposed use of GPS tag location tags, to make decisions in immigration applications. This can lead to spurious, unfair and somewhat arbitrary decisions about asylum seekers who use Article 8 (which is about the ‘respect for your family and a private life’) as the basis of their asylum claim. For example, the Home Office could use location data to argue ‘you talk about your family life, but we can see that you never take your children to school’, ‘you are never at home at weekends, so you’re clearly not spending time with your family’ etc. So, there is a grave potential for location data to be used by the Home Office to make spurious inferences and turn down applications.

Conclusion

The delivery of justice is dependent on the integrity and accuracy of evidence and trust that society has in it.

As noted by the Regulator, forensic science is a critical and important part of criminal investigations and the administration of justice, not only to identify offenders and provide expert evidence to the courts, but it is one of the strongest safegaurds against false allegations and wrongful conviction.

Forensic science examinations carry significant risks and the consequences of quality failure can be profound. The purpose of forensic sicnce regulation is to minimise the risk of quality failure and ensure that accurate and reliable scientific evidence is used in criminal investigations and in criminal trials.

As migrants are increasingly subjected to data intensive surveillance techniques, we must ensure they are not also victims of miscarriages of justice due to unreliable data.

*Open Rights Group, the3million, BID, CARAS, RAMFEL, Fair Trials International and the William Gomes Podcast.

** No information is given about the referrals i.e. which government department they relate to.