Press Release: High Court rules seizing and retaining mobile phones from asylum seekers unlawful

Today, the High Court ruled that the Home Secretary acted unlawfully and breached human rights and data protection laws by operating a secret, blanket policy of seizing, retaining and extracting data from the mobile phones of asylum seekers arriving by small boat.

This claim for judicial review was brought by three asylum seeking claimants: HM represented by Gold Jennings, and KA and MH represented by Deighton Pierce Glynn. The Claimants, like thousands of others arriving by small boat, all had their mobile phones seized upon their arrival in the UK, with KA and MH, and hundreds of others, having had vast amounts of their data extracted from their phones. The Claimants phones were only returned after this litigation was commenced. Privacy International intervened in the case.

Background

The Claimants are three asylum seekers, one of whom has been recognised as a potential victim of trafficking.

All three had their phones seized between April and September 2020 when they arrived in the UK. Immediately after arrival, they were searched by immigration officers and had their mobile phones seized and retained without being allowed to tell family/loved ones they had arrived safely or note down any important contact numbers stored in their phones. They were provided with standard notices upon arrival which, wrongly, threatened criminal penalties unless they provided the PIN numbers to unlock their phones. It was only after threat of legal proceedings, months after the phones were taken, that the Claimants had their mobile phones retuned.

The seizing of the phones had a significant impact on the Claimants and the others in the same situation as it left these vulnerable asylum seekers unable to contact loved ones, and created huge practical difficulties for them as they attempted to navigate a new country.

Initially the Home Secretary denied the existence of any policies relating to the seizure of mobile phones of asylum seekers arriving by small boat. However, following the grant of permission in HM’s case, the Home Secretary belatedly admitted that a blanket and unpublished policy of seizing all mobile phones had operated in 2020. It was subsequently further admitted that until at least July 2020, there had been a policy of extracting a huge quantity of personal data from each and every phone seized, with extracted data continuing to be retained by the Home Office.

During this litigation, the Secretary of State went on to make significant concessions that her blanket and unpublished policy of seizing phones, demanding PIN numbers, extracting data and retaining seized phones for lengthy periods was unlawful. It was also revealed that the Home Secretary has self-referred herself to the Information Commissioner’s Office (“ICO”) for breaching data protection law, though decided not to inform the hundreds if not thousands of individuals affected that their data protection rights had been breached.

However, despite these concessions, the Home Secretary maintained that section 48 of the Immigration Act 2016 empowered her to search new arrivals by small boat and seize and retain their phones and extract data from them. From 24 – 28 January 2022, the High Court considered arguments as to the extent of the Home Secretary’s powers of search and seizure and how this had breached human rights and data protection law.

The Judgment

A Divisional Court handed down judgement today allowing the claims for judicial review.

The Court agreed that the Defendant was right to concede that the secret and blanket nature of the Home Secretary’s policies meant that the seizure, retention and extraction of data from phones was unlawful and breached data protection and human rights laws. However, significantly, the Court further held that section 48 of the Immigration Act 2016 (which the Home Secretary had relied upon as the legal power to search the asylum seekers and seize their phones) could not be used to carry out personal searches and as a result the searches of the Claimants and the subsequent seizures of their phones was unlawful for this reason too. The Court also rejected the Defendant’s argument at trial that the phones had been seized pursuant to powers under Paragraph 25B of Schedule 2 of the Immigration Act 1971 which allowed immigration officers to seize items that they reasonably believed may present a danger to themselves or others, or could assist a person to escape, and commented that this appeared to be an “ex post facto” justification for their action.

Significantly, the Court also found that the Home Secretary’s secret and blanket policy of seizing the mobile phones, retaining them and extracting the data of the asylum seekers infringed their right to family and private life under Article 8 of the ECHR.

The Home Office’s demand of mobile phone PIN numbers under threat of criminal sanctions, was also found to be unlawful and a further breach of the Claimants’ human rights.

The Judges, whilst accepting the concessions that the Defendant had already made that they had breached data protection law, declined to rule further on the data protection issues noting that the Information Commissioner’s Office would now be investigating the matter following the Home Secretary’s self-referring her data breach.

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 candor in belatedly providing information about her policies and in relation to her self-referral to the ICO.

Representatives

Clare Jennings of Gold Jennings says:

“I am delighted that the High Court has today upheld the rights of the Claimants, and the thousands of other asylum seekers like them, who had committed no crime but who were nevertheless subjected to this blanket and secret policy of having to hand over their mobile phones and PIN numbers immediately upon arrival causing them significant emotional and practical hardship. But for this litigation the Home Secretary’s policies would have remained shrouded in secrecy, including the fact that for many months the entire contents of a person’s mobile phone – text messages, photographs, contacts etc. – were being extracted and possibly shared with third parties. Such systematic extraction of personal data from vulnerable asylum seekers, who were not suspects in any crime, was an astonishing and unparalleled assault on fundamental privacy rights. Today’s judgment provided much needed clarification as to the extent of immigration officers powers of search and seizure and confirmed beyond doubt that the Home Secretary’s policy of seizing all mobile phones from small boat arrivals was unlawful.”

Daniel Carey of Deighton Pierce Glynn 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."

Lucie Audibert of Privacy International says:

"It's quite clear that the Home Office considered that asylum seekers arriving on UK shores did not have the same privacy rights as other people – it unashamedly granted itself unlawful powers to systematically seize and search their phones, even when they weren't suspected of any crime. This is in line with this government's (and many others') efforts to criminalise migration and rob migrants of their basic human rights. We welcome today’s judgment and hope the claimants will obtain due redress for these unacceptable violations of their rights."

HM is represented by Clare Jennings, Director, and Olivia Halse, Associate Solicitor, at Gold Jennings – www.goldjennings.co.uk. Counsel for HM is Tom de La Mare QC, Jason Pobjoy, and Gayatri Sarathy of Blackstone Chambers.

KH and MA are represented by Dan Carey, Partner, and Olivia Duffield, Trainee Solicitor, of Deighton Pierce Glynn. Counsel for KH and MA are Tom Hickman QC of Blackstone Chambers, Bernadette Smith of 1 Mitre Court Buildings and Julianne Kerr Morrison of Monckton Chambers

Privacy International, a leading NGO on data and privacy issues, was granted permission to intervene in the judicial review. Privacy International was represented by Tom Cassels, Partner, Rebecca Dickie, Managing Associate, and Emma Kate Cooney, Associate, of Linklaters LLP. Counsel for Privacy International are Ben Jaffey QC and Tom Lowenthal of Blackstone Chambers.

R (HM) v Secretary of State for the Home Department (CO/4793/2020) and R (MA and KH) v SSHD (CO/577/2021)