The three claimants arrived on small boats between April and September 2020. They were immediately searched by immigration officers, had their mobile phones seized and retained and were ordered to provide their PIN under threat of criminal penalties. This was done as part of a blanket and unpublished Home Office policy.
The Home Secretary initially denied the policy existed but later admitted it did. She argued the Immigration Act 2016, s 48 empowered her to search arrivals, seize phones and extract data, but later conceded the policy was unlawful, and informed the court she self-referred to the Information Commissioner’s Office in July 2021 for breaching data protection law.
Ruling in R (HM) v Home Secretary [2022] EWHC 695 (Admin), Lord Justice Edis and Mr Justice Lane held the policy was unlawful and breached data protection and human rights laws (Art 8). They held s 48, Immigration Act 2016 could not be used to carry out personal searches, and also rejected Home Office arguments at trial that the phones had been seized under para 25B of Sched 2 of the Immigration Act 1971 (items that could present a danger or assist a person to escape). They stopped short of ruling further on data protection issues since the Information Commissioner’s Office is now investigating the matter. A further hearing will now take place to decide remedies and consider breaches of the Home Secretary’s duty of candour.
Clare Jennings, director, Gold Jennings, representing HM, said: ‘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.’
Daniel Carey, partner, Deighton Pierce Glynn, representing KH and MA, said: ‘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.’
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