Judgement finds that Home Office policy breached human rights laws

Credit: Piqsels

The Home Office unlawfully seized thousands of mobile phones from asylum seekers arriving in the UK by small boat, the High Court has ruled.

Three asylum seekers – known only as HM, KH and MA, one of whom has been recognised as a potential victim of trafficking – filed a judicial review against the Home Office at the High Court.

All three arrived in Dover between April and November 2020. Having been searched on arrival, they were compelled to hand over their mobile phones and provide their PIN numbers. The High Court said the Home Office’s secret, blanket policy of seizing, retaining and extracting data from migrant’s phones breached human rights laws.

Nearly 2,000 phones were taken in total, with home secretary Priti Patel eventually conceding that the blanket policy was unlawful.

Lucie Audibert of campaign group Privacy International, which intervened to provide support to the claimants, said the Home Office had “unashamedly granted itself unlawful powers to systematically seize and search their phones, even when they weren’t suspected of any crime”.

The asylum seekers were searched by immigration officers and had their mobile phones seized and retained without being allowed to tell family and loved ones that 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.

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It was only after the threat of legal proceedings, months after the phones were taken, that the Home Office returned the devices. Vulnerable asylum seekers were left unable to contact loved ones and facing huge practical difficulties as they attempted to navigate a new country.

The Home Office had claimed that section 48 of the Immigration Act (2016) empowered the department to search the arrivals and seize and retain their phones and extract data from them, but the court said the legislation does not authorise personal searches.

The blanket seizing of phones violated Article 8 of the European Convention on Human Rights, the High Court said.

Patel initially denied the existence of any policies relating to the seizure of mobile phones of asylum seekers arriving by small boat. However, the home secretary belatedly admitted that a blanket and unpublished policy of seizing all mobile phones had operated in 2020.

She subsequently further admitted that, until at least July 2020, there had been a policy of extracting a huge quantity of personal data, which has then been retained by the Home Office, from every phone seized.

Clare Jennings of Gold Jennings, which provided legal representation for HM, said the “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.”

The court said the Home Office had breached its ‘duty of candour’ by failing to be open and honest about the existence of the secret and blanket policy in the early stages of proceedings.

The court will hold a further hearing to decide what compensation should be provided to the three claimants, and what consequences there should be for the department’s failure to be honest and open when responding to the claims.

The home secretary also admitted the department had referred itself to the Information Commissioner’s Office for breaches of the Data Protection Act. As a result, the court did not rule on the issue of whether the seizure and extraction of phones breached the act.

A Home Office spokesperson said: “Channel crossings are an overt abuse of our immigration laws but they also impact on the UK taxpayer, risk lives and our ability to help refugees who come to the UK via safe and legal routes.  It is paramount that we continue to go after those facilitating dangerous crossings. We are considering the judgment and it would be inappropriate to comment further at this stage.”