The High Court has held that the Home Office’s search for and seizure of mobile phones from migrants who arrived by small boats from France, and the retention of extracted data, was unlawful. The case is R (HM, MA, KH) v Secretary of State for the Home Department [2022] EWHC 695 (Admin).

The judgment is long and dense, containing very detailed consideration of the complex powers in immigration legislation relating to the search of people and premises, and the seizure of property. Lord Justice Edis and Mr Justice Lane ultimately found against the Home Office because its actions were taken pursuant to an unlawful blanket unpublished policy rather than being authorised by that legislation.

Background

The claimants had arrived by small boat in 2020. Their mobile phones were seized on arrival. They were served with notices stating that they were required to provide the PIN code and that it was an offence to fail to provide the login details.

All three phones had eventually been returned. MA had the data from his phone fully extracted — the Home Office still retains it — while KH had the data from his SIM card extracted.

Concessions

During the course of the proceedings the Home Office made a number of significant concessions:

1. Between April and November 2020 the department had operated a blanket policy at Tug Haven short term holding facility in Dover to seize mobile phones from all migrants arriving by small boat. This policy was unlawful because it was blanket in nature – “officers did not turn their minds to whether the statutory powers of seizure were met, in any particular case” – and because it was unpublished. The department acknowledged that the precise origins of this policy were unknown, leading the court to comment that there must be “some doubt as to when the unlawful policy began”.
2. The retention policy which provided for phones to be retained for at least three months was unlawful because it had the potential to disproportionately interfere with human rights and data protection rights.
3. The extraction policy which allowed for the complete extraction of data from every mobile phone seized did not comply with the European Convention on Human Rights or Data Protection Act 2018.
4. Requiring migrants to provide the PIN numbers for their phones on pain of criminal prosecution unlawful.
5. The relevant Data Protection Impact Assessments did not properly assess the risks to the rights and freedoms of data subjects and so were unlawful.

The effect of these concessions was to accept that the claimants’ phones were seized and retained unlawfully; that extraction of data (from MA’s phone and KH’s SIM) was unlawful; and that the claimants’ ECHR and data protection rights had been breached.

The court nevertheless decided a number of important issues on immigration enforcement powers.

Breach of the duty of candour

In pre-action correspondence and summary grounds of defence, the Home Office had denied the very existence of the policy at issue. The department later accepted that this position was “inadvertently inconsistent with the duty of candour”, offered an “unreserved apology” and “sought, apparently unsuccessfully, to understand how the error came to be made”.

The court has ordered a further hearing to decide what, if anything, to do about this.

Powers of search and seizure

Under the Immigration Act 1971

Paragraph 25B of Schedule 2 to the Immigration Act 1971 allows immigration officers to search and seize property from migrants detained for the purpose of examination. The target of these powers is items that may be used to cause physical injury or for escape.

The court held that the claimants were not searched under this provision; they were searched pursuant to the unpublished blanket policy operated at the time. However, it suggested that it would be open to immigration officers use paragraph 25B to search migrants arriving by small boat:

As a general matter, the defendant is entitled to use paragraph 25B(2) to search a person who has arrived by small boat. The words ‘reasonable grounds for believing that the arrested person may present a danger to himself or others’ set a low bar for the exercise of the power. The immigration officer considering whether to carry out search has an obligation to consider his own safety and that of others who may encounter the arrested person while he is in custody.

But even if para 25B allows for a search, it may not empower the officer to seize a mobile phone. And once the person has been released, there is no power to retain anything seized. The court concluded that para 25B was “not an apt statutory framework for what was being done in the time of the blanket policy.”

Under the Immigration Act 2016

Section 48 of the Immigration Act 2016 gives immigration officers the power to seize items for the purpose of preserving evidence for criminal proceedings. The Home Office argued that this allowed for the seizure of property found during a search exercised under a different provision (such as para 25B).

The court disagreed, holding that in order for the power of seizure under this provision to arise, the immigration officer had to lawfully be on “premises”. It did not permit the seizure of property during a personal search.

In response to a warning from the department’s counsel that this “interpretation of section 48 may have serious consequences for the defendant, not least in tackling the plainly serious problems caused by the exponential growth in unauthorised arrivals of migrants by small boats from France”, the court observed that:

If Parliament sees a need for further legislation to address the problem, then it is for Parliament to do that, and not for the executive to assume powers on the basis of an impermissible construction of existing legislation.

The court did accept the argument that section 48 allows immigration officers to seize phones in order to ascertain at a later date whether they contained evidence of any offences. But this would not assist in the context of small boat arrivals because of the court’s finding that the seizure powers only apply where an immigration officer is lawfully on premises (e.g. during a raid) and not to personal searches. In this situation, immigration officers will not be able to seize a phone where they have reasonable grounds for believing that it contains material that is subject to legal professional privilege.

Consequences and implications

The court will decide what relief should be granted to the claimants at a later hearing (as well as what should be said or done about the department’s breach of its duty of candour).

Migrants who arrived by small boat during the period of the blanket seizure policy prior to November 2020 should have their mobile phones restored to them and may be able to claim damages. Consideration will need to be given to the one-year limitation period under the Human Rights Act 1998, including when the breach came to an end and whether there are grounds for it being extended.

The court suggested, albeit whilst explicitly not deciding the point, that the relevant statutory provisions allow immigration officers to routinely search migrants arriving by small boat. The precise scope of the powers of seizure remain unclear but it is clear that any items seized cannot be retained once migrants are released from custody. The judgment also clarifies that immigration officers do have powers when they are lawfully on premises to seize mobile phones in order to later sift them for evidence for criminal proceedings.

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