The Divisional Court (Lord Justice Edis and Mr Justice Lane) have handed down an important judgment concerning the legality of the Government’s policy to search, seize and retain data from the mobile phones of migrants arriving by small boat.
Prior to the hearing, the Secretary of State made a series of concessions (Judgment, §6):
1. The seizure policies under challenge were unlawful by virtue of (i) their general (or ‘blanket’) nature, and (ii) being unpublished.
2. The version of the retention policy which provided for phones to be retained for a minimum period of 3 months was capable of giving rise to a disproportionate interference with rights under the ECHR and data protection legislation and, as such, was unlawful.
3. The version of the extraction policy which permitted the complete extraction of every mobile phone seized did not comply with the ECHR or the Data Protection Act 2018 and, as such, was unlawful.
4. The practice pursuant to which officers required or attempted to require migrants to provide the PIN numbers for their phones was unlawful.
5. The Data Protection Impact Assessments did not properly assess the risks to the rights and freedoms of data subjects and, as a result, were unlawful.
The effect of those concessions was that each of those claims succeeded, and that the Claimants’ phones were seized and retained unlawfully (Judgment, §§6-7).
In respect of the issues before the Divisional Court, they held as follows:
1. Paragraph 25B of Schedule 2 to the Immigration Act 1971 permitted the search of persons who arrived by small boat (Judgment, §56). However, the Claimants were not in fact searched under paragraph 25B(2) or (3)(a). The Secretary of State’s case to the contrary was ex post facto reasoning (Judgment, §55).
2. Section 48 of the Immigration Act 2016, on its proper construction, only permitted searches of premises, not persons (Judgment, §§77-92). Section 48 also did not permit re-seizure of things found and seized by an immigration officer exercising powers under para 25B of Schedule 2 (Judgment, §§93-107).
3. Section 48(7) conferred a power to sift a mobile phone which has been seized pursuant to s.48(3) for the purposes of ascertaining whether it contains evidence of an offence (Judgment, §§128-134).
The Divisional Court did not determine whether the extraction and processing of data was inconsistent with the ECHR and/or the DPA 2018 on the grounds that the policies had been replaced and the challenge was therefore academic (Judgment, §§9, 136-139).
The Divisional Court directed a further hearing to determine consequential matters and the extent and consequence of the Secretary of State’s failure to comply with her duty of candour in relation to the unlawful policy and other alleged breaches of the duty of candour (Judgment, §§1, 140).
The judgment can be found here.
Tom de la Mare QC, Jason Pobjoy and Gayatri Sarathy acted for HM, instructed by Gold Jennings.
Tom Hickman QC acted for MA and KH, instructed by DPG.
Sir James Eadie QC and Celia Rooney acted for the Secretary of State for the Home Department, instructed by GLD.
Ben Jaffey QC and Tom Lowenthal acted for the Intervener, Privacy International, instructed by Linklaters LLP.