The storm raging around small boats arriving on the south coast has been brewing for some time. In early summer the focus was a policy to send arrivals to Rwanda. Intervention by the European Court of Human Rights effectively suspended flights while a domestic ruling on the policy's legality is awaited. Meanwhile, in Dover a migrant processing centre has been firebombed, another is dangerously overcrowded, and the new Home Secretary raises tensions by speaking of an "invasion".
Amidst this swirl is an eye-catching Divisional Court Decision about a secret and unlawful Home Office policy to seize and download data from the mobile phones of all those arriving in small boats. The substantive Judgment in R (HM, MA and KH) v Secretary of State for the Home Department [2022] EWHC 695 (Admin) was delivered on 25 March 2022, followed by an Order distilling the Court's conclusions on 18 October 2022.
Two of the Claimants, MA and KH, arrived at Dover Western Docks in May 2020, escorted by Border Force officials. HM arrived in September 2020. In common with other arrivals, the Claimants were medically assessed then arrested pursuant to Schedule 2 to the Immigration Act 1971. They were each searched and their phones were seized. The data on MA and KH's phones was extracted and retained. It took almost a year for their phones to be returned. HM's phone was returned after the proceedings.
Before the Claims were issued, the Defendant denied the existence of a blanket policy to seize mobile phones, dismissing the contention as being "based on anecdote and surmise". The denial was maintained in the Defendant's Summary Grounds but its Detailed Grounds accepted that between April and November 2020 such a policy was operated. It was said to have developed "organically" as a practice of the teams tasked with investigating immigration crime and enforcement and identifying the criminal networks responsible for facilitating crossings. This late acceptance of the policy led the Court to find a serious breach of the duty of candour.
By the time of the substantive Hearing in January 2022, the Defendant had conceded the bulk of the claim and the central allegations of illegality. By reason of their blanket nature and being unpublished, the seizure policies were not "in accordance with law" and accordingly breached Article 8 of the ECHR and the Data Protection Act 2018. The retention and extraction policies also breached the ECHR and DPA 2018.
When the Claimants' phones were seized they were each handed a "receipt". These asserted that seizure was pursuant to s48 of the Immigration Act 2016 "as the phones were "believed to contain evidence in relation to immigration offences". The text continued "You are lawfully required to provide the officer seizing the phone the PIN/security code which unlocks it. It is an offence to fail to provide these details". In fact, as the Defendant conceded later, there is no such requirement in the absence of the express permission of a judge under s.49 of the Regulation of Investigatory Powers Act 2000 (RIPA).
As they were operating a blanket policy, the Defendant's officers did not turn their minds to whether powers granted by the Immigrations Acts were applicable in any particular case. However, the scope of those powers – in particular to search those arrested and to seize property from them – remained a live issue between the parties on which the Court was invited to rule.
Statutory powers of search and seizure
Paragraph 25B of Schedule 2 of the Immigration Act 1971, grants a limited power of search if an officer has reasonable grounds for believing the arrested person may present a danger to himself or others; or may have things which he might use to escape custody. However, the Court found, the Claimants were not searched under these provisions. There was nothing to suggest those arriving wished to escape custody. On the contrary, many of them intended to claim asylum and escaping would defeat that objective. Accordingly, this was not an apt legal framework for the policy.
The Defendant also argued that section 48 of the Immigration Act 2016, while explicitly authorising the search of premises, impliedly authorised search of the person and the power to seize items that came to light.The Court disagreed. Section 48, it found, was closely modelled on s.19 of the Police and Criminal Evidence Act which authorised search of premises but not the person.
The Court's conclusion was reinforced by applying the principle of legality: namely that fundamental rights cannot be overridden by general or ambiguous statutory words (per Lord Hoffman in R v Home Secretary Ex p Simms [2000] 2 AC 115,131). The Court held held that:
"Parliament must be taken to know that clear words are required to authorise a non-consensual search of the person and to have appreciated that their absence from section 48 was because no such power was being granted."
Paragraph [89]
The outcome
On behalf of the Defendant, Sir James Eadie warned of the serious consequences of a restrictive interpretation of s.48 notably in tackling the "exponential growth in unauthorised arrivals" on small boats. The Court rejected the submission. The option remained to call in the police. But if Parliament saw a need for further legislation then it was for Parliament to enact it, "not for the executive to assume powers on the basis of an impermissible construction of existing legislation" (at [92]).
After the Court's substantive Judgment the parties agreed a level of damages payable to the Claimants (which remains confidential).
The Court convened again in October to further consider remedies and the Defendant's duty of candour breach. Judgment on this issue is awaited but the Court produced its Order, identifying past illegality and the lawful scope of search and seizure in this context. Further and usually, the Court:
- ordered the Home Secretary to publish an electronic copy of the Order (with a link to the Judgment) on a Home Office website for a period of at least a year
- required the Defendant to "use all reasonable endeavours" to bring the Judgment and Order to the attention of those subject to the unlawful policy; and
- imposed a punitive costs order on the Defendant: costs on an indemnity basis up to the date it conceded the claim and thereafter on a standard basis.
Comment
We lawyers try to avoid hyperbole but the Court's Judgment and Order are a stinging and costly rebuke. Inevitably there will be other claims and rightly so, as the Court made clear. Pending the Court's final Judgment, it is unclear how the whole debacle came to pass: the operation of an unlawful policy and the government's initial denial of it. The March Judgment does however offer clues. Documents in the case referred to officials being contacted daily by Home Office Ministers to "check" their "progress" in obtaining information about criminal organisers. There are echoes here of the Windrush scandal: political pressure for "results" leading officials on the ground to freelance and act unlawfully.
As this post explains, these claims successfully identified and ended an unlawful policy. Arguably though, the importance of the Courts' Decisions is far wider. At a time when politicians seek to curtail judicial scrutiny of the Executive's acts, the case provides a neat illustration of the Courts fulfilling their vital constitutional role to uphold the rule of law.