Relief will be determined in a hearing at the end of June 2022 in the case of R (on the application of HM) v Secretary of State for the Home Department; R (on the application of MA and another) v Secretary of State for the Home Department (Privacy International intervening) [2022] EWHC 695 (Admin) which was heard earlier this year.  The case potentially affects thousands of migrants who may be entitled to damages after they were subjected to unlawful policies and practices when they arrived to the UK by small boat and subsequently had their phones seized, their data downloaded, retained and who were then prevented from copying numbers to contact loved ones after crossing the Channel safely.

The case concerned the Home Office’s operation of a secret policy whereby officers were to search all migrants arriving by small boat to the UK; to seize and retain their phones without allowing access to the contents, and to download all data under a secret, blanket policy.  The policy was in operation until November 2020.

The Home Office’s starting position was that no secret, blanket policy existed: it was many months before they admitted they had breached their duty of candour to the Court.  This breach of the duty of candour is due to be considered at the upcoming hearing.

There were other further significant concessions secured, including an acceptance that demanding a PIN on threat of a non-existent criminal offence was unlawful.   Moreover, not only was the seizure and retention of the devices conceded to be unlawful under Article 8 ECHR and the Data Protection Act 2018 as a result of being operated under a blanket policy, but the subsequent complete extraction of the data from the mobile phones was unlawful under the Data Protection Act 2018.

The Claimants went on to successfully argue that the Defendant’s actions were not only unlawful by reason of the policy but also because the Home Office was acting unlawfully by going beyond the legislative power by exceeding the limits set out in section 48 of the Immigration Act 2016 (upon which it relied for the seizure and retention of phones), which authorises the search of premises and the subsequent seizure of items found on the premises, as distinct from a person.

Bernadette Smith was instructed by Deighton Pierce Glynn in this matter.  Geeta Koska and Alex Bennie provided research assistance during the case.

Bernadette recently spoke about the case at Public Law Project‘s conference, Data Law for Public Lawyers, Public Law for Data Lawyers.