17 Oct High Court rules that a failure of governance allowed the Home Secretary’s unlawful phone seizure policy to operate

Following the previous ruling that the Home Secretary’s secret and blanket policy of seizing mobile phones and extracting data from migrants arriving by small boat was unlawful, the High Court on Friday 14 October 2022 took the unusual further step of holding another hearing to consider the Defendant’s conduct in the case. That followed the Defendant initially failing to disclose in pre-action correspondence and summary grounds of defence the policy that they later admitted was unlawful. The Defendant had admitted and apologised for breaching her duty of candour, but the High Court were sufficiently concerned that this further hearing was held to consider the issue.

In Friday’s hearing Lord Justice Edis and Mr Justice Lane found that there had been a collective failure of governance that allowed an unlawful policy to operate, and that the Defendant’s collective errors of judgment led to the Defendant failing to disclose at the early stages of the litigation the unlawful policy. In their judgment the High Court emphasised the importance of the duty of candour and the need for Defendants to ensure that they provide all relevant information necessary to allow the Court to adjudicate on an issue. In this case the High Court held that there were at least two, very serious and highly regrettable breaches of the duty of candour by the Defendant and that the Defendant’s responses at the early stage of this litigation were designed to avoid permission being granted to the Claimants. If they had succeeded with that aim, then this unlawful policy may never have come to light.

The High Court also ordered that the Home Secretary must inform all those who were subjected to the unlawful policy of search, seizure and data extraction that their rights had been breached. And the Defendant was told that the judgment and Court’s orders should be published on the Home Office’s website.

Written judgment following Friday 14 October hearing awaited.

Clare Jennings, Director at Gold Jennings, says as follows:

“We welcome the High Court’s recognition that there had been a failure of governance that allowed this unlawful policy to operate in the first place, and the collective errors of judgment which meant that the Defendant initially denied the existence of the policy. When our client HM and others first sought to challenge this policy, we were met with the response that our claims that there was a blanket policy of seizing mobile phones was just ‘anecdote and surmise’ and that we were embarking on an unjustifiable fishing expedition. But for our client’s brave persistence with this claim the full extent of the Defendant’s policy may never have come to light and there would have been no accountability for the Home Secretary’s operation of this unlawful policy. We hope that the Home Secretary will learn from this judgment so that the same collective errors of judgment that led to misleading claims being made about the existence of a policy will not be repeated in future cases.

We are also delighted that the Court has directed the Defendant to inform all those who were unlawfully searched and had their phone taken that their rights have been breached. Potentially thousands of phones were seized from vulnerable migrants, many of whom never got their phones back, with significant numbers having had a huge quantity of private information downloaded from seized phones. It is important and right that all those affected by this unlawful policy are told that their rights were breached and the Court’s ruling will help ensure that this happens”.

Notes to editors:

• HM is represented by Clare Jennings, Olivia Halse, Elinor Kirchwey, and Alexander Hogg of Gold Jennings and Thomas De La Mare KC, Jason Pobjoy, and Gayatri Sarathy of Blackstone Chambers.
• KH and MA are represented by Dan Carey and Olivia Duffield of Deighton Pierce Glynn. Counsel for KH and MA are Tom Hickman KC of Blackstone Chambers, Bernadette Smith of 1 Mitre Court Buildings, and Julianne Kerr Morrison of Monckton Chambers.
• Privacy International intervened in the case and were represented by Linklaters and Ben Jaffey KC of Blackstone Chambers.
• The judicial review is subject to an anonymity order which protects the Claimants’ identity.
• The full judgment in the substantive hearing can be found here: R (HM, MA, & KH) v Secretary of State for the Home Department [2022] EWHC 695 (Admin)

For further information please email info@goldjennings.co.uk or by telephone on 020 8445 9268