High Court to hear asylum seekers’ challenge to Home Secretary’s policy of seizing mobile phones from boat arrivals and extracting data

Today the High Court will hear a judicial review challenge to the Secretary of State’s secret and blanket policy of seizing the mobile phones of all migrants who entered the UK by small boat between April 2020 and November 2020. Arrivals were also told, wrongly, that they needed to provide their PIN numbers and until July 2020 the Home Office’s policy was to extract huge quantities of data from all seized phones. A failure by the Home Office to implement an effective process for returning phones, meant that asylum seekers waited many months for their phones to be returned.

This claim for judicial review is brought by 3 claimants – HM represented by Gold Jennings (“GJ”), and KA and MH represented by Deighton Pierce Glynn (“DPG”), who arrived in the UK between April and September 2020.

The Secretary of State has already admitted, on a limited basis, that her policies of seizing mobile phones and extracting personal data was unlawful and breached human rights and data protection laws. A Divisional Court will this week consider the full extent of the Home Secretary’s powers and the lawfulness of her policies.

The Claimants

The Claimants are three asylum seekers, one of whom has been recognised as a potential victim of trafficking.

All three had their phones seized between April and September 2020 when they arrived in the UK. In common with the thousands of others who arrived during this period, their phones were taken almost immediately after they arrived, and before they had the opportunity to tell loved ones they had arrived safely or to take a note of contact details stored in their phones. The Claimants all received phone receipts that told them that it was an offence not to provide the PIN number for their phones. The same receipts also provided contact details for requesting the return of their phones. However, the telephone number given was rarely ever answered, and emails were not responded to. It was only after this litigation was commenced were the Claimants phones returned, for MA and KH that was nearly a year after their phones were first taken.

Impact on the Claimants

The seizing of their phones has had a significant impact on the Claimants and the others in the same situation as them. It has left vulnerable asylum seekers unable to contact loved ones, and created practical difficulties for them as they attempt to navigate a new country.

The legal proceedings

The claim raises fundamental issues about the use of police powers by the Home Office. It is alleged in this challenge that the Home Office’s policies of seizing phones, taking PIN numbers and extracting data is unlawful because there is no legal power to do so;  that the policies were unlawful because they operated in blanket fashion and were unpublished; that the policies breached the Claimants’ Article 8 and Article 1 of 1st Protocol 1, of the European Convention on Human Rights, and the extraction and processing of personal data breached data protection laws.

Initially the Defendant denied the existence of any policy of seizing mobile phones, but following the grant of permission to proceed with HM’s judicial review, the Defendant admitted the existence of such policy and apologised for her mistake in not disclosing it sooner. MA and KH’s claim, which had initially been stayed behind HM, was joined with HM in November 2021.

Privacy International, a leading NGO on data and privacy issues have been granted permission to intervene in the judicial review.

Both claims will now proceed together to be heard by a Divisional Court over 4 days this week (from 2pm on 25 January to 28 January 2022).

Clare Jennings of Gold Jennings, says:

“It is extraordinary and deeply concerning that the Secretary of State should adopt a secret blanket policy of seizing mobile phones, and for a period of time removing all data, from all asylum seekers arriving by small boat. Not only is this an assault on civil liberties, but it also had a profoundly negative impact on HM and other vulnerable asylum seekers like him. Our clients could not let their friends and family know they had survived the perilous journey to the UK, they lost contact with loved ones and were left isolated and alone in the UK. I hope that this case will shine a light on the Home Office’s actions and help protect these fundamental rights in the future.”

Daniel Carey of DPG says:

“Hundreds of migrants have had their phones unfairly confiscated in this way, with a really serious impact at a very vulnerable time. Our clients struggled to reach loved ones worried about their safe arrival, and to access legal advice for their asylum claims in the UK during the covid-19 lockdown. I hope the court will rule that the policy was unlawful and bring much needed scrutiny to what was done with these phones and the personal information that was on them.”

HM is represented by Clare Jennings, Director and Olivia Halse, Associate Solicitor at Gold Jennings – www.goldjennings.co.uk. For further enquiries please contact clare@goldjennings.co.uk and olivia@goldjennings.co.uk or call 0208 445 9268. Counsel for HM is Tom de La Mare QC, Jason Pobjoy, Gayatri Sarathy at Blackstone Chambers.

KH and MA are represented by Dan Carey Partner, and Olivia Duffield (Trainee Solicitor) of Deighton Pierce Glynn. Counsel for KH and MA are Tom Hickman QC of Blackstone Chambers, Bernadette Smith of 1 Mitre Court Buildings and Julianne Kerr Morrison of Monckton Chambers.

Hearing details

Hearing listed from 24 – 28 January 2022

R (HM) v Secretary of State for the Home Department (CO/4793/2020) and R (MA and KH) v SSHD (CO/577/2021)