13 Oct Tomorrow (14 October), the High Court will consider the Home Secretary’s breaches of her duty of candour for initially denying the existence of a blanket policy of seizing asylum seekers’ mobile phones, a policy she later admitted was unlawful

In a landmark judgment in R (HM, MA, & KH) v Secretary of State for the Home Department [2022] EWHC 695 (Admin) in March of this year, the High Court held that the Home Office’s blanket and secret policy of seizing mobile phones from asylum seekers arriving by small boat during 2020 was unlawful. The policy resulted in nearly 2,000 phones being seized, data being indiscriminately extracted from a great number of seized phones, and many phones have still not been returned.

However, despite the Home Secretary subsequently admitting her mobile phone seizure policy was unlawful, the Defendant initially, in breach of her duty of candour, denied the existence of any such policy claiming that the Claimant, HM’s, “assertion of a ‘blanket policy’ was ‘based on anecdote and surmise’. Even after HM issued judicial review proceedings the Defendant did not resile from this position. It was only many months later, once permission had been granted for HM’s claim to proceed, did the Defendant finally admit that this policy existed and was unlawful. The Defendant has since offered an “unreserved apology” for this breach and has “sought, apparently unsuccessfully, to understand how the error had come to be made”.

At tomorrow’s hearing, Lord Justice Edis and Mr Justice Lane will consider the “extent and consequences” of the Defendant’s apparent failure to comply with her duty of candour and to “decide what should be said or done about that”. The hearing will also consider what orders should be made in consequence of the Claimants’ success.

Clare Jennings, Head of Public Law at Gold Jennings, who acts for HM says:

“This is an important hearing in which the High Court will consider what to do about the Defendant’s failure to provide full and fair disclosure of the facts in these proceedings in breach of her duty of candour. The rules are clear: judicial review must be conducted with “cards face upwards” and all parties have a duty to the Court to disclose relevant facts, even if this could harm their own case. Had the High Court not granted HM’s judicial review permission to proceed, the Defendant’s secret and unlawful policy, which detrimentally impacted on thousands of vulnerable asylum seekers, may never have come to light.

Notes to editors:

1. 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.
2. 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.
3. The judicial review is subject to an anonymity order which protects the Claimants’ identity.
4. 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)
5. For further information please email info@goldjennings.co.uk or by telephone on 020 8445 9268