The Queen (on the application of HM) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Edis LJ,Lane J |
| Judgment Date | 25 March 2022 |
| Neutral Citation | [2022] EWHC 695 (Admin) |
| Docket Number | Case No: CO/4793/2020 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 695 (Admin)
Lord Justice Edis
Mr Justice Lane
Case No: CO/4793/2020
CO/577/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
IN AN APPLICATION FOR JUDICIAL REVIEW
Royal Courts of Justice
Strand, London, WC2A 2LL
Thomas de la Mare QC, Jason Pobjoy and Gayatri Sarathy (instructed by Gold Jennings, on behalf of HM)
Tom Hickman QC, Bernadette Smith and Julianne Kerr Morrison (instructed by Deighton Pierce Glynn, for MA and KH)
Sir James Eadie QC, Alan Payne QC, Celia Rooney, Remi Reichhold and Emmeline Plews (instructed by Government Legal Department)
Ben Jaffey QC and Tom Lowenthal (instructed by Linklaters, on behalf of the Privacy International)
Hearing dates: 25, 26, 27, 28 January 2022
Further written submissions on 2, 15 and 25 February 2022
This judgment was handed down remotely by circulation to the parties' representatives by email and released to BAILII. The date and time for hand-down is deemed to be 10:30am on Friday 25 March 2022.
Edis LJ and
This is the judgment of the court to which we have both contributed. It contains the following sections:-
Section A. Introduction, paragraphs [1]–[9]
Section B. Background, paragraphs [10]–[13]
Section C. The Individual Cases, paragraphs [14]–[31]
Section D. The Unlawful Policy, paragraphs [32]–[43]
Section E. Paragraph 25B of The Immigration Act 1971, paragraphs [44]–[57]
Section F. Section 48 of the Immigration Act 2016, paragraphs [58]–[111]
Section G. Powers To ‘Seize and Sift’, paragraphs [112]–[134]
Section H. ECHR Article 8, paragraph [135]
Section I. The Balance of the Claims (Data Protection), paragraphs [136]–[139]
Section J. Conclusion [140]
Appendix A: Glossary and acronyms
Appendix B: Relevant Legislation
A: Introduction
These claims concern the search for and seizure of, and the retention of data taken from, the mobile telephones of individuals who arrived in the United Kingdom as migrants in small boats from France. The defendant has accepted that she operated an unlawful policy during the relevant period. That policy changed in certain respects during the relevant period, but it was unlawful in some material respects throughout. It is agreed that a further hearing, following this judgment, will be required to consider what relief is required and to address also the extent and consequences of an apparent failure by the defendant (for which the court has received an apology) to comply with her duty of candour when responding to these claims for judicial review. Her initial stance was that there was no policy of the kind which is now admitted, and which is also now admitted to have been unlawful.
The number of such small boat crossings grew rapidly in the course of 2018 and continues to rise. In 2021, 1034 small boats made the journey, carrying 28,526 people.
It is not in dispute that the organisation of the small boat crossings is, in large part at least, the work of criminal enterprises, which require payment for providing the potential migrant with a place in a small boat. Each such boat has to be under the control of at least one individual, who may have been a part of the criminal enterprise, perhaps only to a limited extent.
The defendant's response to the growth in small boat crossings involved a number of Home Office departments and units. These are described in the Glossary contained in Appendix A to this judgment. The information is drawn from that provided by the defendant. It does not appear that the claimants take any issue with its accuracy. Most of the acronyms used in this judgment (which feature throughout these voluminous papers) are explained there.
Appendix B to this judgment sets out the relevant legislation. Of particular significance are paragraph 25B of Schedule 2 to the Immigration Act 1971 (searching persons arrested by immigration officers), Appendix B page 7, section 48 of the Immigration Act 2016 (seizure and retention in relation to offences), page 20, section 50 of the Criminal Justice and Police Act 2001 (additional powers of seizure from premises), page 14, and section 19 of the Police and Criminal Evidence Act 1984 (general power of seizure etc.), page 11.
Concessions have been made by the defendant at various times from June 2021 and after a referral of a data breach by the defendant to the Information Commissioner's Office on 8 July 2021. The referral document itself was disclosed on 28 January 2022 as a result of a disclosure order made by the court during the substantive hearing. We shall say more about that at the end of this judgment. The current state of the issues following those concessions was described as follows by the defendant in her Skeleton Argument for the purposes of this hearing. We adopt this extract now for the purposes of explaining the present state of these claims. It records the very significant concessions which have been made. The effect of these concessions is that each of these claims succeeds, and that the issues we have to decide are limited. It is convenient to use one of the defendant's documents because they properly express the important concessions she has made. It reads (with some amendments to harmonise the language with that used in this judgment):-
“In final form the claimants' challenge is now brought on nine grounds:
Ground 1: The search of the claimants was unlawful in circumstances where the defendant's officers searched every person arriving by small boat and/or the statutory preconditions under paragraph 25B(2) and (3) of Schedule 2 to the Immigration Act 1971 were not met.
Ground 2: seizure of the Claimants' phones was unlawful where it was undertaken pursuant to a blanket policy and/or the statutory preconditions under paragraph 25B(6)-(7) and/or s.48 of the Immigration Act 2016 were not met.
Ground 3: The seizure of the Claimants' phones was Padfield unlawful, where it was carried out for the improper purpose of harvesting intelligence, and not for the statutory purposes in paragraph 25B and/or section 48 of the Immigration Act 2016.
Ground 4: The seizure and retention of the Claimants' phones was unlawful where it was undertaken in order to “ sift” through material for potential intelligence, without the necessary “ seize and sift” powers.
Ground 5: The PIN Policy, pursuant to which officers demanded PIN numbers both orally and through the provision of the ‘Phone Seizure Receipt’ documents, was unlawful, where PIN numbers were demanded under threat of (non-existent) criminal sanctions.
Ground 6: The Policies were generally unlawful because they were unpublished, and the relevant statutory powers were fettered by the blanket operation of the Policies.
Ground 7: The Seizure and Retention policies were contrary to Article 8 and/or Article 1 of the First Protocol (“A1P1”) of the ECHR.
Ground 8: The processing conducted pursuant to the Policies, including the seizure and retention of phones and the extraction of data (in the case of MA/KH) was contrary to the Data Protection Act 2018.
Ground 9: The extraction and further processing of data from MA/KH's phones represents a further breach of Article 8 ECHR.
The defendant has conceded that:-
The seizure policies under challenge (which in fact continued to be applied until November 2020) were unlawful by virtue of:- (i) their general (or ‘blanket’) nature, and (ii) being unpublished. As a result, the defendant concedes that the seizure policies under challenge:- (i) were unlawful, (ii) were ‘not in accordance with law’ for the purpose of the ECHR, and (iii) did not provide a lawful basis for the processing of data pursuant to Data Protection Act 2018.
The version of the retention policy which provided for phones to be retained for a minimum period of 3 months was capable of giving rise to a disproportionate interference with rights under the ECHR and data protection legislation and, as such, was unlawful.
The version of the extraction policy which permitted the complete extraction of every mobile phone seized did not comply with the ECHR or the Data Protection Act 2018 and, as such, was unlawful.
The practice pursuant to which officers required or attempted to require migrants to provide the PIN numbers for their phones (referred to by the Claimants as the “PIN Policy”), was unlawful.
The Data Protection Impact Assessments (“DPIAs”) did not properly assess the risks to the rights and freedoms of data subjects and, as a result, were unlawful (in accordance with R (Bridges) v Chief Constable of South Wales [2020] 1 WLR 5037).
In the light of these concessions the position is as follows:
Grounds 5 (the PIN Policy) and 6 (unpublished policies) are conceded in their entirety. For the avoidance of doubt the defendant's concession in relation to the PIN Policy (Ground 5) is not limited to written demands for PIN numbers, nor to any illegality arising from the provision of the Phone Seizure Receipt after phones were seized. The defendant accepts that (i) absent judicial intervention under s.49 of the Regulation of Investigatory Powers Act 2000, the Claimants were not under any legal obligation to provide their PIN numbers upon request, and (ii) insofar as any officer suggested otherwise – whether orally or in writing, in particular, under any threat of any criminal sanction – such conduct was unlawful.
Insofar as Grounds 2 and/or 3 are premised on, or involve, a challenge to the blanket nature of the seizure policy (and thus the fettering of the relevant seizure powers), those grounds are fully conceded.
Grounds 7, 8 and 9 are also conceded on the basis that officers' conduct was...
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