The policy by Priti Patel’s department of seizing the phones of refugees arriving in the country during most of 2020 was grossly unlawful and cruel, writes George Peretz.
By George Peretz
Calls to break up the Home Office – and redistribute its functions across Whitehall – are about to grow even louder, following last week’s ruling that the department broke the law by confiscating refugees’ phones.
There are some basic principles of English law that you ought to be able to rely on with absolute security when you deal with the state. One of these is that you cannot be searched by an officer of the state, or have your property seized, without a specific legal basis.
Though this has modern overlays in the form of the Human Rights Act and the Data Protection Act, it falls mostly into the legal specialism known as the bleeding obvious. Or, to use the politer words of the High Court when considering the spectacular failure of the Home Office: “None of the legal concepts involved is novel or recondite.”
The behaviour that generated this judicial reaction was the Home Office’s policy, during most of 2020, of greeting people arriving on small boats to claim refugee status with an immediate search for their mobile phones, seizing those phones, demanding the passwords for those phones (while falsely claiming that it was an offence not to give them), downloading all the data on those phones onto Home Office systems and, finally, refusing to return the phones.
When finally challenged, the only legal grounds the Home Office could come up with that could possibly have justified some of that behaviour were powers to search for and seize weapons or material that could be used to escape custody.
But even that somewhat desperate attempt to salvage something from the wreckage was dismissed without much ado: the court scarcely bothered to deal with the “weapon” claim and tartly observed that those claiming refugee status are very unlikely to try to escape, as to do so would seriously damage their claim.
In any event, the Home Office had to admit that it could not lawfully apply a blanket, no-exceptions policy without any attempt to work out in an individual case whether those conditions were met.
In fact, the policy was so spectacularly and fundamentally unlawful that, when reading the judgment, you get the sense that the judges had some difficulty in picking their jaws up off the floor. But the catalogue of legal failures does not end there.
Home Office Denials
When the Home Office was challenged by lawyers acting for those whose phones had been seized, it blithely denied that there was any such policy and accused the lawyers of basing their clients’ claim on “anecdote and surmise.” It was only months after legal proceedings began, and after the Home Office had maintained its flat denial in pleadings, that the department finally admitted that there had been such a policy.
According to the Home Office, that breach of the duty of candor (the duty on all public bodies to be candid and accurate in what they tell a court and other parties in public law litigation) was “inadvertent.”
Although the mind boggles as to how such an error could have occurred “inadvertently,” we will find that out in a further High Court hearing. Those responsible for the false denial should be worried: the court’s references to dealing with the breach of the duty of candour “later” have a distinctly ominous ring about them. In the worst cases, breaches of this kind can lead to a finding of contempt of court, the maximum penalty for which is an unlimited fine or two years in prison.
Despite the legal horror show, it should not be forgotten that the policy was not just grossly unlawful – it was also cruel. For those seeking refugee status (and, according to the Refugee Council, nearly two thirds of those arriving on small boats eventually succeed in showing that they are refugees from persecution), their phone is their only link with family and friends in the country they are fleeing from, and in the country they hope to flee to.
And, like anybody else’s, these people’s phones contain what the law coldly calls “personal data”: that is to say, photos of and messages from those they love and facts about every intimate detail of their lives – all of which were taken from them and put on Home Office databases for officials to leaf through at will.
Sadly, the mixture of cruelty and incompetence shown in this disgraceful episode is typical of the home secretary’s habit of behaving like a cross between Cruella de Vil and Mr. Bean. But it is not clear what direct role she or other ministers played in all this.
What can be said is that the High Court did record that ministers put pressure on officials to grab as much information as they could from those arriving on small boats, and to process that information quickly. It is not clear whether ministers emphasised that that should be done only within the law. Nor does it appear that anyone within the Home Office gave any thought to whether what they were doing to meet that ministerial pressure was lawful – or, if they did, that they thought (or dared) to tell ministers that it wasn’t.
It is also not clear whether the home secretary or other ministers had any role in the subsequent false denial of the policy – although, again, there does not appear to be much evidence of the home secretary putting pressure on her officials to ensure full and swift disclosure of the facts to the court and to regulators such as the information commissioner.
What is obvious is that this is a further entry in the bulging file of examples of the dysfunctional culture of the Home Office (see here for other examples).
No government department should ever have thought for a nanosecond about operating such a policy or allowed any of its officials to believe that operating such a policy was remotely acceptable. If ministers got anywhere near suggesting, or turning a blind eye to, such a policy, any government department should have ensured that its gross illegality was rapidly drawn to their, and if necessary the law officers’, attention. And no properly functioning government department could have so frequently failed to comply with its basic obligation of candor with the courts.
Calls to remove responsibility for immigration control from the Home Office have been backed by think tank the Institute for Government (which is well-known generally to doubt the value of moving responsibilities around different departments): those calls will, and should, now snowball.
George Peretz is a queen’s counsel in England and Wales and barrister-at-law in Ireland. His practice covers a wide range of public law, regulatory and tax issues, with particular strengths in competition and state aid, pharmaceuticals, VAT and customs/trade remedies, and agriculture. He has argued a number of major cases in the Supreme Court, Court of Appeal, European Court of Justice and General Court and regularly leads in the senior English courts. He is also a director of openDemocracy. Views expressed in openDemocracy are his own, not those of his chambers.
This article is from openDemocracy.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.