Alan Payne QC and Remi Reichhold act in a judicial review challenge concerning the seizure of phones from migrants

The Claimants challenged the SSHD’s policies in relation to the seizure of, retention and extraction of data from migrants’ mobile phones. The issues for the Divisional Court (Edis & Lane JJ) to consider broadly fell into three categories: (i) the lawfulness of the exercise of search and seizure powers; (ii) whether the retention and extraction of data from mobile phones was lawful pursuant to Article 8 ECHR; and (iii) whether the processing of migrants’ personal data was consistent with the SSHD’s obligations under the Data Protection Act 2018.

Part of the claim was conceded before the hearing. The SSHD accepted that the phone seizure policy which applied until November 2020 (the seizure policy) was unlawful due to its general (or ‘blanket’) application and because it was unpublished. As a result, the seizure policy was not “in accordance with the law” for the purposes of Article 8 ECHR and did not provide a lawful basis for the processing of data under the Data Protection Act 2018. It was also conceded that: (i) the retention of mobile phones and the extraction of data therefrom was unlawful; (ii) the practice of requiring (or attempting to require) PIN numbers was unlawful and (iii) the applicable Data Protection Impact Assessments were not consistent with the requirements set out in R (Bridges) v Chief Constable of Wales [2020] 1 WLR 5037.

The remaining elements of the claim were contested by the SSHD, including inter alia that (i) search and seizure powers were lawfully exercised under the Immigration Acts 1971 and 2016; and (ii) that – contrary to the written submissions of Privacy International – there is no requirement for judicial authorisation prior to mobile phone extraction. Judgment is expected later this year.