15 Nov Court criticises Home Office “failure of governance” in migrant phone seizure litigation

In a newly published judgment, the High Court has strongly criticised the Home Office for multiple breaches of its duty of candour and its duty not to mislead the court. The breaches occurred during judicial review litigation challenging the lawfulness of a blanket policy of seizing mobile phones from all migrants arriving in the UK by small boat; extracting all of the data; and retaining the phones for many months.  Indeed, in over 400 cases the phones have been unable to be returned due to failings in Home Office record keeping.

When the claim was brought, the Home Office denied the existence of the blanket policy, and opposed our clients’ claim without acknowledging that it raised serious issues that needed to be considered by the court.  Describing a series of failings over a prolonged period, the High Court criticized a “collective error of judgement” [para 38] that led to failings in the duty not to mislead the court and the duty of candour [para 39], which resulted in a “very unsatisfactory” [para 40] state of affairs.

The High Court stated that it would have taken the rare step of awarding indemnity costs against the Home Office if it had not already conceded those costs [para 5]. The judgment usefully affirmed that the Treasury Solicitor’s Guidance on the Duty of Candour reflects the law [para 16], which is important for other litigation amidst indications the government would prefer its lawyers to take a less exacting approach to their legal duties.

This judgment now completes the litigation opposing migrant blanket mobile phone seizures. In its earlier judgment in March 2022 the High Court ruled that the policy was unlawful in many serious respects. The Information Commissioner’s Office is now investigating these breaches, and the Home Office is writing to those affected to alert them to the need to seek legal advice, as those affected are entitled to compensation and other remedies.

A briefing note from Gold Jennings and Deighton Pierce Glynn solicitors about the case is available here.

DPG’s clients were represented by Dan Carey, Olivia Duffield and Catherine Dowle of Deighton Pierce Glynn. Gold Jennings’s by Clare Jennings and Olivia Halse. Counsel instructed were Tom Hickman KC, Bernadette Smith and Julianne Kerr Morrison for DPG and Tom de la Mare KC, Jason Pobjoy and Gayatri Sarathy instructed by Gold Jennings.

Jesuit Refugee Service, Care4Calais and other migrant support organisations were critical in bringing this issue to light.

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