A “COLLECTIVE failure of governance” allowed the Home Office to operate a secret and unlawful policy that saw hundreds of asylum-seekers’ phones seized and data extracted, the High Court has ruled. 

The department has been ordered to inform all those who were subjected to the unlawful policy after arriving to Britain in small boats that their rights were breached.

The ruling in the High Court last Friday means that hundreds of asylum-seekers affected by the policy can now claim compensation. 

Judges ruled in a separate case in March that the Home Office had run an unlawful blanket and secret policy between April 2020 and November 2020 of seizing the phones of asylum-seekers.
 
During the case, the court heard evidence that information including contacts, text messages and browsing history were extracted from phones and shared with the National Crime Agency, police and the French authorities. 

The Home Office initially denied the existence of the blanket policy in the early stages of the legal action. 

It was only when permission was granted for a judicial review to go ahead that the department finally admitted that the blanket and unpublished nature of the policy was unlawful.

This prompted the judge to take the highly unusual step of ordering a second hearing to address the department’s failure in its “duty of candour,” which was heard last Friday. 

Lawyers told the Morning Star that the unusual move reflected the seriousness of the breach, as the policy may never have come to light if permission for the legal action had not been granted. 

Speaking about the case on Tuesday, Clare Jennings of Gold Jennings solicitors, who brought the challenge on behalf of three asylum-seekers, said she hoped the ruling would serve as a “helpful reminder to defendants about the importance of the duty of candour and what happens if they don’t comply with it.”

On Friday, Lord Justice Edis and Mr Justice Lane ruled that “collective errors of judgement” led to the Home Office failing to reveal the existence of the policy in the early stages of the legal action. The court didn’t find that there was any one individual responsible, or that there had been bad faith. 

They held that there were at least two “very serious” breaches of the duty of candour and that the “excessively robust” response by the Home Office in refuting the existence of the policy was designed to avoid permission being granted for the case to go ahead. 

In that response, the department had claimed allegations it was operating a blanket policy were “based on anecdote and surmise,” and accused the asylum-seekers’ lawyers of launching a “fishing expedition.” 

The Home Office has since offered an “unreserved apology” and has accepted the breach, as well as set out to investigate how the errors were made. 

In written submissions to the court on Friday, Sir James Eadie KC, representing the Home Office, said that the candour issue was partly down to miscommunication between officers and lawyers concerning the period in which the policy was said to have been operated. 

It was later revealed that nearly 500 phones seized by immigration officials will now be destroyed because the Home Office failed to keep proper records and does not know who they belong to. 

A Home Office spokesperson said: “Our staff are fully trained to ensure any use of powers to seize mobile devices is proportionate, necessary and based on reasonable grounds of suspected involvement in criminal activity such as piloting a small boat.”