Today
Wed 22 September 2021

In a special investigation, Katie Tarrant reveals how the Home Office has taken the phones of more than 7,000 migrants without any official policy in place to do so – a practice now being challenged in the courts

The Home Office has been carrying out a secret policy of seizing the phones of more than 7,000 refugees arriving in the UK by boat for data extraction, Byline Times can reveal. 

In response to a Freedom of Information (FOI) request submitted by this newspaper, for the first time, the Home Office acknowledged that 7,167 “kiosk data extractions” had taken place between 1 July 2019 and 31 May 2021.

At the time that these occurred, no official policy to do so existed.

However, on 8 July 2021, the Home Office finally published a policy on the practice – a curious 23 days after Byline Times submitted its FOI request.

The department is now facing a judicial review over the issue next year, which could conclude that it acted unlawfully by seizing migrants’ phones at the sea border for data extraction – without an official policy in place authorising this. 

Clare Jennings, director of public law at Matthew Gold solicitors who is leading the judicial review, told Byline Times that the Home Office did not initially admit that there had ever been a policy of mass phone confiscation and extraction in place.

A Home Office spokesperson suggested to Byline Times that phone extraction is used when a suspected immigration offence has occurred, such as illegal entry.

They said that data from mobile phones and other digital devices can be “extracted by immigration enforcement for the purpose of investigation under statutory powers of seizure” and that “each case is considered on its own merits”.

“Where there is no suspected facilitation or immigration offence, migrants are treated as victims or witnesses,” they added.

The spokesperson also said that the Government’s Nationality and Borders Bill aims to “break the business model of people smugglers exploiting others into making unnecessary journeys, and welcome those in genuine need of protection through safe and legal routes”.


The Data Extractions

“Kiosk data extractions” allow officers access to all immediately available data on a device – including messages, calls, GPS, photos, and contacts.

Clare Jennings believes that the majority of confiscations and data extractions occurred during 2020 – when it is possible that immigration enforcement seized the phone of every migrant entering the UK by boat.

The Home Office refused to provide Byline Times with a breakdown by year of how many phones were subject to data extraction. 

Meanwhile, documents it has seen suggest that safeguarding aspects of the newly published policy were not in practice since immigration enforcement began seizing phones – including returning phones to people as soon as possible, and officers providing refugees with a choice on whether to hand over their phones or not. 

The documents and eyewitness accounts suggest that refugees have been threatened with legal action “as soon as they stepped off the boat” if they did not hand over the phones – some of which have still not been returned since they were confiscated last year. 

Labour MP Sarah Champion – who has never received answers to questions she has asked regarding migrant phone seizures – described the large-scale data extraction as exemplifying a “worrying disregard for the human rights of vulnerable asylum seekers and migrants”. 

“It is alarming that the Home Office has only just published this policy despite the scale of data extractions taking place,” she told Byline Times. “It is completely unacceptable that there are cases of vulnerable victims and witnesses still waiting for their phones to be returned after a year.

“We need clarity about what guidance was used previously, by what means and how long data will be stored, and how this is a proportionate response to the Government’s stated need to tackle organised crime groups.”


Privacy Concerns

The Home Office first purchased data extraction technology from Swedish software company MSAB for border force and immigration enforcement in March 2019, according to the Government’s online contract portal.

MSAB has previously faced criticism for supplying technology to Myanmar’s security forces, which led a violent crackdown on protests against the state earlier this year. 

The company describes its kiosks as allowing “organisations to scale their extraction power, by enabling users with minimal training to process many devices”. 

The Home Office refused to provide Byline Times with any staff specific guidance on the practice.

Its new policy recommends that any intrusion into the personal and private lives of individuals should be carried out “only where deemed strictly necessary and using the least intrusive means possible to obtain the material required, adopting an incremental approach”. 

There is also an emphasis on officers avoiding routine searches. Reasonable grounds that searches may reveal material “relevant to the investigation or the likely issues at trial” must exist for phones to be seized and their data extracted. 

For Sarah Champion, digital extraction is a “serious privacy interference with potentially devastating consequences for the individuals involved” and more safeguarding measures are desperately needed. 

When told that more than 7,000 data extractions had taken place since mid-2019, the MP said that this constituted a “wholly disproportionate response” to tackling organised crime. 

“Imagine being trafficked into the country, abused on the way in, and then having your mobile phone seized leaving you completely cut-off from your loved ones or vital documents without knowing when – if ever – it will be returned,” she told Byline Times. “It is inhumane and it is vital a high threshold is met before it can occur.”

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A Questionable Track Record

The use of mobile data extraction by police in England and Wales has been controversial for some time.

Last June, a report by the Information Commissioner’s Office (ICO) found numerous security concerns regarding unauthorised access by officers and training that “stopped short of covering the full range of issues associated with this sensitive processing”. Highly sensitive personal data is not always being encrypted while exported to other digital media, and is sometimes transported by unsecured means. The report also found that the data extracted from the mobile phones was often too excessive – a concern that had also been raised by charity Privacy International (PI). 

PI campaigned for better scrutiny of data extraction practices when the Police, Crime, Sentencing and Courts (PCSC) Bill extended the police’s powers to immigration enforcement in July. For the first time, the bill includes provisions for the “extraction of information from electronic devices” by immigration officers – despite Byline Times‘ evidence that this practice has already been in place since at least July 2019. 

At the time, the charity said that it was “concerned immigration officers not only lack requisite skills” and because “the power imbalance between state and migrant calls into question whether provision of a device can ever be truly voluntary”.

The newly published policy emphasises that – unless officers are investigating migrants for crimes of people smuggling or illegal entry – they should seek “cooperation” to obtain material. However, Byline Times has seen phone seizure receipts issued by the Home Office since November 2020 that suggest that immigration enforcement officers have been threatening refugees and asylum seekers with legal action if they refuse to allow access to their phones. 

The documents state: “You are lawfully required now to provide the officer seizing the phone the PIN/security code which unlocks it. It is an offence to fail to provide these details.” 

The new policy also states that officers are to “reduce the inconvenience to the victim/witness by keeping the device for the minimum time possible” – but this has not always been the case.

Rebecca Merry, a volunteer for migrant charity Care4Calais, has been keeping a record of the phones seized since October 2020 and managing requests for the return of 93 phones. She told Byline Times that, more often than not, they are not returned swiftly. 

Phone seizure receipts dating back as far as August 2020 show that the Home Office can maintain possession of the phone “for up to three months” or for a period of time decided by the officer issuing the receipt. The burden is on the phone’s owner to contact the office “within six months, [or] your phone will be destroyed”. 

Some migrants have also allegedly been told that their phone has been lost. 

A Home Office spokesperson said that “where a request for device restoration has been made, the Home Office is restoring devices as soon as possible where they hold them”.

But, as of 20 August 2021, Merry is still waiting for 38 phones to be returned to asylum seekers who have arrived from countries including Syria, Iran, Eritrea, Palestine, and Iraq. She said it was “heartbreaking” to see vulnerable people without their phones for so long. 

“For people who have lost so much, their phone represents absolutely everything to them,” she told Byline Times. “People can have all the documents saved that prove their asylum claim and then the phone or documents get lost, as we’ve seen.” 

Solicitor Clare Jennings said that one of her clients lost contact with his wife and daughter for months – they “didn’t know if he was safe, he didn’t know what had happened to them”. 

“The Home Office has not been exemplary in their use of IT systems,” said Camilla Graham Wood, a PI legal officer specialising in data surveillance and protection. “If they’re holding very sensitive data related to migrants, some of whom could be of interest to nation states because they’re political activists, they need to have a good security policy.” 

The Home Office has instructed Sir James Eadie QC to lead its defence of the judicial review – a lawyer known as “The Treasury Devil” who deals with cases of “national importance”. He represented the Government in the Brexit case brought by businesswoman Gina Miller, as well as the Supreme Court challenge over Boris Johnson’s 2019 prorogation of Parliament.

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