Less than a month later, on the 2–4 and 7–10 September 2020, HM Chief Inspector of Prisons made two unannounced inspection of the detention of migrants arriving in Dover in small boats. They inspected the short-term immigration detention facilities at Tug Haven and Kent Intake Unit in Dover, Frontier House in Folkestone, Lunar House in Croydon and Yarl’s Wood in Bedford.
Detainees were generally not permitted to keep their own phone if they had one but could receive a replacement
Detainees were able to retain their own mobile phones if they did not have cameras or internet access. However, in practice this rarely occurred as most phones were confiscated either at Dover by Home Office officials, or placed in detainees’ stored property by centre staff on arrival at Yarl’s Wood.
Detainees arriving at Tug Haven with mobile phones had them removed immediately without being able to gain access to contact details for family or friends that were stored on their phones.
Once a migrant mobile is confiscated all migrant/detainee ought to receive a “seizure information notice“, but in practice this rarely happens.
This makes clear those confiscating the mobile phone must have “reasonable grounds” for doing so.
Now for those of you who might not be aware, “reasonable grounds” is a legal test which a border force officer or police officer must satisfy themselves off before confiscating a migrant mobile phone. This test must be applied to the particular circumstances in each case and comes in two parts:
Firstly, the officer must have formed a genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search;
Secondly, the suspicion that the object will be found must be reasonable. This means that there must be an objective basis for that suspicion based on facts, information and/or intelligence which are relevant to the likelihood that the object in question will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information and/or intelligence.
The reasonable grounds test must be applied to the particular circumstances in each particular case when confiscating a migrant mobile phone. So 4,400 particular cases between Jan 1st and August 17th 2020.
If challeneged, Secretary of State for the Home Office, Priti Patel, who asked the question: Why is everyone [Home Office Officials] so “fuckinguseless?“, might discover that she and her department don’t meet the reasonable grounds test in each particular case.
Operating a blanket policy over mobile phone confiscation from migrants relying on reasonable grounds in each particular case, could be considered a “fucking useless” defence, when and if challenged in the courts.
In response to the introduction of the Human Rights Act 1998, Kent Police introduced the Japan Test , which is a useful tool for considering Human Rights, Data Protection and Privacy issues such as confiscation of mobile phones from migrants or data extraction fro migrant mobile phones.
Is the confiscation of a mobile phone from each migrant arriving on a small boat, or any other means of transport, in each particular case,
Home Office officials, are increasingly using mobile phones to verify migrants’ identities, and ascertain whether they qualify for rights to remain or asylum. (That is: whether they are fleeing countries where they risk facing violence or persecution.)
In a growing number of individual cases which end up before Immigration Tribunals, information extracted from migrant mobile phones has been used by Home Office representatives to deny asylum claims.
Certain statutes are relied upon to carry out mobile phone extraction, these are inadequate and do not deal with the specific and unique intrusions posed by use of these technologies – raising numerous questions as to the legality of their use.
A spokesperson for the UK’s Home Office told me they don’t check the social media of asylum seekers unless they are suspected of a crime. Nonetheless, British lawyers and social workers have reported that social media searches do take place, although it is unclear whether they reflect official policy. The Home Office did not respond to requests for clarification on that matter.
We can confirm that NGOs and Lawyers, who represent migrants, continue to claim the use of information extracted from migrant mobile phones, is being used by immigration officials in tribunals to challenge the migrants legitimacy to rights to remain, and asylum.
It is not just human rights legislation but data protection law and also criminal justice issues which are also required to met the JAPAN Test when confiscating migrant phones or extracting data from them in each particular case.
In the wake of the Paris attacks in November 2015, it was the then Australian Prime Minister, who placed smartphones at the centre of the terrorist’s narrative, when he said “ISIL has many more smartphones than guns, more twitter accounts than –fighters“. In this context the smartphone goes from being a ‘refugee essential’ to being a ‘terrorist essential’ – forging a potent semantic connection between migrants/refugees and terrorists.
It takes only one phone to hold information not extracted and checked to lead to a potential incident involving a migrant in an act of terrorism. But linking each migrant to terrorism, in each particular case, cannot be reasonable, as not every migrant has perpetrated an act of terrorism.
In the year ending December 2019, 35,566 people applied for asylum in the UK and 11,922 grants of asylum or leave to remain were made. In the same year, immigration was approximately 677,000, meaning that the number of asylum seekers was equivalent to around 5% of immigration, say’s The Home Office.
But mobile phone confiscation and digtal data extraction from migrant mobile phones is not the only issue.
You could search a person, and their entire home and never find as much information as you can from searching their phone. Yet the police can take data from your phone without your consent, without your knowledge and without a warrant
In 2019 Big Brother Watchresearch “revealed that police are seeking masses of personal data by default that is not relevant to an investigation at all, and may not be lawful.“
We do NOT confess to have an answer to balancing the dilema over the rights and wrongs of mobile phone confiscation and data extraction in each particular case. Thankfully that will be a job for the judiciary, when and if someone mounts a challenge.
There is though a certain irony about each of our mobile phones, for so long a tool of liberation, have now become a digital Judas, regardless whether we are a Migrant, a Suspect, a Victim or Witness.
Finally, one has to ask how much it has cost the Home Office for the last five years to issue replacement phones to migrants?
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