Painful lessons about the duty of candour (more on the unlawful seizure of migrants’ mobiles) 

21 November 2022 by Marina Wheeler QC

In an earlier post, we reported the Divisional Court’s eye-catching ruling that a blanket policy to seize and download data from migrants’ phones was unlawful: R (HM, MA and KH) v Secretary of State for the Home Department [2022] EWHC 695 (Admin).

In this first Judgment, the Court analysed powers granted by the Immigration Acts 1971 and 2016 and rejected the Defendant’s erroneous interpretation of the relevant statutory provisions. It then made consequential orders (also reported) including steps to publicise its ruling, given that over 400 phones, still held, could not be linked to any individual migrant.

A second Judgment (delivered on 14 October 2022) was recently published ([2022] EWHC 2729 (Admin)). This Judgment addresses the question “how did this happen?” How did the Defendant come to operate an unlawful policy and why was its existence initially denied, leading the Defendant to breach her duty of candour within the proceedings?

This Judgment, like the first, contains a mildly-worded, but stinging judicial rebuke from which policy-makers and lawyers representing them will draw painful lessons.

A failure of governance

No-one, the Court made clear, was alleged to have acted dishonestly or in bad faith. But errors were made.  Operationally, an “important goal” was pursued. The phones were taken, and data downloaded, in order to investigate criminal gangs who put migrants’ lives at risk by selling them places on small boats. The Court accepted that downloaded data might reveal common phone numbers contacted by migrants shortly before the voyage. However, important as the goal was, immigration officers lacked the legal powers to undertake this exercise. The Secretary of State (and Home Office) “fell into unlawfulness” due to a “lack of clarity about the law” which they “assumed was in the form they hoped it was”. The Court acknowledged that those involved in framing the policies, seizing phones and handling claims were under great pressure, dealing with a “crisis of mass migration” against/in the context of “a formidably complex statutory framework”. But the fact remained that they did not ensure that “everything that was done was lawful” and this, the Court held, was a failure of governance.

The duty of candour

At paragraph 15 of its Judgment, the Court underlined the critical importance of the duty of candour in judicial review proceedings: the Court assumes, consistent with the duty, that it “will be supplied with all the information necessary to determine a case accurately”, enabling it to “adjudicate on issues involving the state without deciding facts or engaging in disclosure processes”. Steps necessary to comply with the duty are set out in the 2022 Administrative Court Guide and the less widely-known Treasury Solicitor’s Guidance of January 2010.

The errors in this case arose because the policies were “ad hoc” and not clearly understood by those applying them. This meant that they were not communicated accurately once they were challenged and it became necessary to explain them. Lawyers defending the Claims did not receive accurate factual instructions from the Home Office. When they came to draft the Defendant’s response, they understood there had been a blanket policy but (wrongly) believed it to have been abrogated before the Claimants’ phones were seized. The pre-action response letters and summary Grounds of Resistance accordingly disputed the existence of a blanket policy.

Responding to the claims in this way was a collective error of judgment, the Court found. The duty of candour required the Secretary of State to accept that there had been a blanket policy and to assert the false belief that it had been abrogated in June 2020. Setting out the Defendant’s “real case” in this way, would have enabled the Court, when considering permission, to evaluate it on an accurate footing. Instead, the Court made an order staying proceedings (in the second claim) which it would not have done if it had been given the information “to which it was entitled”.

Interestingly, the Court observed that working conditions during the pandemic were likely to have played a role. Lockdown and remote-working restricted the opportunities to meet face to face which it found “may well have helped to achieve the level of communication necessary to produce accurate documents in response to these claims.”

The tenacity of the Claimants and their lawyers has been praised for bringing the illegality to light. On the Defendant side, this sorry litigation highlights a variety of challenges and possible lessons: These include: 

• the immigration system is bedevilled by a complex statutory framework;
• in such circumstances, and where fundamental rights are in issue, powers need to be carefully checked;
• political pressure exerted on hard-pressed officials can be counter-productive;
• face-to-face communication can act as a safeguard by enhancing the quality of communication; and
• for those drafting legal responses, it may not be enough to flag “concerns” with the client’s instructions – indeed such a course carries significant risks.