R (on the application of HM & Ors.) v Secretary of State for the Home Department

The court addressed the consequences of its earlier substantive judgment ([2022] EWHC 695 (Admin)) concerning the search, seizure and retention of mobile phones taken from migrants arriving in the United Kingdom in small boats. The Secretary of State accepted that she had operated a blanket policy of seizing phones which was unlawful in material respects. The court identified a collective failure of governance and a breach of the duty of candour in pre‑action and early litigation correspondence: lawyers and officials mistakenly believed the seizure policy had been changed in June 2020 when in fact it remained in operation until November 2020, and that mistake was not volunteered to the claimants or the court.

The court summarised relevant law including the duty of candour in judicial review, considered contemporaneous documents and witness evidence, and concluded that the duty required disclosure that a blanket seizure policy had existed and that assertions to the contrary were excessive and misleading. As a result the Secretary of State agreed that some claimants’ costs should be paid on an indemnity basis and the court proposed declaratory and consequential relief addressing the unlawfulness of s.48‑based seizures in the relevant context, notification to affected individuals, publication of the order and other remedial steps.

This is a consequential judgment following the court's substantive ruling that the Home Secretary had operated an unlawful policy in relation to the search for, seizure of and extraction of data from mobile phones of migrants arriving in small boats. The proceedings were judicial review claims brought by anonymised claimants (JR1 and JR2). The Secretary of State accepted unlawfulness of a "blanket" seizure policy. The consequential hearing addressed the extent and consequences of a failure to comply with the duty of candour and the appropriate form of relief.

Nature of the application: the claimants sought relief for unlawful seizure and retention of data and consequential remedies following the substantive judgment; the court was asked to determine declaratory relief, orders for notification and publication, and costs consequences.

Background and facts: the court reviewed contemporaneous documents and witness evidence concerning policy changes in 2020. Between June and November 2020 there were a series of revisions concerned with limiting the extent of data extraction from seized phones, but those revisions did not change the practice of attempting to seize phones from migrants. A more limited seizure policy was only adopted in late November 2020. Government lawyers and counsel preparing pre‑action responses and defences operated under a mistaken belief that the blanket seizure policy had been abrogated in June 2020. That mistaken factual basis led to pre‑action letters, acknowledgements of service, grounds of resistance and other documents that failed to volunteer the existence and operation of the blanket policy and, in the court's view, amounted to breaches of the duty of candour.

Issues framed by the court: (i) whether there had been a breach of the duty of candour in the pre‑action and litigation documents; (ii) the nature and origin of the mistake and whether it excused the failures; (iii) what declaratory and consequential relief should follow, including the scope of s.48 of the Immigration Act 2016 and notification and publication obligations; and (iv) costs consequences.

Reasoning and conclusions: the court emphasised the importance of the duty of candour in judicial review proceedings and accepted that the failures arose from systemic governance failings amid pressurised circumstances rather than dishonesty. The legal team genuinely but mistakenly believed the blanket policy had been discontinued in June 2020; they should have set out the true position so the claimants and court could evaluate permission and stay applications accurately. The court found that documents in JR1 were excessively robust and that JR2 was improperly put on a footing that led to a stay. The Secretary of State made appropriate concessions including an apology and agreement to pay some claimants' costs on an indemnity basis. The court proposed declaratory relief that seizures predicated on s.48 in the relevant context were unlawful and that s.48 does not permit seizure of items that come to light during a personal search; it also directed steps for notification to potentially affected migrants and publication of the order, with liberty to apply on remaining points.

The court found a collective failure of governance and a breach of the duty of candour by the Secretary of State’s representatives in responding to the claims. The Secretary of State accepted the errors, apologised and agreed to indemnity costs for some claimants. The court ordered declaratory and consequential relief addressing the unlawfulness of seizures carried out pursuant to the mobile phone policy in reliance on s.48 in the relevant context, required notification steps to persons who may have been affected, and directed publication of the order and other ancillary measures. The court did not make individual findings of blame against officers or lawyers but recorded systemic failings and the corrective steps taken.