Fears private phone data could be weaponised over new powers for immigration officers

Sweeping new powers for immigration officers to extract mobile phone data are being introduced as hundreds of asylum seekers report having their phones confiscated, prompting fears that private data could be weaponised against asylum claims.

Rights groups have raised alarm over a clause in the Police, Crimes, Sentencing and Courts (PCSC) Bill that would enable immigration officers to extract data from personal devices as long as the owner has “agreed”.

“There is nothing to prevent officers accessing everything from fingerprints to social media accounts to GPS histories, storing it indefinitely and using it for things besides that which it was taken,” said Camilla Wood, senior legal officer at Privacy International.

"How can consent be informed when the powers are so vague?"

The Home Office has promised a code of practice to guide authorities on when and how the power should be used, but the bill explicitly protects anyone who breaches this code from criminal or civil liability.

Immigration officers can already search people’s phones in strict connection with an offence, but would now be able to act on a consent-basis. “This condition of consent fails to acknowledge the power imbalance between immigration officers and individuals,” warned Ms Wood.

It comes after the Home Office was forced to admit that many of its phone seizures on the border have been unlawful.

“We received a response to a pre-action letter in which the Home Office admitted that they had been operating a blanket and unlawful policy of confiscating phones from everyone arriving without leave [to remain],” said Jeremy Bloom, immigration solicitor at Duncan Lewis Solicitors, who received the letter in June.

“They were seizing phones without even assessing whether there were reasonable grounds to suspect that they contained evidence in relation to immigration offences. In doing so they were breaching human rights and data protection law.”

Privacy International fears that the PCSC Bill could provide retroactive justification for sweeping seizures of this nature. “To introduce or perhaps seek to introduce what is already taking place through so-called voluntary agreement is dishonest and misleading,” said Ms Wood.

Phone seizures have been happening routinely at the border since last autumn, according to charity Care4Calais, which has responded to hundreds of incidents. The Independent spoke to several asylum seekers affected, one of whom has not seen their phone since November 2020.

“Nobody asked for my permission, the officer just said he needed my phone,” the individual said. “I felt sick because it left me no way to tell my family I was alive. I’ve lost all my photos and contacts from home.”

Another man had his phone confiscated when he was taken to a detention centre to be processed in May. He said: “But I’ve now been out of the centre for months and still don’t have my phone back. I have no idea what they are doing with it, if they are reading my private messages. It’s humiliating.”

He added that smugglers in France are forcing migrants to hand over their phones to prevent data from falling into the hands of the authorities, and then selling them for further profit.

A Home Office spokesperson told The Independent: “Data from mobile phones can already be extracted by police and immigration officers via existing legislation. The PCSC Bill will, for the first time, provide safeguards to protect the privacy of victims and others during sensitive investigations in primary legislation.”

The reference to victims regards criminal investigations, in which officers will also be able to use the new powers to access complainants’ personal data. This has led to concerns that the bill could make rape victims vulnerable to “invasive background checks determined to undermine their credibility”, according to the UK’s Victim’s Commissioner, Dame Vera Baird.

In contrast to the Home Office’s response, Dame Vera said she feared the bill would jeopardise victims’ privacy rights. In October, she successfully acquired a number of amendments to the bill to bring wording in line with existing data protection law, but is still fighting for more safeguards.

It is not the government’s first attempt to apparently undermine data protection in immigration matters. In June, a high court judge ruled its attempted “immigration exemption” to the Data Protection Act unlawful. Open Rights Group (ORG) - who filed the motion - has flagged a systematic attack on migrants’ privacy rights.

“The proposal is evidence of the increasingly concerning use of surveillance-weaponising data for immigration control,” said Sahdya Darr, immigration policy manager at ORG.

“My own opinion is that it’s just part of the hostile environment,” said Clare Moseley, Care4Calais founder. “For people fleeing warzones, their phone is the single most important possession they have. It contains photographs of families that they might never see again, it’s how they find a lawyer or access Google Translate in a foreign country. This move is punitive.”

Labour MP Sarah Champion has called for caution from within Westminster: “I am concerned that we are asking immigration officers to be incredibly mindful, and to be trained and resourced, and to have all the skills, to request that device.”