Recommendation 78

HM Government Accepted

The powers of search and seizure, at clauses 19–26, will not be applied indiscriminately, nor on a blanket basis. The powers will only be exercised where there are reasonable grounds to suspect that an electronic device may contain information related to the commission, whether past or future, of a facilitation offence under sections 25 or 25A of the Immigration Act 1971. The suspicion must be based on specific indicators, which may arise from intelligence sources or from the individual’s behaviour or associations. The threshold of “reasonable suspicion” ensures that the use of the powers remain focused and proportionate. Furthermore, authorised officers will not be acting with unfettered discretion. The law will be applied on a case-by-case basis, bound by a series of safeguards, some of which can be seen on the face of the Bill. This contrasts with R (HM) v SSHD [2022] EWHC 695 (Admin) where the High Court found the use of blanket policies to be unlawful. The Home Office actively consulted with the UK’s data protection independent supervisory authority (the Information Commissioner’s Office) when designing the powers, and their views are reflected in the drafting. The Home Office will continue to proactively consult with the Information Commissioner’s Office on implementation guidance. The Government has considered the impact that the powers may have on individuals who are temporarily without their mobile phone. To minimise such impacts, law enforcement can only retain the devices for as long as necessary (subject to the duty to pass on at clause 22). This is set out on the face of the Bill at clause 21(6). This means the device will be returned to the individual at the earliest opportunity, to enable communication with close family members. We acknowledge and agree with the Committee’s recommendation that the use of these powers should be clearly defined. While it is not considered appropriate to place operational detail on the face of the Bill, we agree that clarity on the application of these powers is essential. To that end, the Home Office will issue detailed non-statutory policy guidance to accompany the implementation of these powers. This policy guidance will: • Consider the position of vulnerable individuals, including victims of trafficking and children. • Emphasise that the powers must be exercised on a case-by-case basis, based on reasonable suspicion, and not as a matter of routine. • Set out the legal threshold and purpose limitation, ensuring that devices may only be searched or retained for the investigation of facilitation offences. • Ensure that any electronic device is only retained as long as necessary and returned as soon as reasonably practical. • Reinforce the requirement for officers to act in accordance with the Human Rights Act 1998 and the European Convention on Human Rights, including Article 8 (right to respect for private and family life). • Clearly outline how the powers should be applied in cases involving vulnerable individuals, such as minors, with the appropriate safeguards. Additional safeguards which clarify how the powers will be used and protect individuals subject to the powers (including victims of trafficking and children) include: • The powers may only be used once per illegal entry or arrival, with internal/external checks to prevent repeated searches. • Only authorised officers and those specified by regulation may exercise the powers. • All authorised officers will receive appropriate training before they can use the powers. • Where the powers are exercised by a person other than an immigration officer, approval must first be sought from an individual with appropriate seniority. • Authorised officers are prohibited from conducting intimate searches, and only outer clothing may be removed. • The Criminal Justice and Police Act 2001 applies to the exercise of the power. This provides a statutory framework for the protection of legally privileged material and for individuals to challenge the seizure and retention of property. • Data obtained from devices will be handled in accordance with UK data protection legislation, using established systems and protocols. • The Information Commissioner’s Office has been consulted and will continue to be engaged during implementation. These safeguards are considered to strike the right balance between operational necessity and the protection of individual rights. Given the safeguards already in place, along with the forthcoming non-statutory guidance that will be issued to authorised officers, it is not considered necessary to amend the Bill.