Andrew Tickell: Priti Patel's Home Office can't stop acting outwith law

The UK Government department is a byword for an organisation which mistook Terry Gilliam’s Brazil for “a how-to guide to designing your own authoritarian bureaucracy to crush the lives of people unlucky enough to find themselves subject to its tender mercies”, rather than a satire on the same.

In Priti Patel, the worst department in the UK Government has a true-to-type ­figurehead. But what makes the Home ­Office a malign outfit stretches all the way from the Secretary of State’s ­office in ­Whitehall, through every frosty ­bureaucratic layer of its dogmatic and ­duplicitous administration, from the heart of London to the shores of the English Channel. When Theresa May launched her vision of creating a “hostile environment” for migrants, she was only saying the quiet part out loud, turning official Home Office policy into an overt Home Office slogan.

One of the most calculatedly obnoxious aspects of the Home Office is that they like to ­position themselves as the department of law and order. But if recent history has taught us anything, it should be that the Home Office has a minimal commitment to elementary ideas of justice and a scofflaw’s indifference to whether it’s done its job by the book. The human cost apparently doesn’t feature at all.

By now, we all know something about the Windrush scandal. Children from ­Commonwealth countries who arrived in the UK in the 1970s with their parents were forced, decades later, to prove they had the right to remain in the UK. Many had ­arrived on their parents’ passports. The Home ­Office had destroyed many of the documents which could have ­substantiated these long-standing residents right to be here. But in classic Home Office style, it flipped the burden of proof on to ­applicants, demanding Windrush residents produced at least one official document from every year they had lived in the UK since the 1970s to ­secure their immigration status. Many could not do so, and were unjustly and illegally expelled from this country.

Apologists for the department would like you to believe this was an isolated episode. It was not. Last week highlighted another stunning example of the lawlessness and institutional dishonesty which ­continues to thrive under this Home Secretary. ­

Picture the scene. You are a refugee. You have been sitting huddled on a small boat, battered by the cold, wind and rain of the English Channel. In 2021, over 1000 small boats made the same journey, carrying around 28,500 people. You know, ­perhaps, that other desperate seafarers have not been so lucky, and concluded their search for a safer life at the bottom of the ocean, or washed up on the beach.

At long last, the vessel touches sand, you disembark and you make your first acquaintance with your first friendly Home Office border force official. They tell you are arrested under the Immigration Act. Then the official asks if you have a mobile phone. They ask you to turn over the PIN number, threatens you with criminal sanctions if you don’t comply, and promptly pockets the device cutting you off from one of the few ways you may have to keep contact with family and friends. You aren’t really in a ­position to object, so you comply. The device is ­retained for at least three months, its data scraped by the Home Office, before being ­returned to you.

Looking along the line of travellers ­disembarking with you, you see that every single one of them is also asked to turn over their phones, and to cough up their passwords or face criminal sanctions. Like you, they all comply. You form the impression that everyone landing on these small boats is subject to the same treatment. It seems routine.

You mention this to your lawyer, and they frown. They frown for a good ­reason – because what Patel’s “Clandestine Operational Response Team” were doing in the Dover ports is obviously illegal. The Immigration Acts give them no legal ­authority to confiscate personal devices and plunder their personal data like this. And even stranger, there’s nothing in Home Office Golden Command policy – yes, even the policy documents have vaguely sinister titles – which admits this search and seizure policy exists.

The lawyers come to realise yours isn’t an isolated case – it seems to be ­happening to everyone who lands at Tug Haven from Calais. Every person making that ­difficult landing is being huckled, searched and having their property ­confiscated by Home Office officials, threatening them with bogus prosecutions if they didn’t turn over their pin numbers. So they sue. Their arguments are simple. The Home Secretary can’t make secret law and ­policy. You can’t search people or seize their property just because you feel like it. And if you want to gain access to an ­encrypted device – the Regulation of ­Investigatory Powers Act says the courts have to be involved. Home Office goons making confiscations and threatening ­migrants on the beach had no more right to do what they were doing to these ­people than a mugger.

Then something fairly remarkable ­happens. In court, Patel flatly denies that the Home Office have any blanket policy, dismissing the complaints as “based on anecdote and surmise”. Her “stance was that there was no policy of the kind”. She maintained this position well into the judicial review case. But this was a lie. Just a flat-out lie. Not only was there a secret policy to search, seize and scrape the phones of all refugees arriving in ­Britain this way, but the Home Office was forced to admit its conduct had breached an eye-watering catalogue of basic legal ­principles, both at the level of policy and practice.

The Home Secretary had acted ­outside her powers. Having an unpublished ­blanket policy like this was ­unlawful. She’d breached the Data Protection Act, and ignored the Regulation of ­Investigatory Powers Act. Her QC ­conceded these people “were not under any legal obligation to provide their PIN numbers upon request”, and “insofar as any officer ­suggested otherwise” – their conduct was unlawful. And she’d breached the European Convention on Human Rights too. And above and ­beyond that, the Home Office had misled not only the people trying to challenge its illegal behaviour, but the courts too.

In last week’s judgment, this is described in mannered fashion as acting in a manner “inadvertently inconsistent with the duty of candour” which public authorities owe courts investigating the lawfulness of their activities. The Home Office was forced to offer “an unreserved apology” and “has sought, apparently unsuccessfully, to understand how the error had come to be made”. To adapt Withnail and I, the Home Office position on all this appears to be “we’ve adopted an unlawful secret policy and falsely denied its existence in court by mistake”.

This explanation stretches credulity. As the Home Secretary never ceases ­reminding us, we are talking about ­thousands of people arriving in ­Dover and being processed by the Home ­Office at the same site. Each of these people ­appears to have been subject to the search and seizure protocol over a ­sustained ­period of time. That’s a lot of mobile phones, and a lot of PIN numbers, all ­accumulating in Home Office files. Are we seriously meant to believe that Home Office officials instructing their lawyers in this case were entirely innocent of the nefarious practices of their enforcers? That they had no awareness of the extensive paper trail and accumulation of evidence which flatly contradicted the line they tried to sell the High Court? Pull the other one.

During her spell in office, Patel has ­consistently misrepresented the work of solicitors – trying to hold her ­department to its own rules of procedure, and ­respect for elementary rights – as “leftie ­do-gooders”. The Prime Minister has declared open season on lawyers with the temerity to represent their clients, and has put the boot into courts requiring the Home Office to act in a lawful, procedurally fair, rational way.

As one academic commentator ­observed, last week’s judgment against ­Patel is “not exactly a good sign of ­rigorous, rule of law-based ­decision-making” in the Home Office. This is the height of ­diplomacy. This fiasco is just the latest ­example of a department of law and order, whose ­indifference to basic rights knows no bounds.