Facts: The applicant, a national of Pakistan and a student in Cyprus, was refused leave to land at Dublin Airport on 21 October 2017. While he held a visa for the State, he was refused leave to land pursuant to section 4(3)(k), Immigration Act 2004, on the grounds that there was reason to believe that he intended to enter the State for purposes other than those expressed. He was detained in Cloverhill Prison for four days, after which he was removed from the State. In deciding to refuse leave to land, immigration officers of the Border Management Unit (BMU) searched the appellant’s phone. The immigration officers also asked questions about his relationships. The appellant brought judicial review proceedings in the High Court challenging the lawfulness of the refusal of leave to land decision and the search of his phone, which was unsuccessful. He subsequently appealed to the Court of Appeal.
Reasoning: In relation to the decision to refuse leave to land, the Court of Appeal, upholding the decision of the High Court, held that the consideration of the appellant’s brother’s activities, including a note stating ‘brother’s sham marriage?’ were part of a line of enquiry that occurred to the immigration officer as he proceeded and was one that was relevant to the consideration of the application for leave to land. The Court of Appeal also held that the appellant was given sufficient reasons as to why he was being refused permission to enter the State.
The second part of the judgment concerned the legality of the search of the appellant’s phone. Section 7(3)(a) of the Immigration Act 2004 provides that a non-national landing in the State shall declare and produce any documents they are carrying if requested to do so. The Court of Appeal examined whether the definition of documents under section 7(3)(c) of the 2004 Act includes information on a mobile phone in circumstances where the definition of documents includes “any information in non-legible form that is capable of being converted into legible form”. Having regard to the context and subject matter of the legislation, and the objective discerned therefrom, it was held that documents included electronic forms, including a mobile phone.
The Court of Appeal went on to examine the power of an immigration officer to retain and copy information from a mobile phone. The Court recalled that section 7(3)(b) allows an immigration officer to examine and detain, for such a time as they may think proper for the purpose of such examination, any documents so produced. The immigration officer took screenshots from the appellant’s phone and retained them. The Court held that the copying of documents, by way of screenshots, was not permitted by section 7 or any other legislation. The screenshots were held for more than a week after the appellant was removed from jurisdiction. The Court of Appeal held that the legislation only permits examination and detention of documents for such time as may be proper for the purpose of the examination. Thus, it was held that the purpose for which the documents could be retained had long passed. The immigration officer therefore acted in excess of the powers permitted by legislation and this was incompatible with Article 8 ECHR.
On this final point of appeal, Ní Raifeartaigh J. dissented. She stated that more precision was needed as regards a ‘search power’ when mounting a challenge for judicial review, particularly when it is brought with a reference to the European Convention on Human Rights. Ní Raifeartaigh J. argued that the way the case was pleaded and argued related to access to the phone and not to what happened in terms of the retention of the messages. In her view, the issue of copying and retention, as distinct from the issue of whether it was lawful to search the appellant’s phone in the sense of accessing and reading the messages on it, was not pleaded nor addressed by the appellant.
Decision: The appellant was found to be entitled to a declaration that the copying and retention of documents obtained from his phone was not carried out in a manner permitted under s.7(3) of the Immigration Act 2004 and was incompatible with the State’s obligations under Article 8 ECHR.