December 11, 2023

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Court finds immigration officer acted beyond powers in retaining screenshots from phone

An immigration officer acted beyond his permitted powers by retaining screenshots of messages on a man’s phone following an interview at Dublin Airport, the Court of Appeal has found, by a two-to-one majority,

In a ruling, Ms Justice Aileen Donnelly said that the copying and retention of “documents” obtained from the phone were carried out in a manner not permitted under the Immigration Act 2004 and was incompatible with the State’s obligations under Article 8 of the European Convention on Human Rights.

The legislation does not permit the copying of “documents”, which the judge said includes electronic material, and only allows for examination and detention for such time as may be appropriate for the purpose of the examination.

The phone search itself did not contravene the Act, which provides for access to “information stored in a non-legible form”, she said. The control of entry to the State may permit a broad examination of the documents on a phone, including personal correspondence.

Ms Justice Donnelly noted the immigration officer demanded the man hand over his phone, pursuant the provisions of the 2004 Act, following the man’s arrival at Dublin Airport in October 2017. The officer searched the phone and text messages, which led to questions regarding the man’s relationship with a woman and whether he was planning a marriage of convenience.

The man, a national of Pakistan and a student in Cyprus, was refused permission to enter after an immigration officer searched his text messages during the court of an interview.

He was held at Cloverhill Prison for several days before he was removed from the State.

Shortly afterward he initiated a judicial review challenging his detention and the decision to refuse him entry into Ireland. The claimed search of his phone breached his right to privacy, under Article 8.

The High Court refused the reliefs he sought.

‘Clear breach’ of law

In the appeal court, the man also took issue with the retention of screenshots taken of his phone messages, as evidenced by their release to him under the Freedom of Information Act. It was noted this element of his appeal was not properly pleaded.

Ms Justice Donnelly said the immigration officer examined the phone and questioned the man accordingly. The examination, under the 2004 Act, may only take place when a person is landing or embarking at any place in the State.

The examination came to an end when he had read and considered the texts and, she said, there was a “clear breach” of the Act when he retained the photos instead of returning them or at least destroying all trace of them.

She noted there may be another basis for seizing and retaining evidence, such as under the Criminal Law Act 1976, but that does not arise in this case, she said.

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The Court of Appeal dismissed the grounds of the man’s appeal that sought to overturn the decision to refuse him entry to the State. The court found, among other things, that he was given sufficient reason as to why he was refused entry.

Ms Justice Ann Power agreed with Ms Justice Donnelly’s conclusions, while their colleague Ms Justice Una Ní Raifeartaigh agreed with all except for the finding about retention of the screenshots.

It was her view that the court should refrain from ruling on the retention point as she said it was not properly pleaded or a part of the High Court’s decision.

She said in a separate judgment that it was difficult to envisage the Minister for Justice and Equality successfully resisting the argument that the retention went beyond the period authorised by statute, but it was unsurprising the Minister did not think this was a case she had to meet and thus did not argue this point specifically.