A Court of Appeal judge agreed with the other conclusions in an immigration appeal but disagreed with deciding whether messages copied from Moeen Akram’s phone were unlawfully retained, saying the issue had not been properly pleaded or addressed at trial.
In a judgment delivered on 12 May 2022, Ní Raifeartaigh J. said the appeal had challenged the search of Mr Akram’s phone in the sense of accessing and reading its contents. In her view, it did not separately challenge the copying or retention of messages after an immigration officer refused permission to land.
The judge stressed that the court’s other conclusions, set out in Donnelly J.’s judgment, were not in dispute between the judges. Her disagreement was limited to the conclusion that section 7 of the Immigration Act 2004 did not authorise retaining screenshots after the refusal decision, and that the retention was not “in accordance with law” under Article 8 of the European Convention on Human Rights.
Ní Raifeartaigh J. said the original grounds sought a declaration that the phone search breached Article 8, but did not explicitly refer to copying or retaining information. The High Court had treated the complaint as concerning the taking of the phone and reading its messages. It refused the relief sought and did not rule on whether retaining information acquired from the phone was lawful.
The appellant’s written submissions mentioned copying and retention, including the absence of safeguards, but Ní Raifeartaigh J. understood those points as part of an argument that section 7 should be read narrowly and did not authorise searching a phone. At the appeal hearing, counsel accepted that the appellant had not challenged section 7 itself for incompatibility with the Convention and had not pleaded the Article 8(2) requirement that an interference be necessary in a democratic society.
The judge said a general challenge to a “search” did not automatically raise every distinct step, such as copying, retaining, sorting or destroying digital information. She considered that the respondents had not had an adequate opportunity to address the specific retention issue, and that the High Court had made no first-instance decision on it.
She therefore would not have ruled on retention as a separate basis for declaring the conduct unlawful. She said the appellant might have succeeded had he pleaded a specific challenge to the statutory safeguards or to the exercise of the power as it related to retention. She agreed with all other aspects of Donnelly J.’s judgment.