Home Office deportation videos: do they breach migrants’ privacy rights?
Last week as part of a supposed crackdown on ‘illegal immigration’ the Home Office published a video showing detained migrants being escorted onto a plane to be removed from the UK. The move is evidently part of the Labour government’s drive to be visibly tough on immigration. It has already attracted fierce criticism from human rights groups as well as some MPs, who point out that the publicised filming of these actions is merely a cynical attempt to pander to the right, and more importantly, an act of performative cruelty against the already vulnerable individuals being removed from the country.
Though this might be the first time we have seen published footage of migrants being boarded onto planes for removal, the Home Office has previously published video footage of immigration raids taking place – for example, showing individuals being removed from their homes and put into vans whilst in handcuffs.
From a privacy law perspective the filming of these sorts of operations, and subsequent broadcast of that footage, could be deeply problematic. The individuals being filmed have rights under the Data Protection Act/GDPR, under the right to respect for private life under Article 8 of the European Convention on Human Rights / Human Rights Act, and under the English tort of misuse of private information. Do videos like the one published last week breach those rights?
There are nuanced questions to be considered here. It is frequently said that privacy is a balancing exercise – with the privacy rights of the individual on one side and any countervailing right to disclosure (for example freedom of expression, and/or consideration of the wider public interest) on the other. Those competing rights must be weighed against each other carefully.
The Home Office has stated that the flight contains both ‘foreign criminals’ and refused asylum seekers. It is well-established in caselaw that an individual who is under criminal investigation but has not yet been charged with an offence has a right to privacy – but that once they have been charged or convicted they lose that right.
However individuals who have been convicted of criminal offences do not waive all of their rights to privacy. Filming and photography is understood to be particularly intrusive. For example it is difficult to see how filming part of an offender’s sentence in prison – purely for the sake of making an example of them for the world to see - would be legally justifiable.
Putting aside the question of criminal offences, the Immigration Tribunal operates with a presumption of anonymity for asylum seekers, given the risks of persecution they face. That right of anonymity will often continue even where an asylum claim is refused – for example there are many cases in which the Tribunal finds that there is a credible risk to the individual in their country of origin, but that they can be sent to another country where they are not at risk.
The Home Office will undoubtedly argue that it is a matter of public interest that members of the public can see that the system of removals is working. The issue of Immigration (illegal or otherwise) undoubtedly remains high on the political agenda and in public discourse.
The videos published so far have all blurred out the faces of the people being removed or detained. This will go some way to protecting their privacy rights – however the censoring of individuals’ faces may also not be entirely effective at concealing the identities of those involved, as other information such as the location of an operation, or time/destination of a flight, could be used to enable ‘jigsaw identification’. This could have serious repercussions for example for individuals who had claimed asylum to flee from political persecution by government regimes within their home countries.
Moreover, migrants – and particularly asylum seekers – who find cameras thrust in their faces whilst they are in custody are likely to find this treatment invasive and humiliating, whether or not the video is shown to the public and/or whether or not the video actually identifies them. Given they are likely to already be vulnerable, the filming could cause them very significant distress and upset. Their consent is obviously not going to be sought – and the purpose of the filming is unlikely to have been explained to them.
If these types of operations by the Home Office continue to be filmed and shown off to the public, the Home Office may find itself having to answer serious questions about whether it has given due regard for the privacy rights of the individuals involved.
If you have concerns about the issues raised in this article, contact our specialist solicitors at Saunders Law today. We are experts in privacy, data protection and claims against public authorities including the Home Office.