Court of Appeal finds Immigration officer acted beyond powers

The Court of Appeal has recently found, by a two-to-one majority, that an immigration officer exceeded his permitted powers by retaining screenshots of messages from a man’s phone following an interview at Dublin Airport.

In the case of Akram v. Minister for Justice and Equality & Anor [2022] IECA 108 , Ms. Justice Aileen Donnelly held that the copying and retention of documents obtained from the phone was 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.

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

However, in this case, the examination came to an end when the immigration officer had read and considered the texts and 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.

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

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. If you would like to speak to someone about any immigration related matter, please feel free to contact our immigration law team at info@mcgrathmcgrane.ie.

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