Online Expression and Social Media

Much less is publicly documented here than in the rest of this guide. The material below comes from published guidance and from decided cases, and the points where the position is unclear are flagged as such.

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Can the Home Office consider what you post?#

Yes. For citizenship, the good character guidance includes a category called notoriety, which states that a person need not have been convicted to be notorious and that notoriety can be evidenced through items on social media. For permission to enter or stay, the non-conducive guidance allows caseworkers to rely on "relevant and reliable open-source information", meaning publicly available material, and lists writing, producing, publishing and distributing material, and running a website, among the ways a person may engage in behaviour it treats as unacceptable.[20]

The same guidance sets limits: decisions must be reasonable, proportionate and evidence based, allegations and vague generalisations are not sufficient on their own, and the standard is the balance of probabilities.

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What "public" means in practice#

In a 2022 country guidance case the Upper Tribunal heard expert evidence from a computer scientist at the University of Cambridge and put written questions to Facebook.

• Your privacy settings are not the whole picture. What others can see also depends on your friends' settings: you may not share your friends list, but if one of them shares theirs, you appear on it.
• The Tribunal accepted that it misunderstands the platform to think a setting limited to friends means only those friends can see what you post. Groups behave differently again.

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Deleting an account#

Facebook told the Tribunal that messages you have sent are stored in your friends' inboxes, and the expert evidence was that search engines keep cached copies for a period and that a platform cannot make a third party delete material it has already collected.

The Tribunal's own guidance is more favourable than that sounds. It held that closing an account in good time neutralises the risk of having had one, because the data left behind does not remain reachable indefinitely. The qualification is that this only holds where the account was not already being watched before it was closed.

Deciding what you are comfortable posting is more effective than deleting it later. If a case has already started, take advice before deleting anything.

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Phones#

If you are arrested, police may seize your phone and examine it, and immigration officers have at times taken and examined phones. In 2022 the High Court held one such Home Office policy unlawful. That policy no longer operates and the Home Office now works on the basis of consent, so you are being asked rather than compelled.[21]

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Finding out what is held about you#

You can ask both the police and the Home Office for a copy of the personal data they hold about you, free of charge. This is called a subject access request. There is an immigration exception, under which the Home Office can restrict what it gives you, but after two trips to the Court of Appeal it cannot be applied as a blanket: a decision must be taken separately each time. A request may come back incomplete, but it should not come back empty with no explanation. If that happens, raise it with a solicitor.[22]

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Practical steps#

• Look at your own account before anyone else does. Most platforms let you download everything they hold, and check who can see your older posts.
• If you are asked about your accounts as part of an application, take advice before answering, and keep your own record of anything you hand over.