There is widespread media coverage today of the number of foreign criminals that have disappeared while on immigration bail in the past few years. The Mirror gives a flavour:

Killers and rapists among hundreds of foreign criminals lost by Home Office… figures show 450 foreign national offenders absconded in two-and-a-half years to the end of June.

The figures, obtained under the Freedom of Information Act by the Press Association, relate to the number of foreign criminals with whom the Home Office has lost touch following their release from detention.

A report last year by the immigration inspector, David Bolt, pointed out that the Home Office’s own hostile environment policies were making it more difficult to keep track of foreign national offenders in the community. Bolt wrote

in line with the idea of a ‘hostile environment’, many FNOs were not receiving any assistance with somewhere to live. As a result, the Home Office did not have a fixed address for some FNOs at the point they were released.

In response to that report, the Home Office said that it was considering “granting discretionary leave to non-detained FNOs where the conditions in their country of origin were such that there was no prospect of removal in the foreseeable future”. The department’s response to today’s media furore, by contrast, is to talk tough. Of particular interest to immigration practitioners is the reference to mandatory electronic monitoring:

We never give up trying to locate absconders, which is why we have introduced measures in the Immigration Act 2016 that will mean that in the future all non-detained foreign nationals subject to deportation proceedings or a deportation order will be considered for electronic monitoring.

The relevant provisions of the 2016 Act, which have not yet been commenced, say that there must be an electronic monitoring condition when immigration bail is granted to a person detained or liable to detention because deportation is being considered or pursued against them.

Schedule 10, paragraph 2(5) states that where the imposition of an electronic monitoring condition is considered by the Secretary of State to be impractical or contrary to the person’s human rights then an electronic monitoring condition does not need to be imposed but at least one other condition must be.

Extraordinarily, the tribunal has no discretion in this regard: paragraph 2(7) provides that the tribunal is only free from the obligation to impose such a condition if the Secretary of State informs the tribunal that she considers it to be impractical or a breach of the person’s human rights, and if the Secretary of State does so then paragraph 2(8) provides that the tribunal must not impose such a condition. The tribunal cannot consider for itself whether it would amount to a breach of human rights.