High Court clarifies the limits of electronic monitoring immigration bail powers

The High Court has ruled on the limits of immigration bail powers in the context of electronic monitoring conditions where there is no prospect of the Home Office removing the tag wearer from the UK. The case is R (Mustafa Taskiran) v Secretary of State for the Home Department [2025] EWHC 2574.

The High Court’s judgement builds on an important line of case law that establishes that immigration detention powers and, by extension, immigration bail powers can only be applied where there is some prospect of removal. In a significant development the High Court has extended the application of these principles to the exercise of electronic monitoring powers.

Background

The claimant entered the UK as a Turkish national with his family on 20 June 1990. He was granted indefinite leave to remain as a refugee on 8 March 1994. On 6 February 2002, the Turkish authorities withdrew his Turkish citizenship due to his failure to complete national service in Turkey. He became stateless as a result.

The claimant committed 54 offences between 1994 and 2014. On 29 January 2014, the claimant was sentences to six years and nine months’ imprisonment for one offence of rape and one offence of sexual assault. He was released from prison on 16 December 2016 but was then detained by the Home Office. A judicial review to the lawfulness of his immigration detention was refused by the High Court on 30 October 2017. At the time of this judgement, the UK was trying to make use of an EU treaty with Turkey for the removal and readmission of individuals without immigration status.

The claimant made an application for indefinite leave to remain in the UK as a stateless person which was refused by the Home Office on 6 November 2017.

On 23 February 2018, the claimant was made subject to a deportation order. He brought appeals against this decision, which were refused, and he became appeal rights exhausted following a determination of the Upper Tribunal on 5 September 2018.

While in detention, the Home Office attempted to obtain an emergency travel document to facilitate his removal to Turkey. However, this was refused by the Turkish authorities given the revocation of his citizenship. 

On 17 September 2018, the claimant was released from detention on immigration bail subject to electronic monitoring and curfew conditions. He remained continuously subject to electronic monitoring until he was once again detained by the Home Office on 12 January 2023. In the intervening period, Turkey withdrew from the EU returns agreement on 24 July 2019. The High Court’s judgement notes that the Home Office’s detailed grounds of defence stated that the Home Secretary:

…has not given up on the prospect of removing the claimant to Turkey and that she intends to remove him whenever she is able to do so. However, the Secretary of State has not filed any evidence… nor elsewhere has the Secretary of State identified any steps which she has taken since 11 March 2020 to persuade the Turkish authorities to issue an ETD.

[paragraph 15]

The claimant was released from the further period of detention following a grant of Tribunal bail on 13 February 2023, which was then transferred to the Home Office.

The claimant then brought the present judicial review proceedings against the decision to re-impose electronic monitoring. As addressed below, he also attempted to amend his grounds to challenge the earlier 2018 decision to impose the first electronic monitoring condition.

The judicial review

The claimant was successful in his first ground on the basis that the electronic monitoring power in Schedule 10 had been unlawfully exercised, because there was no prospect of removal.

The High Court’s analysis of his ground relied on the House of Lords judgment in R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207. Khadir focused on what is meant by ‘liable for detention’. This in turn is crucial to the exercise of the powers of immigration bail, because the claimant was granted immigration bail (and by extension his electronic monitoring condition) on the assumption that he was liable for detention pending deportation.

On these facts, Lavender J found that this assumption was wrong because in accordance with Khadir where there is no prospect of removal an individual can no longer be said to be liable to detention [paragraphs 63 and 64]. As such, the claimant could not be granted (or remain on) bail if he was not liable for detention [paragraph 67].

It did not matter that the claimant had not raised an explicit challenge to the grant of bail given that he had clearly established that removal was no longer a possibility. The Home Office argued that it was still seeking to remove him and that he was liable for detention as long as the deportation order remained in place. Lavender J rejected this argument by relying on the Privy Council’s judgement in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 [paragraph 38]. Tan Te Lam establishes that it is for the Court to establish if removal remains a possibility.

Notably, the High Court refused permission for the claimant to amend his challenge to include the earlier period of tagging. This was because the claim had initially only been brought against the 2023 decision to impose electronic monitoring and the claimant’s tagging from 2018 until his detention in 2023 was a distinct decision. Any challenge was also significantly out of time and there had been no application to extend time.

In grounds two and three, the claimant raised challenges to how the electronic monitoring powers were exercised (rather than whether the Home Office had the power to impose the condition in the first place). These grounds follow on from the decisions of Mark Nelson v Secretary of State for the Home Department [2024] UKUT 141 (Free Movement write up here) and R (ADL and others) v Secretary of State for the Home Department [2024] EWHC 994 (Free Movement write up here).

The claimant alleged that the Home Office had failed to carry out electronic monitoring reviews in time and to adequately consider his individual circumstances in its reviews. Following ADL, the judgement re-affirmed the low threshold needed for the Home Office to demonstrate that it had made a reasoned decision as to whether GPS tagging would breach a person’s Convention rights. However, going back basic public law principles, Lavender J made obiter findings that the Home Office had failed in its reviews to consider relevant considerations (and had unlawfully considered irrelevant considerations). This was due to omissions and inaccurate information about the prospect of removal.

The fourth ground of appeal was that the claimant’s subjection to an electronic monitoring condition was in breach of his rights under Article 8 ECHR. As Lavender J found that the electronic monitoring condition was unlawful from the outset, the electronic monitoring condition was a violation of the claimant’s Convention rights.

Conclusion

The first recorded cases about GPS tracking handed down last year focused on the lawful exercise of electronic monitoring powers. This case is a welcome reminder (even if its facts are highly specific) for practitioners to consider whether there is even a power to impose a particular bail condition.

The Court’s approach to assessing the facts around whether the claimant could be removed also stands in contrast to the curtailment of its powers to do the same thing in the context of Hardial Singh challenges to immigration detention through the Illegal Migration Act.

Finally, even as the obligations on the Home Office to make a conscious decision are not onerous in nature, its reviews clearly failed to consider relevant material. In light of the very low rates at which the Home Office has removed electronic monitoring conditions through the review process, this remains an important avenue of challenge.