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High Court finds use of electronic monitoring to be unlawful

The High Court has determined that the Home Secretary’s use of electronic monitoring was unlawful in respect of four claimants and the principles applied in the case will have a wider impact. The court also found that the Home Secretary can lawfully use data collected through electronic monitoring to decide application for leave made by people who have been tagged. The case is ADL & Ors v Secretary of State for the Home Department [2024] EWHC 994 (Admin).

Background

On 15 June 2022 the Home Office started a pilot scheme of electronic monitoring of people who arrived in the UK through a dangerous journey (i.e. aimed at those arriving by small boat). The pilot ended on 15 December 2023.

The bail guidance provides that quarterly reviews of the use of electronic monitoring on an individual should be carried out. As identified by the Independent Chief Inspector of Borders and Immigration in a report published in July 2022, there was a backlog in these reviews being carried out. According to the Home Office, this stood at 1,912 in February 2023. By 22 May 2023 this was down to 348 but it had increased again to 970 by 10 October 2023.

The Home Office’s evidence was that the backlog was created by a shortage of staff, a delay in implementing a new IT system, and a mistake in the guidance which required decisions to maintain electronic monitoring to be authorised by a higher executive officer.

There were four claimants in this case. ADL was subject to electronic monitoring from 14 July 2022 to 31 October 2022, Fabio Dos Reis (an EU national who has since been granted settled status under EUSS) from 7 March 2022 to 27 October 2022, BNE from 26 May 2022 to 7 November 2022 and PER from 19 July 2022 to the date of the hearing, albeit that it was varied to a “non-fitted” (handheld) device on 26 October 2023. The rest were subjected to “fitted” devices, i.e. the device was strapped to their ankle.

Three of these were deportation cases and one was non-deportation. One person had been granted bail by the First-tier Tribunal, the other three were granted bail by the Home Secretary. Representations had been made on behalf of ADL before electronic monitoring was applied to him, these were not considered by the Home Office. The quarterly reviews were carried out late in three of the cases.

The judicial review

The judicial review challenged the imposition of electronic monitoring, the review of it, and/or the retention of data gathered through the use of electronic monitoring. Between the date of the hearing and the decision, the Information Commissioner had issued an enforcement notice to the Home Secretary for data breaches relating to electronic monitoring and the Upper Tribunal had handed down judgment in the case of R (Nelson) v Secretary of State for the Home Department (2024) JR-2023-001472 (see our write up for more details).

The issues determined by the High Court were:

(1) Is the Secretary of State required to make a conscious decision and give reasons for imposing GPS monitoring? (I will treat this as two issues, concerning the alleged obligations: (a) to make a conscious decision: this is an issue in the cases of ADL and PER; and (b) to give reasons: this is an issue the cases of BNE, ADL and PER.)
(2) Is it lawful for the Secretary of State not to conduct quarterly reviews of GPS monitoring as required by his published policy? (This is an issue in the cases of Mr Dos Reis, BNE and PER.)
(3) If the Secretary of State acts unlawfully as identified under issues 1 and/or 2, will he breach the individual’s rights under Article 8 of the Convention?
(4) Was GPS monitoring necessary and proportionate in ADL’s and BNE’s cases?
(5) Is the Secretary of State required to make individual decisions on whether to retain an individual’s trail data? (This is an issue in all of the claimants’ cases.)
(6) Can the Secretary of State retain trail data for the purpose of informing future applications for leave to remain in the UK? (This is an issue in all of the claimants’ cases.)
(7) Was/is it necessary and proportionate to retain the claimants’ trail data? (This is an issue in the case of Mr Dos Reis, BNE and ADL.)

On issue 1(a) the claimants succeeded as the Home Secretary had failed to consider whether to imposing electronic monitoring on the relevant claimants would be impractical or contrary to their human rights.

On issue 1(b), PER did not succeed, but for BNE and ADL it was held that the Home Secretary failed in his duty to give reasons.

Permission to amend grounds in respect of issue 2 was refused. For issue 3, the failure to give reasons for imposing monitoring was not enough to render the use of electronic monitoring unlawful but the use of the condition on two claimants was unlawful because of a failure to consider representations made and whether using the condition would be impractical of a breach of human rights.

Issue 4 was also resolved in the claimants’ favour, with the High Court saying that the monitoring was no longer “necessary in a democratic society” after a certain period of time.

Issue 5 was resolved in favour of the Home Secretary. For issue 6, the court said that it is lawful for the Home Secretary to use data collected from electronic monitoring in deciding applications made by the claimants.

Issue 7 was resolved in Mr Dos Reis and ADL’s favour. Mr Dos Reis because it should not have been retained following revocation of his deportation order and ADL because his monitoring had at all times been unlawful (his was the non-deportation case).

Conclusion

While the findings on the lawfulness of electronic monitoring are useful, the court’s decision on the lawfulness of the Home Office using the monitoring data in deciding leave applications is concerning. As highlighted in our write up of the Nelson decision this data is frequently inaccurate. The previous article is also worth revisiting for any practitioners doing this work, as it concludes with a list of useful steps anyone with a client in this position can take.

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Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.

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