This post provides an update on legal challenges to the Home Office’s policy and practice of requiring people on immigration bail to wear Global Positioning System (GPS) devices.

You can read more about the policy and the legal framework here and here. To summarise, in August 2021 the Home Office commenced provisions in the Immigration Act 2016 which provided for mandatory electronic monitoring of people on immigration bail who are liable to deportation. These provisions set out that such persons will not be subject to mandatory electronic monitoring if the Secretary of State considers that it would be impractical or contrary to the person’s rights under the European Convention on Human Rights.

The department’s immigration bail policy provides further guidance on when tagging will breach a person’s ECHR rights and prioritisation criteria. People being released from detention were prioritised over people already in the community, although the latter would be considered for tagging in due course.

The 2016 Act does not specify that electronic monitoring can or should be through the use of GPS tags, and arguably the legislation does not allow the department to do this. Previously, devices were used that allowed the department to check that people on immigration bail were at their accommodation at certain times of the day. In contrast, GPS tags mean that a person’s whereabouts at any given time can be tracked.

A contractor operates the system on behalf of the department. The Immigration bail policy explains that the contractor will notify the department of any breaches of electronic monitoring related immigration bail conditions, such as a failure to keep a device charged. Home office staff may access full trail data where a person absconds or where there is a legitimate and specific request by a law enforcement agency.

Proportionality

The Immigration bail policy suggests a category-based approach to exemption, so that only particularly vulnerable people may qualify as exempt from the tagging duty. In our experience, in practice, the department is applying a high evidential threshold to requests for a person not to be tagged or to have tags removed. Detailed reports from consultant psychiatrists showing that tagging has caused and/or is likely to cause a person’s mental health to deteriorate have been rejected. The department has rejected representations supported by strong medical evidence on behalf of survivors of torture and trafficking for whom tagging is redolent of past ill-treatment. We also have one client who because of a tag was then unable to have scans that were necessary as part of investigations for a life-threatening illness.

We have argued in representations and judicial review grounds that the very fact of wearing a tag represents a very significant interference with a person’s private life. Article 8 requires that in every case the level of interference to a person’s private life has to be weighed against the justification for tagging.

In one of our cases (KZR), the Secretary of State explained that the statutory purpose of electronic monitoring is “to ensure compliance with the conditions of immigration bail, which in turn relates to preventing absconding, criminal offending and harm to the public”. This means that if the risks of harm, re-offending and absconding are low, the level of interference that tagging represents, even in the absence of evidence of vulnerability, is such that it is unlikely to be proportionate. Even if the risks are not low, tagging might be justifiable for some time, but if the person complies should then be removed.

Balancing exercise

In addition to straightforward proportionality arguments, we have argued that the guidance in the Immigration bail policy is unlawful because it does not guide decision-makers to undertake the necessary balancing exercise required by Article 8. This ground is more difficult following recent Supreme Court jurisprudence on policy challenges, but we have had permission granted.

Collecting data to assess article 8 grounds

Controversially, where an individual has made article 8 based submissions the Home Office staff dealing with those submissions can request access to the full trail data to “support or rebut the claims”.

The Secretary of State has explained in grounds of defence that the purpose of electronic monitoring is to ensure compliance with conditions of immigration bail. It is difficult to see how collecting and allowing officials to access trail data to assess article 8 submissions is consistent with this.

A number of legal challenges have argued that the 2016 Act does not allow the department to collect trail data for this purpose. Arguments around data collection and retention are based on article 8 and data protection legislation.

Bringing a claim

The Immigration bail policy provides that electronic monitoring must be reviewed at certain intervals and at least quarterly. Copies of these reviews should be requested in pre-action correspondence and as disclosure in judicial review proceedings. In a number of our cases, the reviews have simply not been completed. Any period of tagging not properly authorised by a review will likely breach article 8 because it is not in accordance with the law and may give rise to a claim for damages.

Judicial review claims challenging immigration bail conditions must ordinarily be issued in the Upper Tribunal Immigration and Asylum Chamber.

We have had cases settle pre-action and early on in judicial review proceedings. We have five cases (listed below) settle shortly after permission was granted. The most recent case was granted permission in January 2023 and was listed to be heard by the President of the Upper Tribunal on 23 March 2023. While these settlements represent a vindication for our clients and are obviously in their best interests, it means that the department can continue to operate its policy of GPS tagging without it having been scrutinised by the courts at a substantive hearing.

Claims for damages for breaches of article 8 should be pursued where appropriate. These are best added to any unlawful detention claim a client is pursuing. In a number of our cases, the order disposing of the claim has recorded in the recital that any damages claim can be pursued in the county court. This avoids complications that can occur with having parallel claims on overlapping issues for the same client and seeking to have them linked at a later stage.

Wilson Solicitors LLP GPS tag cases which settled following grants of permission

R (MDS) v SSHD, CO/2247/2021 (permission granted 6 October 2021)

R (AXR) v SSHD, CO/1357/2022 (20 June 2022)

R (KZR) v SSHD, UT ref: JR-2022-LON-000977 (28 June 2022)

R (TAI) v SSHD, CO/371/2022, (13 September 2022)

R (RKM) v SSHD, UT ref: JR-2022-MAN-000099 (23 January 2023)