Last August, the provisions in Schedule 10 of the Immigration Act 2016 providing for foreign national offenders liable to deportation to be subject to mandatory tagging as a condition of immigration bail were commenced. This provision was designed to implement the 2015 Conservative party manifesto commitment to “introduce satellite tracking for every foreign national offender subject to an outstanding deportation order or deportation proceedings”.

The Home Office has updated its Immigration bail policy to reflect this, with changes most recently made on on 31 January 2022. The new style tags are GPS devices which can track where a person is at any given time. They are fitted on a person’s leg and must be charged daily.

People already on bail who are subject to mandatory tagging will be the subject of a review and devices will start to be fitted unless an exemption applies. The policy provides that such people may have devices fitted at reporting centres or at home.

A bail condition requiring a person to wear a GPS tag can be combined with restrictions on their movements, including curfews and conditions on where they can go (called inclusion or exclusion zones).

When do people not have to be tagged?

Schedule 10 provides exemptions for people who are under 18, or for mentally unwell people who are released on to immigration bail following detention under sections 37 and 41 of the Mental Health Act 1983 whilst they remain subject to a supervision order.

There are also two more general exceptions: where it would be contrary to a person’s Convention rights and where it would be impractical.

The Immigration Bail policy singles out a more major practical barrier: “[t]here will be fewer devices available than the number of individuals subject to the duty”. It then provides an order of priority based on the risk of harm that the person poses, with foreign national offenders who pose a very high risk of harm to the public given highest priority, and EU nationals or their family members subject to deportation given lowest priority.

In terms of people already on immigration bail, those who pose a lower risk of harm and have been compliant with bail conditions are less likely to be prioritised than higher risk people who have not complied with their bail conditions, even if they have been at liberty for a long time.

The policy states that a person must be given the opportunity to submit representations before a decision is made to impose a GPS tag.

It sets out minimum levels of authority for making decisions. For example, where the statutory duty to tag applies, any decision not to tag either because it is impractical or because it would breach a person’s Convention rights must be made at Assistant Director level or above. A decision not to impose a tag for any other reason must be made at Deputy Director level or above. Where the statutory duty does not apply, e.g. in relation to asylum seekers without criminal convictions, any decision to impose tagging must be made at Deputy Director level or above.

The policy provides very little guidance on when imposing GPS tagging may breach Convention rights. There is a list of factors that “should be taken in to consideration”. This includes, for example, whether:

• there is “strong independent medical evidence” suggesting that tagging “would cause serious harm to the person’s mental or physical health”;
• a claim of torture has been accepted by the Home Office or a court;
• there is a conclusive trafficking or modern slavery decision;
• the person’s mental capacity means they will not understand what the tag entails;
• the person is 18+ weeks’ pregnant or has given birth in the past three months.

These factors suggest that the bar is set high. All the more so given that the policy makes clear that the presence of one of these factors does not prohibit tagging as such: it just requires the decision-maker to consider whether it is appropriate. It may be that “on balance it may still be appropriate to maintain EM [electronic monitoring] due to the other factors present in the case”.

Accessing the GPS data

“Trail data” – information about the whereabouts of people wearing GPS tags – will be held by the tagging contractor. The policy states that this data “may be accessed by the Home Office” where one or more of a list of criteria applies “and where proportionate and justified in the circumstances in accordance with data protection law”.

The factors include where a breach of bail conditions has occurred, in order to consider what action to take in response to a breach and locate the person. There is also a potentially very wide ranging criterion allowing the department to access trial data “where it may be relevant to a claim by the individual under Article 8 ECHR”.

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This regime will inevitably be challenged both at a general level (e.g. the wide ranging purposes for which the Home Office can access trail data and the lack of safeguards regulating this) and on individual facts (e.g. because the interference with private or family life is disproportionate to the level of risk that the person poses). It seems likely that it will eventually be rolled out beyond the foreign national offender cohort.