The UK Home Office’s policy of placing those released from immigration detention under 24/7 GPS surveillance, by shackling them with an ankle tag or by requiring them to carry a GPS device, has been challenged in a London Administrative Court again.
The judgment follows a court decision and an enforcement notice issued to the Home Office by the Information Commissioner’s Office (ICO) back in March, which found that the Home Office’s GPS monitoring of migrants breached UK data protection law.
Background
The Home Office’s electronic monitoring policy is only a piece of the puzzle that forms the UK’s hostile environment measures – immigration policies and procedures designed to attack the human rights of undocumented people, by making life in the UK as difficult as possible for them.
According to Schedule 10 of the Immigration Act 2016, the Home Office can impose an electronic monitoring condition on anyone released from immigration detention, and enforces mandatory GPS tracking for those facing deportation or those who are subject to a deportation order. The Home Office’s Immigration Bail Policy details the arbitrary and invasive nature of electronic monitoring – you are either fitted with an ankle tag that you cannot remove, which vibrates to warn you that you are breaching a condition of your immigration bail; or you are given a non-fitted device, which you must carry with you at all times, and in addition to recording your trail data, it will vibrate to alert you to submit a fingerprint sample at any moment. These requests for fingerprints are made at random to verify that the correct individual is carrying the device. In 2023, there was a 56% increase in the number of people GPS tagged as a condition of immigration bail.
Additionally, an Electronic Monitoring Expansion Pilot to immigration bail conditions released in June 2022 outlined a procedure for GPS tagging asylum claimants who arrive in the UK via what is described as “unnecessary and dangerous routes.” Although this pilot scheme ended in December 2023, this was arguably another tactical measure which attempted to deter those fleeing war, torture, and persecution from seeking safety in the UK.
Legal Challenges to the Home Office Policy
ICO Notice
On 1st March 2024, the Information Commissioner’s Office issued an enforcement notice and a warning to the Home Office for failing to sufficiently assess the privacy risks posed by the aforementioned Electronic Monitoring Expansion Pilot. It was found that the Home Office failed to:
- Sufficiently assess the privacy intrusion of the continuous collection of people’s location information; and
- Sufficiently assess the potential impact on people who may already be in a vulnerable position due to their immigration status, including conditions of their journey to the UK or English not being their first language.
The Home Office was unable to explain why it was necessary or proportionate to collect, access, and use people’s information via electronic monitoring for the pilot’s purpose, including failing to evidence that it had considered less intrusive methods. The information gathered from this pilot will continue to be available to the Home Office until all the data has been deleted or anonymised – meaning there is potential that it can accessed and used by the Home Office and potentially, third-party organisations.
Nelson
Then on 12th March 2024, the Upper Tribunal (Immigration and Asylum Chamber) ruled in the case Nelson v Secretary of State for the Home Department. This case was brought by Mark Nelson, who was fitted with a GPS tag in May 2022 when he was released from detention. Nelson alleged that his GPS tagging had been unlawful for over a year as the Home Office failed to review his tagging in a lawful or timely manner, which was a breach of his right to privacy under Article 8 of the European Convention on Human Rights (ECHR). There was also a period of nearly 6 months in which the GPS tag was not functioning correctly, which the Home Office was aware of. The Court ruled in Nelson’s favour, however, found that his tagging at the time of the hearing was proportionate as reviews of his tag had been conducted. Nelson intends to appeal this part of the decision to the Court of Appeal.
ADL & Others
In the third and most recent blow to the Home Office’s electronic monitoring policy, a ruling was handed down on 15th May 2024 in ADL & others v Secretary of State for the Home Department. This case was brought by four claimants without British citizenship (including asylum seekers and survivors of trafficking) who were detained by the Secretary of State and subsequently released on immigration bail subject to electronic monitoring (“EM”) conditions. Between them, the claimants challenged a number of matters relating to:
- The imposition of an EM condition in their case;
- The review of the EM condition in their case; and/or
- The retention of the data (“trail data”) gathered by reason of the operation of the EM condition in their case.
The imposition was challenged on the basis that the above breached their right to a private and family life under Article 8 of the European Convention on Human Rights (ECHR).
The claimants include 26-year old Portuguese national (Fabio Dos Reis), a 36-year old Jamaican national with learning difficulties and a decision recognised survivor of modern slavery (BNE), a 25-year old Sudanese national who was subjected to detention and torture in Khartoum and a recognised survivor of human trafficking (ADL), and a 59-year old Nigerian national who was subject to female genital mutilation as a child (PER), who now has four children and various health problems.
Interference with Article 8 Rights
In order for a public authority to interfere with an individual’s Article 8 rights, the authority must show that its action is lawful, necessary and proportionate in order to:
- Protect national security;
- Protect public safety;
- Protect the economy;
- Protect health or morals;
- Prevent disorder or crime, or
- Protection the rights and freedoms of other people.
In this case, it was found that the Home Office failed to show proper cause for imposing electronic monitoring conditions on the claimants. For ADL, who was tagged under the Expansion Pilot, GPS tagging was unlawful as the Home Office failed to explain their justification for tagging him, after he had questioned this decision. For both ADL and PER, the Home Office did not provide adequate consideration as to whether GPS tagging would be contrary to their rights under the European Convention of Human Rights. As a result, GPS tagging for these two claimants was not in accordance with the law and a breach of their Article 8 right.
Necessity and Proportionality
Furthermore, in order to determine the necessity and proportionality of a lawful interference with human rights, you must address the four questions set out in the case of Bank Mellat v Her Majesty’s Treasury (No 2):
- Whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
- Whether the measure is rationally connected to the objective;
- Whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and
- Whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute it its achievement, the former outweighs the latter.
The Court agreed that no issue arises in relation to questions (1) and (2), as the objectives of preventing absconding and preventing offending were weighty ones which justified limiting a fundamental right and that EM conditions were rationally connected to those objectives. However, considerations where made in relation to (3) and (4).
For BNE, it was found that his tagging was unlawful for over a month as evidence was submitted to the Home Office suggesting that the electronic monitoring was a likely cause in the further deterioration of his mental health. The Home Office took 62 days to respond to this, which the Court found to be too long.
For ADL, who also submitted medical evidence to the Home Office to the effect that electronic monitoring would have a significant impact on his mental health and that there was a risk of re-traumatising him as he is a victim of trafficking, it was found disproportionate to maintain his electronic monitoring conditions. His GPS tagging was found unlawful from when the Home Office responded to the submission of his evidence.
Mr. Justice Lavendar held, amongst other things, that:
- The failure to consider whether the imposition of the condition would be impractical or contrary to ECHR rights meant that the interference with those rights was not “in accordance with the law” for the purpose of Article 8;
- There was no good reason for the Secretary of State’s departure from his published policy by failing to conduct quarterly reviews (though he refused the Claimants permission to amend their grounds to challenge the failure to conduct reviews in accordance with the policy; and
- That GPS tracking and/or retention of data derived from that surveillance constituted a disproportionate interference with their Article 8 rights.
This judgment is a massive win for the claimants involved, and also further exposes how immigration authorities dismiss and disregard the human rights of migrants, specifically, their Article 8 right to respect for private and family life in regards to electronic monitoring.
Thinking Ahead
GPS monitoring is a highly punitive and intrusive surveillance measure which gathers your location data 24/7. The Home Office’s stated objective for using ankle tags is to prevent those on immigration bail from absconding and to monitor their compliance with immigration bail conditions. However, it can be argued that this level of surveillance is obscure and beyond what is necessary to prevent absconding. In 2020, it was found through a Freedom of Information Request that only 1% of people released from immigration detention tried to abscond.
Users of non-fitted devices described the experience as a “type of torture” and spoke of feeing “constantly on edge.” Interviewees shared that these non-fitted devices vibrate up to 10 times a day at random intervals, and if users are unable to scan their finger quickly, they are considered to be in breach of their electronic monitoring bail condition.
Despite the ICO challenging the Home Office and judgments which have called out the invasive and dehumanising nature of electronic monitoring, migrants in the UK such as Mark Nelson continue to be tagged. Although there is overwhelming evidence to suggest that 24/7 surveillance is intrusive and damaging to individuals, both mentally and physically, the UK Home Office continues to impose this form of arbitrary surveillance. These hostile policies have no place in our system, and the resources used by the Home Office to undermine individual rights and freedoms should be redirected to find safe and humane routes to migration.
