![]() ![]() ![]() 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. Collecting data to assess article 8 groundsĬontroversially, 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”. This ground is more difficult following recent Supreme Court jurisprudence on policy challenges, but we have had permission granted. 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. Even if the risks are not low, tagging might be justifiable for some time, but if the person complies should then be removed. 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. 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”. 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. 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. 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. 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. 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. 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. 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. 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. 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. In contrast, GPS tags mean that a person’s whereabouts at any given time can be tracked.Ī contractor operates the system on behalf of the department. 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. ![]() 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. 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 department’s immigration bail policy provides further guidance on when tagging will breach a person’s ECHR rights and prioritisation criteria. 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. 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. You can read more about the policy and the legal framework here and here. 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. ![]()
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