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Reported Case

High Court Finds Widespread Unlawfulness in Government’s Electronic Tagging Regime (16 May 2024)

Date: 16/05/2024
Duncan Lewis, Reported Case Solicitors, High Court Finds Widespread Unlawfulness in Government’s Electronic Tagging Regime

In a significant legal victory, the Administrative Court ruled in favour of Duncan Lewis clients in the case of ADL & Others v The Secretary of State for the Home Department [2024] EWHC 994 (Admin).

 

This case challenged the legality of the UK government's extensive use of electronic monitoring ("tagging") for immigrants, involving GPS devices, imposing round-the-clock surveillance on individuals through the collection and retention of locational (“trail”) data.

 

The Right. Honourable Mr Justice Lavender, in considering the distinct circumstance and arguments of the claimants, has provided extensive guidance on when imposing and maintaining electronic monitoring as an immigration bail condition will fail to meet the requirements of Article 8 ECHR, as well as the lawfulness of the practices associated with GPS monitoring in the immigration context more broadly.

 

The claim highlighted imposition of GPS tracking was disproportionate in the case of vulnerable individuals, including those with severe mental and physical health issues, as well as survivors of torture and trafficking, exacerbating their distress.

 

The claimants were supported with evidence from Bail for Immigration Detainees, Privacy International, and the Helen Bamber Foundation.

 

Key issues addressed in the judicial review included the failure of the Secretary of State to reasonably engage with individual circumstances and justify the imposition of GPS monitoring, a failure to conduct mandatory quarterly reviews of the monitoring conditions, and a disproportionate retention of collected data. The court found multiple breaches of procedural fairness and domestic law, which thus constituted a violation of Article 8 ECHR protecting the right to private and family life. The retention of data was also deemed unlawful for extensive periods for 3 of the 4 claimants.

 

Over the course of this litigation, we have seen changes to the Secretary of State's Bail Guidance and the discontinuation of certain policies including the 'Expansion Pilot' Policy of tagging small boat arrivals. In addition, an Enforcement Notice and Formal Warning from the Information Commissioner's Office has been made against the Home Office following a complaint from Privacy International, citing breaches of data protection law.

Background

 

Pursuant to Schedule 10 of the Immigration Act 2016, the Secretary of State is under a qualified duty, when granting bail to an individual subject to a deportation order, to impose an electronic monitoring electronic monitoring immigration bail condition. From 2021 onwards, this has been done through the use of a Global Positioning Service (‘GPS’) tracking device, referred to as a ‘tag’. This comes in the form of a bracelet, which subjects were required to strap to their ankles, while maintaining its battery life, at all times. The device collects locational or ‘trail’ data in real time on a 24/7 basis, allowing the Home Office to access the subjects’ exact location if certain conditions are met[1]. Not only was this imposed on those subject to deportation orders subject to the qualified duty under statue, but also to a random cohort of asylum seekers who had sought protection in the UK upon arrival via “unnecessary and dangerous routes” under an “Expansion Pilot” Policy, deployed to test the effectiveness of electronic monitoring in managing absconding rates.[2] Schedule 10 makes it explicit that this duty is qualified when such conditions would either be impractical or a breach of convention rights.

 

The initial rollout of these GPS tracking devices saw the widespread imposition of electronic monitoring conditions without any meaningful procedural safeguards. Routinely, vulnerable individuals were subject to this surveillance technology without due regard for their own personal circumstances. Not only was no reason given for the imposition of GPS monitoring, but there appeared to be no reasoning identifiable within grants of bail or any other documents received upon release from detention. As a result, thousands of vulnerable individuals were and continue to be subject to constant surveillance by the Home Office, without an explanation as to why this was the case. Included in this cohort were those with severe mental and physical health issues, as well as torture and trafficking victims whose experience of wearing an ankle bracelet amounted to an acute reminder of occasions upon which their movements were controlled by others.

 

In addition, the Secretary of State appeared not to be undertaking the quarterly reviews of such electronic monitoring conditions as required by his own published policy. He was also retaining data on a blanket basis, again giving no consideration to individual circumstances or requests for deletion. This data was supposedly retained for contact with law enforcement agencies, to manage absconding and bail compliance, and to aid in the making of decisions with regards to applications for leave to remain based on an individual’s family life.

The Claim

 

Duncan Lewis were instructed by 4 claimants who reflected its larger cohort of clients. ADL, the lead claimant, was an asylum seeker from Sudan initially selected for removal to Rwanda, Mr Dos Reis was a Portuguese national whose electronic monitoring condition had continued despite the revocation of his deportation order, BNE was a vulnerable Jamaican man living in the full-time care of his mother, and PER was a Nigerian trafficking victim who was precluded from accessing accommodation as a result of her GPS tag. This position was rescinded and the Secretary of State’s policy in relation to accommodating tagged individuals changed upon the filing of a claim for interim relief. Upon being granted appropriate accommodation for the individual for whom this was relevant, as well as the removal of their GPS tags in pre-action correspondence for all but one claimant, the Claimants proceeded in their application for judicial review in relation to the entirety of the GPS monitoring regime itself.

 

These included the failure to make a conscious or reasoned decision upon the imposition of GPS monitoring, as well as a failure to adhere to a common law duty to give reasons for electronic monitoring in all cases. The failure to conduct quarterly reviews as required by published policy was also raised, and these failings in domestic law were argued to amount to a breach of the “in accordance with the law” standard for the purposes of Article 8 ECHR. Two of the four claimants challenged the overall proportionality of the imposition of GPS tracking, while another was successful in challenging the delay in removing his electronic monitoring condition upon the revocation of his Deportation Order.

 

Two further issues were also raised – the Claimants argued that the Secretary of State’s blanket policy of retaining trail data was unlawful, as well as the retention of data for the purposes of deciding Article 8 claims for leave to remain. The crux of both of these arguments were that these policies were not in accordance with the relevant statutory purpose. Finally, the proportionality of data retention itself was challenged, as the Secretary of State continued to retain the trail data of some of the Claimants even upon the cessation of their electronic monitoring conditions.

Judgment

 

Breaches of Domestic Law and Procedural Fairness

 

On the alleged procedural failures, Lavender J was not directed to “any evidence that the defendant has any system for recording the reasons for decisions to impose EM conditions in cases where no representations have been received.”[para.129]. Relatedly, the Defendant was unable to provide a consistent account of when consideration would be given to an individual’s circumstances, and why the imposition of GPS tracking was appropriate, nor could he provide a record of any such consideration being given. As such, in the case of the ADL and PER, the Defendant breached his responsibility to make a conscious decision in accordance with the statutory framework.

 

The Claimants’ submissions that a duty arose at common law to give reasons for the imposition of GPS tracking held less water. Lavender J found that the Defendant’s process of providing reasons upon receipt of representations was a sufficient procedural safeguard in this regard. That said, this was not done in the case of ADL, where the decision maker never read his representations, or in the case of BNE, since the letter which was received in response to his representations said “nothing about the matters which make up the majority of the representations, namely the matters going to the assessment of the risk of absconding, re-offending or causing harm presented by BNE.  For instance, the letter did not say whether the defendant assessed those risks as low, medium or high.”  para.158]

 

Thus, the Claimants were successful in establishing two breaches of domestic law within the realm of procedural fairness. The Secretary of State’s duties to make a deliberate, conscious, and reasoned decision, and to share those reasons with the Claimants upon receipt of representations had not been fulfilled.

 

Similar procedural failings were found in relation to the Defendant’s failure to conduct quarterly reviews as required by published policy, and Lavender J provided guidance which stated that the failure to conduct quarterly reviews absent a good reason to do so. Unfortunately, the Claimants application to amend their case to complain about these failures was deemed to have been made too late. 

 

Breaches of Article 8 ECHR

 

Due to the Defendant having acted unlawfully through these procedural breaches, the question thus arose as to whether those breaches amount to a breach of Article 8 ECHR. This provision of the convention makes clear that any incursion into Article 8 must be “in accordance with the law”, meaning it must be lawful under national law, and that the character of that national law is clear, foreseeable, and adequately accessible. However, Lavender J, in assessing these domestic breaches, applied an analysis akin to the immigration detention cases of Kambadzi and O, where procedural breaches such as missed detention reviews were assessed for their materiality in relation to the overall decision to detain the individual. In other words, the breaches complained of in relation to EM were required to be sufficiently relevant to the decision to impose EM in order for a breach of Article 8 to be found. On this logic, Lavender J found that the initial failures to consider representations and make a conscious decision under the statutory framework were sufficient to result in an Article 8 breach, rendering electronic monitoring in the case of ADL and PER unlawful from the outset. By contrast, the failure to provide adequate reasons in response BNE’s representations did not reach this threshold.

 

Further breaches of Article 8 were found in relation to proportionality. This was argued by ADL and BNE, both of whom were assessed as suffering from depression, generalised anxiety disorder, and PTSD, the symptoms of which were actively worsening as a result of their GPS tags. Applying orthodox Bank Mellat proportionality analysis, the trial judge found that the Claimants’ electronic monitoring conditions became unlawful upon receipt of medical evidence. The Secretary of State, upon receiving reports as to the vulnerability of the Claimants and the active detriment caused by their GPS tags, was from that point onwards acting unlawfully, as the Claimants’ electronic monitoring conditions were no longer “necessary in a democratic society” [see paras. 253 – 254 and paras. 257 - 260].

The Retention of Data

 

In relation to the Claimants’ wider arguments on the retention and use of data were subject to detailed scrutiny from Lavender J, but he ultimately found that the Secretary of State could adopt a policy of blanket data retention, and to use such data in deciding future applicait0ns for leave to remain.

 

However, the Claimants were successful [see para.284-288] in demonstrating that the retention of data in their cases was not proportionate, for at least a period of their conditions.  For Mr Dos Reis, there was no reason to continue retaining data upon the expiry of a deportation order, and for ADL and BNE, it followed that the unlawfulness of the EM condition itself led to unlawfulness in the retention of data.

Consequences and Impact

 

While the final outcome as to declaratory relief remains to be confirmed, we can take away the following in summary from the High Court’s verdict:

  • A failure to meet the requirements reasoned decision in accordance with the statutory framework when imposing electronic monitoring will be unlawful;
  • Reasons must be given upon the receipt of representations, but not in their absence.
  • The Secretary of State is strictly required to follow his own policy in relation to conducting quarterly reviews, absent any good reason for not doing so;
  • Such domestic breaches will, when material to the decision to tag an individual amount to a breach of Article 8 ECHR;
  • Electronic Monitoring conditions are subject to proportionality analyses, and decision makers must engage with this framework particularly in the consideration of medical evidence;
  • For the moment, data retention practices are lawful, but these can continue to be challenged in individual circumstances, and along the lines of proportionality.

 

It is clear that Duncan Lewis clients have not only vindicated their own rights in demonstrating unlawfulness and having their own tags removed with the potential for damages in future, but also brought about meaningful legal change in relation to the electronic monitoring system. The Secretary of State has amended his Bail Guidance 5 times since this application for judicial review was filed, updating vulnerability considerations, clarifying the positon in relation to the consideration of representations, and introducing non-fitted devices as an alternative to GPS monitoring. In addition, the Information Commissioner’s Office (“ICO”) issued an Enforcement Notice in response to a complaint by Privacy International finding that the Home Office’s Electronic Monitoring Expansion Pilot breached data protection law. The ICO also issued a forward-looking Warning stating that future GPS monitoring which continues to incorporate the same failings would be subject to enforcement action. The Secretary of State’s ‘Expansion Pilot’ policy, which imposed EM on small boat arrivals, has now been discontinued, while the Modern Slavery Statutory Guidance being amended to ensure safe house accommodation even for those who have been tagged.

 

The Secretary of State’s ill-considered and inhumane regime should send a shudder down the spine of any student or practitioner with even a vague commitment to the rule of law and human rights. This litigation, we hope, represents a clear stance from Duncan Lewis and its clients that the flagrant and disproportionate use of surveillance technology against some of our society’s most vulnerable individuals will not be tolerated. Above all, the verdict from the High Court confirms one thing: our work has only just begun.

 

The Claimants were represented by Ahmed Aydeed, Conor Lamb, Lily Parrott, and Natalie Hawes, of Duncan Lewis Solicitors. Counsel instructed on this claim are Chris Buttler KC, Aidan Wills, and Rosalind Comyn of Matrix Chambers, as well as Karen Staunton of 4 King’s Bench Walk.

 

The Claimants and their representatives wish to express gratitude in particular to Privacy International, Bail for Immigration Detainees, and the Helen Bamber Foundation for their input to the claim, which included extensive witness evidence and advice, without which these proceedings would not have been possible.

 

Duncan Lewis Solicitors' award-winning public law team maintains top rankings in both Chambers and the Legal 500 directories. The team consistently takes on complex, high-profile challenges and holds the government accountable. Recent successes include landmark cases such as the Rwanda challenge, Manston House, and the Brook House detention centre inquiry.

 


[1] Such conditions include if a breach of electronic monitoring conditions occurred or an individual had absconded, for use in criminal proceedings, and for use in deciding applications for leave to remain in the United Kingdom on the basis of Article 8 ECHR.

[2] This has now been discontinued and has, to our knowledge, yielded no conclusive results.

 

Find full details of this case on Bailii’s website here.
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