Immigration Solicitors

We are leading legal challenges on behalf of our clients who are subject to GPS tagging, including very vulnerable survivors of trafficking, torture, domestic violence, and FGM. The broad discretion to the Home Office as to whom they can monitor as a condition of bail gives rise to a number of concerns in relation to legality, data protection and the rule of the law. These include: - The proportionality of using 24/7 GPS monitoring and processing data for purposes that extend far beyond preventing individuals from absconding and facilitating their removal/deportation (nominally the purposes for imposing an electronic monitoring condition). As such, this measure may be disproportionately breaching the right to private and family life of our clients, as protected by Article 8 ECHR. - That the Home Office is in effect imposing 24/7 GPS monitoring on a blanket basis without sufficient regard to individual circumstances, such as health and past trauma. - That the Home Office is excessively retaining data derived from electronic monitoring, contrary to data protection regulations. We have seen first-hand the effect that the use of 24/7 GPS monitoring has had on those on immigration bail. Our clients have expressed that wearing GPS tags has had serious consequences on their mental health, including that they felt a sense of stigma due to the visibility of the tags, that they felt increasingly confined to their homes, and that they feel themselves to be under the control of the Home Office at all times. The introduction of GPS monitoring From January 2021, the Home Office introduced GPS tagging as a replacement for the traditional Radio Frequency (‘RF’) electronic monitoring devices used to monitor people on immigration bail in the UK. The statutory framework (as set out below) does not specify what technology would be employed and the decision to use GPS tags was made by way of policy promulgated by the Home Office. Where previously RF tags would monitor an individual’s presence or absence from a particular location at specified times, GPS monitoring, as currently conducted by the Home Office, involves real-time 24/7 tracking of an individual’s location. The result is, that if an electronic monitoring immigration bail condition is imposed after the adoption of GPS technology, an individual’s whereabouts can be tracked at all times, irrespective of (a) the scope and content of any other bail conditions imposed, and (b) the facts of the individual’s particular case. The data collected on a 24- hour basis will be retained indefinitely and used potentially for a wide range of purposes, some of which are unconnected with immigration bail conditions enforcement. The use of GPS tagging marks a significant increase in data collection and analysis of those subject to it, and potentially people close to that person. These tags record at all times the minute details of the tag wearer’s life. The data collected can be used against the individual at a later point, including to claims made under Article 8 of the European Convention on Human Rights (‘ECHR’). Unlike the RF tags, the GPS devices require charging, which can takeseveral hours during which time he subject cannot t effectively leave their home. If an individual fails to charge them sufficiently this will be treated as a breach of immigration bail. The Legal and Policy Framework Immigration bail can be granted to individuals without lawful status in the UK by the Home Office or by the First Tier Tribunal (FTT). Immigration bail can be granted subject to a number of conditions, these can for example include a reporting requirement (these conditions are set out at paragraphs 2(1)(a) – (f) of Schedule 10 to the Immigration Act 2016). A grant of immigration bail ends when an individual is either detained, removed from the UK, or granted leave to remain in the UK. Therefore, individuals can be subject to immigration bail conditions for years. Paragraphs 2(2) and 2(3) of Schedule 10 place a duty on the Home Office to electronically monitor those on immigration bail who could be detained because they are subject to either deportation proceedings or a deportation order. This duty is subject to two exceptions – namely that the electronic monitoring would breach an individual rights under the European Convention on Human Rights (‘ECHR’) and/or would be impractical (paragraph 2(7) of Schedule 10). The FTT is not permitted to impose an electronic monitoring condition where the Home Office considers that the condition would be contrary to an individual’s ECHR rights or impractical (paragraphs 2(7) and 2(8) of Schedule 10). However, if the Home Office determines that one or both of the exceptions does not apply, the FTT cannot determine otherwise. Thus, the FTT has no jurisdiction over whether an exemption applies nor does it have a discretion as to whether electronic monitoring should be imposed where it is a mandatory requirement. On 15 June 2022, the Home Office announced a 12-month pilot scheme to “test whether electronic monitoring is an effective means by which to improve and maintain regular contact with asylum claimants who arrive in the UK via unnecessary and dangerous routes and more effectively progress their claims toward conclusion”. Our legal team is public law director Ahmed Aydeed , solicitor Jonah Mendelsohn, Natalie Hawes, Krishmeela Rittoo and Conor Lamb at Duncan Lewis Solicitors. Chris Buttler KC, Dan Squires KC, Aidan Wills at Matrix chambers and Karen Staunton at 4King’s Bench Walk. This article was written by Jonah Mendelsohn, a lawyer in Duncan Lewis’ Public Law team and part of the GPS challenge legal team, in collaboration with Conor Lamb and Krishmeela Rittoo who are caseworkers in the Public Law team. Jonah has a experience in a broad range of human rights claims, judicial reviews, and asylum and immigration matters. His work involves assisting the team with case progression and third-party and client correspondence on a wide range of public law and human rights matters, often in relation to vulnerable clients. He has a particular interest in European human rights law and international public law issues, having completed an LL.M. in European Union law. For advice on any public law or immigration matter please contact Jonah on jonahm@duncanlewis.com or via telephone on 020 3114 1277.