High Court finds Home Office’s electronic monitoring of migrants on immigration bail was unlawful in several respects

In a lengthy judgment handed down today, the High Court has found that a number of aspects of the Home Office's GPS tagging of four migrants on immigration bail was unlawful.

Image credit: WikipediaADL & Ors v Secretary of State for the Home Department [2024] EWHC 994 (Admin) sees the High Court consider the claims of four people (ADL, BNE, PE and Dos Reis) who were detained by the Secretary of State and then released on immigration bail subject to an electronic monitoring (EM) condition.

The judgment is available here (and is available here for members of EIN).

Mr Justice Lavender ruled: "I have found that the defendant acted unlawfully in three different ways. I have found that: (1) The defendant acted unlawfully in ADL's and PER's case by not considering whether the imposition of an EM condition would be impractical or contrary to ADL's or PER's Convention rights. (2) The defendant also acted unlawfully in ADL's case by not considering the representations made on behalf of ADL. (3) The defendant acted unlawfully in BNE's and ADL's case by not giving reasons for rejecting the representations made on behalf of BNE and ADL. Moreover, had their claims been brought in time, I would have found that the defendant acted unlawfully in Mr Dos Reis', BNE's and PER's case by not conducting a quarterly review of their EM conditions in time."

The judgment provides general guidance on the lawfulness of electronic monitoring.

Duncan Lewis solicitors acted for the four claimants in the case. In a thread on X, Duncan Lewis noted that the claimants, who included vulnerable asylum seekers and trafficking survivors, were forced to wear GPS ankle tags that recorded their location on a 24/7 basis.

"Their individual circumstances were not considered, nor were reasons given for these decisions. Mr Justice Lavender found these elements to amount to breaches of procedural fairness which rendered their electronic monitoring not 'in accordance with the law' for the purposes of Article 8 [European Convention on Human Rights (ECHR)]," Duncan Lewis added.

Privacy International campaigns to end the electronic tagging of migrants and has extensively covered issues around the practice.

In an initial reaction following the judgment, Privacy International commented on X: "The judgment reveals significant issues of procedural fairness, including failures by the Home Office to explain why it was imposing or maintaining GPS tracking. The court also found that the Home Office unlawfully failed to carry out reviews of multiple claimants' GPS tracking conditions in breach of the right to private life of two of the claimants. In two of the cases, the court also found that the Home Office had breached the claimants' right to privacy on the basis that it continued to impose GPS tracking even though it was no longer 'necessary in a democratic society'."

Today's judgment follows an earlier unreported decision by the Upper Tribunal (Immigration and Asylum Chamber) in March that found the Home Office's electronic monitoring of a man as a condition of immigration bail had been unlawful.

Wilson Solicitors, who acted for the appellant in the case, said it was first court case to consider the lawfulness of the Home Office's policy of GPS tagging migrants. The appellant challenged the decision to GPS tag him on the basis that it was an unjustified intrusion into his privacy, under Article 8 of the ECHR.

Doughty Street Chambers noted: "The Tribunal held that the imposition of the GPS tag had been an unlawful interference with the Applicant's Article 8 rights as the Home Secretary's failure to comply with his published policy to conduct reviews was not 'in accordance with the law' under Article 8. The Tribunal held that the requirement to conduct regular reviews were an 'integral part of the legal framework' given that the statutory duty to impose an electronic monitoring condition as a condition of bail was subject to the legislative exceptions that electronic monitoring must not continue if its continuation would be either impractical or incompatible with a bailed individual's human rights. The Tribunal emphasised that '[n]either of those considerations are static, and the existence of those exceptions is undoubtedly an important feature which underpins the need for the policy'."

As we reported on EIN at the start of March, the Information Commissioner's Office (ICO) issued an enforcement notice and formal warning against the Home Office after finding its GPS tagging of migrants breached data protection laws.