Two court judgments, one regulatory decision - Bricks fall around UK's GPS tagging of migrants

Then on 12 March 2024 the Upper Tribunal (Immigration and Asylum Chamber) ruled in the case of Mark Nelson, a car mechanic and father of five, that his GPS tagging had been unlawful for over a year as the Home Office failed to conduct lawful or timely reviews of Mark's tagging. This was a breach of his right to privacy under Article 8 of the European Convention on Human Rights (ECHR) and a public law error. It was also unlawful for the nearly 6 months of time during which the Home Office knew that the tag wasn't working. But the Court also found that Mark's tagging at the time of the hearing was proportionate (for reviews had been timely conducted and the tag was properly working then), and hence Mark continues to be tagged - he intends to appeal this part of the decision to the Court of Appeal. PI provided evidence in support of Mark's case, on the technical functioning of the GPS tags and resulting privacy intrusion - you can read our witness statement on our case page. This evidence will be of further relevance should Mark obtain permission to appeal, as it highlights the considerable volume and sensitivity of data collected by the tags - which the Upper Tribunal, in our view, insufficiently engaged with.

And now on 15 May 2024 a third ruling was handed down in ADL & Ors v SSHD [2024] EWHC 994 (Admin), dealing a third serious blow to the policy. The case was brought by four people without British citizenship (referred to as ADL, Fabio Dos Reis, BNE and PER) who had GPS tagging conditions imposed on them upon release from immigration detention at various points in 2022. One is a 26-year old Portuguese national (Fabio Dos Reis), one is a 36-year old Jamaican national with learning difficulties and a recognised survivor of modern slavery (BNE), one is a 25-year old Sudanese national who was subjected to detention and torture in Khartoum and a recognised survivor of trafficking (ADL), and one is a 59-year old Nigerian national who was subjected to female genital mutilation as a child, now has four children including two British citizens, and various serious health problems. PI also provided evidence in support of their case, showing how the functioning and data collection features of the tags were exacerbating the privacy intrusion.

The ADL & Ors judgment - A vindication for the Claimants, a further exposition of immigration authorities' disregard for migrants' rights

This latest judgment is a great win and vindication for the individual Claimants and their rights, as the Court found that the Home Office had acted unlawfully in a number of ways. It's also a flagrant exposition of the Home Office's disregard for legality and for migrants' human rights, as the Court found multiple breaches throughout the 3-part assessment of human rights law. This assessment requires that any interference with someone's rights (here, 24/7 GPS surveillance was a straightforward interference with the Claimants' right to privacy, protected by Article 8 of the European Convention on Human Rights) is (1) in accordance with the law, (2) necessary in a democratic society in pursuance of a legitimate aim, and (3) proportionate to that legitimate aim.

Legality

An interference with someone's rights is "in accordance with the law" if it is (1) lawful under national law (i.e. there is a law enacted by the legislature that authorises the government to do what it's doing) and (2) that national law is clear, foreseeable, and adequately accessible (taking into account all the policies and procedures that implement the law).
In ADL & Ors, in the case of a number of the Claimants the Home Office was found to have breached procedural fairness as it failed to show proper consideration of the real need to impose GPS tagging on the Claimants, which must be balanced with the impact it may have on their rights and freedoms:

• In the case of ADL (who was tagged under the Expansion Pilot), tagging was unlawful from the get-go because he had made representations against the imposition of tagging (in accordance with the Home Office's Immigration Bail policy), but the Home Office failed to respond to those and explain why it was justified to tag him
• In the cases of both ADL and PER, the Home Office failed to demonstrate adequate consideration as to whether the imposition of GPS tagging would be impractical or contrary to their rights under the European Convention of Human Rights ("Convention rights")

These failures meant that ADL's and PER's tagging were not "in accordance with the law", and hence in breach of their Article 8 right to privacy.
Further procedural breaches were found in relation to the Home Office's duty to conduct quarterly reviews of the Claimants' GPS tagging condition - which are required to ensure that tagging them continues to be lawful and without a disproportionate impact on them, their health, rights and freedoms. The same breach was identified in the case of Mark Nelson discussed above. Several of the Claimants were left in the dark as to whether these quarterly reviews were being completed - and disclosures in the case revealed that such reviews were either not taking place at all, or at best were being made months after they were due. The Home Office claimed this was due to operational issues such as staff shortages, but the Court found that did not constitute a sufficient reason for failing to comply with its own policy. The requirement to comply with a policy is a strict one and absent good reasons for failing to do so, the failures to carry out reviews would constitute a public law error.
This is a striking case of a public authority's failure to comply with its own duties, which is of serious concern when imposing extremely intrusive surveillance on vulnerable individuals. Failing to comply with duties and policies opens the door to arbitrary decision-making, which cannot be tolerated in a context of serious interference with people's rights and freedoms.

Necessity and Proportionality

Determining the necessity and proportionality of a lawful interference with human rights requires addressing four questions, as set out in the case of Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700:

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
(2) whether the measure is rationally connected to the objective;
(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and
(4) 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 to its achievement, the former outweighs the latter.

All parties and the Court in this case accepted that (1) and (2) were satisfied, as "the objectives of preventing absconding and preventing offending were weighty ones which justified limiting a fundamental right" and "EM conditions were rationally connected to those objectives." (§244)
In the case of BNE, he had provided evidence that GPS tagging him was disproportionate, in the form of a doctor's opinion that it was highly likely that further deterioration of his mental health would result from being subject to constant surveillance. But the Home Office took 62 days to conclude that his GPS tag should be removed - the Court found this to be too long and therefore his tagging was unlawful for more than a month.
In the case of ADL, a doctor's report was also produced, showing that although some poor health symptoms had reduced since ADL's release from immigration detention, some had been exacerbated by GPS tagging and that overall his mental health condition had deteriorated as a result. But the Home Office only focused its considerations on the acknowledgment that some symptoms had improved, ignoring the rest of the opinion. This made the GPS tagging of ADL unlawful from the date on which the Home Office responded to his representations, failing to properly consider and take into account the impact of GPS tagging was having on ADL.
Overall these failures meant that the Home Office violated the Claimants' right to privacy - the significant intrusion of GPS tagging into their private lives was not properly justified and the few safeguards that existed against abuses were not complied with. PI had provided evidence in this case on the technical functioning of the GPS tags and resulting privacy intrusion, assisting the Court with the complex technical details of this case around data collection, less intrusive alternatives to 24/7 surveillance, and the ICO's investigation of our complaint. You can read our witness statements on our case page.

What's next?

As explained above, despite winning on many points, Mark Nelson remains GPS tagged. So does PER (albeit she was transferred to a non-fitted device - which we and others don't think is really less intrusive than an ankle tag). The other Claimants had their tags removed prior to or during the proceedings. All of them, however, now have an authoritative court ruling that their tagging condition was at some point unlawful because the Home Office failed in its various duties and disregarded their rights.
While these various decisions have not yet put an end to the Home Office policy, and thousands of migrants continue to be tagged, they constitute mounting evidence that the 24/7 surveillance of migrants released from immigration detention cannot be done in a way that complies with public law and human rights. It is extremely intrusive, damaging for people's physical and mental health, and in all cases that have now gone through the courts has been found unnecessary and/or disproportionate in various ways. Thanks to the tenacity of all claimants and their legal teams, many others who are tagged may now have better chances of success in their claims for removal of their tags. On the ICO front, we will be checking the Home Office's work in complying with the Enforcement Notice and Warning, and ensure that all data protection failures have been remedied - and if they haven't, that this is cause for an order to abandon the policy as a whole.
We also hope that a point will come when the Home Office acknowledges the completely unnecessary inhumanity that it is imposing on people, and redirect the considerable time and resources spent on GPS tagging towards safe, humane and legal routes to migration.