On 11 March 2024, the President and Vice-President of the Higher Tribunal (Immigration and Asylum Chamber) handed down their determination in R (Mark Nelson) v Secretary of State for the House Division (JR-2023-001472), the primary problem to the House Secretary’s coverage of requiring folks on immigration bail to be monitored 24/7 by GPS units. You’ll be able to learn the complete judgment right here.
The applicant, Mark Nelson – a father of 5, automotive mechanic and UK resident of 24 years – argued the imposition of a GPS tag was an illegal interference together with his article 8 rights beneath the European Conference on Human Rights. Mr Nelson additionally argued that requiring him to put on a damaged GPS tag for a interval of round six months was exterior the House Secretary’s statutory powers and that to pressure him to take action was an train of arbitrary and undemocratic energy.
This text will summarise the important thing findings of this judgment. It is going to additionally finish with some sensible steps practitioners can take if conducting comparable judicial evaluate challenges.
Background
Mr Nelson is topic to deportation proceedings. In Might 2022, he was launched from detention and fitted with a GPS tag as a situation of immigration bail pursuant to the House Secretary’s obligation beneath paragraph 2, Schedule 10, Immigration Act 2016.
By means of background, GPS tags gather huge quantities of knowledge together with delicate and private information and use this information for spurious and non-transparent functions. Wearers should additionally preserve the tag sufficiently charged always (which takes a number of hours of charging per day) in any other case they might be held in breach of their bail situations. This could have severe penalties corresponding to being detained.
Proof was supplied to the courtroom that being topic to 24/7 surveillance and the stress of needing to maintain the tag charged had considerably impacted Mr Nelson’s psychological well being and on a regular basis life. It curtailed Mr Nelson’s willingness to be seen in public for concern of stigmatisation, discrimination and ostracisation. It additionally triggered the onset of a number of psychological well being situations he had not skilled beforehand.
On the date of the listening to, Mr Nelson had been carrying his GPS tag for 18 months, with the tag having been damaged for six of these months. Regardless of notifying the House Secretary that he believed his tag was not be sending GPS sign as early as December 2022, the House Secretary took no actual steps to treatment the problem and denied that the tag was not working.
Through the listening to, Mr Nelson argued that his compliance with immigration enforcement might be managed by much less intrusive means and it was subsequently not proportionate to impose a GPS tag on him. This was argued, amongst different causes, as a result of Mr Nelson had been held to be totally compliant with all his immigration bail situations all through, even through the interval he knew his tag to not be working.
Earlier than transferring onto the choice, it’s value briefly highlighting that, for people who even have Article 8 immigration claims, one of many causes the House Workplace can entry GPS path information in keeping with his Immigration Bail coverage is to evaluate the credibility of such a declare. The lawfulness of this was not finally determined upon on this case for the reason that House Secretary confirmed he had not accessed Mr Nelson’s GPS information for this objective. Nevertheless, the House Secretary did affirm the circumstances he may do that is:
for instance, if the declare was that the person has shaped a relationship with a brand new accomplice and that accomplice has kids, one in every of whom has extreme medical wants. Particular person submits that he/she has an important half to play within the baby’s medical regime and sleeps on the hospital 3 occasions per week with the kid while the accomplice cares for the opposite kids. GPS path information would affirm this with out the necessity to contact the hospital administration workers.
[paragraph 55]
The potential entry and reliance on the GPS path information by the House Secretary in these circumstances is regarding given the stories of systemic inaccuracy of the GPS information itself (mentioned additional under).
Determination
On the primary day of the trial, the House Secretary conceded that Mr Nelson’s GPS tag had been damaged for about six months (regardless of Mr Nelson elevating this concern virtually a yr prior).
The Tribunal held that forcing Mr Nelson to put on the tag through the interval through which it was damaged was a disproportionate interference together with his rights beneath article 8 of the Conference. Requiring Mr Nelson to put on a tag whereas it damaged was ‘basically pointless‘ because the House Secretary knew it was not working since imposing it couldn’t fulfil the ‘official goals’ of the laws [paragraph 65]. The tribunal additionally discovered this to be a public legislation error [paragraph 66].
The House Secretary additional conceded that he had did not conduct lawful opinions on the proportionality of the choice to keep up the GPS tag till July 2023 (i.e. for over yr after Mr Nelson had been first tagged). The Tribunal held these failures to imply the House Secretary’s tagging of Mr Nelson throughout this era was not ‘in accordance with the legislation’ [paragraphs 57-59]. The Tribunal held that the requirement to conduct common opinions had been an ‘integral a part of the authorized framework’ for the reason that House Secretary can solely proceed to tag somebody if it isn’t a breach of their human rights or it’s impractical to take action. Solely by common opinions can this evaluation be maintained lawfully [paragraph 64].
Finally, nonetheless, the tribunal held that the continued determination to require Mr Nelson to put on a GPS tag as a situation of immigration bail on the time of the listening to was proportionate [paragraph 76]. The tribunal famous that it was finely balanced, however “the significance of sustaining a immediate and efficient system of enforcement of immigration management along with the dangers of absconding and the potential proximity of the top of the applicant’s enchantment proceedings all appeal to vital weight within the balancing train” [paragraph 77].
Since that is the primary case assessing the proportionality of this intrusive expertise, given the big variety of folks this concern impacts and given the continued affect of the tag on Mr Nelson, Mr Nelson intends to use for permission to enchantment to the Courtroom of Enchantment on this level.
Concluding remarks
Whereas Mr Nelson continues to be required to put on the tag, this judgment has vital penalties for the House Secretary’s coverage of GPS tagging migrants. Previous to this case, the House Secretary was operating this extremely intrusive scheme with none judicial oversight. It’s because the House Secretary was settling nearly all of these circumstances by way of out-of-court settlements earlier than any listening to would happen. You’ll be able to learn extra in regards to the background of those different authorized challenges right here.
There’s proof that the House Secretary has been failing to conduct lawful opinions in lots of of different circumstances, and till this determination, this has been with out consequence. Likewise, there may be vital proof that Mr Nelson’s damaged tag is just not an remoted incident. There are stories of systemic failures with the GPS tagging expertise on a scheme-wide foundation. This implies there are seemingly lots of, if not hundreds, of people who find themselves at the moment being tagged in breach of their article 8 rights and for no lawful cause.
These findings observe simply two weeks after a choice by the Info Commissioner’s Workplace (the ‘ICO’ – the UK’s information safety regulator) on the House Workplace’s use of individuals’s information beneath its pilot GPS tagging scheme. The ICO issued a formal warning that ‘any future processing by the House Workplace on the identical foundation shall be in breach of knowledge safety legislation and can appeal to enforcement motion.’
The affect of those selections collectively is that the House Workplace will not be capable of impose this intrusive type of surveillance on folks with out regard for whether or not the expertise is working of whether or not it’s – and continues to – completely needed always.
Additional, though raised by Mr Nelson, the Tribunal didn’t make a proper determination on the lawfulness of any potential use of automated decision-making that will have been utilized in selections to keep up Mr Nelson’s tag. Nor did they resolve on the proof supplied by Mr Nelson and Privateness Worldwide that the tags don’t, or are usually not able to, precisely recording people’ locational information. Circumstances that concentrate on these points will show to be determinative within the coming years because the House Workplace continues to experiment with new types of expertise on migrant populations.
Sensible recommendation
There are some key sensible steps practitioners conducting comparable judicial opinions could also be suggested to take:
- Request disclosure of the GPS tag’s path information. This may reveal if there are key durations the place the tag is just not amassing information. You’ll be able to then additionally cross-check among the locational information in opposition to your consumer’s reminiscence of their actions. If there are vital discrepancies, take into account making ready a witness assertion highlighting these inaccuracies with the information.
- Request disclosure of whether or not any ‘automated enterprise guidelines’ have been used within the preparation of any opinions of the digital monitoring situation. The lawfulness of this expertise has not but been assessed and raises severe privateness and information safety considerations.
- In case your consumer additionally has an article 8 immigration declare, be certain that your consumer additionally takes a private document of their actions which may be related to an article 8 declare. That is in order that any claims made by the House Secretary primarily based on the (probably inaccurate) GPS path information will be verified or rebuffed.
- If – as within the instance supplied by the House Secretary above – the tag is amassing information that’s delicate or associated to kids, take into account elevating a criticism with the Info Commissioner’s Workplace.
- Make sure the House Secretary has carried out a evaluate of the digital monitoring situation each three months or on the receipt of representations. In any other case, the continued carrying of the tag could also be illegal.
Mr Nelson is represented by Katie Schwarzmann of Wilson Solicitors LLP, Donnchadh Greene of Doughty Road Chambers and Sarah Hannett KC of Matrix Chambers. Proof referring to the performance of GPS tags was supplied by Privateness Worldwide.
Wilson Solicitors LLP represents a variety of people difficult the House Workplace’s imposition of GPS tags on them.
You’ll be able to take heed to a podcast on this case the place Mr Nelson and his solicitor, Katie Schwarzmann, had been interviewed by Privateness Worldwide right here.
This text was co-written with Donnchadh Greene of Doughty Road Chambers.
