Upper Tribunal gives judgment in first challenge to Home Office policy of GPS tagging migrants

The President and Vice-President of the Upper Tribunal (Immigration and Asylum Chamber) handed down their decision in the first challenge to the Home Secretary’s policy of imposing an electronic monitoring condition by way of GPS tags on non-UK nationals facing deportation.

The Applicant, Mark Nelson, challenged the Home Secretary’s decision to require him to wear a GPS tag as a condition of his immigration bail on the basis that it was an unlawful interference with his Article 8 rights under the European Convention on Human Rights. 

At the date of the hearing, the Applicant had been wearing his GPS tag for 18 months and had never been held to be in breach of his immigration bail conditions. On the first day of trial, the Home Secretary accepted that the Applicant’s GPS tag had not been sending any GPS signal for about six months – an issue which the Home Secretary had previously denied. The Home Secretary also conceded that there had been a failure to conduct lawful reviews of the proportionality of the decision to maintain the GPS tag until July 2023.

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” (§64).

Moreover, the Tribunal held that the 197-day period during which the Applicant’s tag was not sending GPS signal was a disproportionate interference with his Article 8 rights. During this time, requiring the Applicant to wear this tag was “essentially pointless” as the Home Secretary knew it was not working and that imposing it could not fulfil the “legitimate aims” of the legislation (§69). 

Notwithstanding its previous findings, the Tribunal held that the ongoing decision to require the Applicant to wear a GPS tag as a condition of immigration bail was proportionate owing to various factors which were all “finely balanced” (§77). 

The judgment is available here.

Mark Nelson is represented by Donnchadh Greene led by Sarah Hannett KC of Matrix Chambers and instructed by Katie Schwarzmann of Wilson Solicitors. Evidence relating to the functionality of GPS tags was provided by Jonah Mendelsohn and Lucie Audibert of Privacy International. Further information can be found in Wilson’s press release available here.