GPS tagging as an immigration bail condition – what’s changed and why are we concerned?
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Louise Heath
Description: PLP
Two recent changes to the tagging of people subject to immigration bail raise serious concerns about well-being and the use of sensitive data. First, electronic tagging is now a mandatory condition for immigration bail in England and Wales. Second, in most cases, the Home Office now uses Global Positioning System (GPS) tags that monitor the wearer’s every move and send this sensitive data to a privately contracted supplier.
Mandatory tagging
Since 31 August 2021, there has been a duty on the home secretary to electronically monitor those on immigration bail living in England and Wales who are subject to deportation proceedings or a deportation order.1Immigration Act 2016 Sch 10 Part 1 para 2(2) and (3), and Immigration bail, version 11, Home Office, 31 January 2022. Those already on bail have had their bail conditions reviewed and electronic monitoring devices issued since 31 January 2022.
There are only two specific exemptions to the new electronic monitoring duty: people who are under 18; and mentally unwell people released on immigration bail following mental health detention. There are two further broad exemptions: if tagging would be impractical; or if tagging would breach the person’s rights under the European Convention on Human Rights (ECHR).2See Immigration bail at note 1, page 26. The First-tier Tribunal (Immigration and Asylum Chamber) has no jurisdiction as to whether these exemptions apply in specific cases. Only decision-makers at assistant director level and above can apply these exemptions. This is in stark contrast to GPS tagging in the criminal context, which is subject to many more safeguards3Code of practice: electronic monitoring data, HM Prison & Probation Service, October 2020. See also: www.biduk.org/articles/805-bid-s-briefing-on-electronic-monitoring. and can only be used in very specific, highly regulated circumstances.
Impact of tagging
Monish Bhatia’s study4Monish Bhatia, ‘Racial surveillance and the mental health impacts of electronic monitoring on migrants’, Race & Class, vol 62(3), 2021, pages 18–36. of the impact of tagging on people seeking asylum who are on immigration bail paints a worrying picture of the mental ill health and psychological harm it can cause. Although a decision to tag is said to be to allow the Home Office to maintain contact with individuals and reduce the risk of non-compliance,5See Immigration bail, note 1, page 47. Bhatia shows that people experience tagging as a continuation of punishment and confinement. Tagging as a bail condition is indefinite, with some of the individuals in Bhatia’s study being tagged for over a year. Among other concerns, those tagged emphasised the ‘suffocating feeling of being constantly watched’.6‘Racial surveillance and the mental health impacts of electronic monitoring on migrants’, page 30.
Transitioning to GPS tags
The Home Office now uses GPS tags rather than Radio Frequency Tags (RFT) except in ‘some very limited cases’.7See Immigration bail, note 1, page 23. This is concerning because of the impact that 24/7 monitoring has on individuals’ everyday life and psychological well-being. GPS tags continuously collect large amounts of sensitive data about their wearer, which is held by a privately contracted supplier.8See Privacy International’s recommendations on this: Safeguards for public-private surveillance partnerships, December 2021.
Bail for Immigration Detainees has been bringing attention to the drawbacks of GPS tagging for some time and in 2021 wrote to the home secretary outlining its concerns. As it highlights, the Home Office has not demonstrated the rationale behind switching to GPS tags or how it is a necessary or proportionate measure for the management of immigration bail.
Data protection and privacy
The purposes for which the Home Office can access trail data (which shows the wearer’s location history while wearing the GPS tag) are troublingly wide-ranging. For example, authorised Home Office staff dealing with ECHR article 8 cases ‘may request access to the full trail data to support or rebut the claims’. In certain circumstances, the Ministry of Justice, Immigration Enforcement and the police can also access the data.
What next?
The Independent Chief Inspector of Borders and Immigration is currently completing an inspection of GPS tagging of foreign national offenders. PLP is working with Bail for Immigration Detainees to collect evidence on the human impact of the use of GPS tagging. Immigration detainees are often unsure, prospectively, of the impact that GPS tagging will have on their everyday life; many have not had a GPS tag fitted before. We’re hoping to fill this evidence gap, to assist in the making of prospective representations to avoid tagging on release on immigration bail, and to highlight the negative impacts of GPS tagging to help shape a fairer, more humane system for those subject to immigration bail.
If you want to speak to PLP about these issues, or need advice or assistance with a legal challenge to the use of GPS tagging, please contact: enquiries@publiclawproject.org.uk.
 
1     Immigration Act 2016 Sch 10 Part 1 para 2(2) and (3), and Immigration bail, version 11, Home Office, 31 January 2022. »
2     See Immigration bail at note 1, page 26. The First-tier Tribunal (Immigration and Asylum Chamber) has no jurisdiction as to whether these exemptions apply in specific cases.  »
4     Monish Bhatia, ‘Racial surveillance and the mental health impacts of electronic monitoring on migrants’, Race & Class, vol 62(3), 2021, pages 18–36.  »
5     See Immigration bail, note 1, page 47.  »
7     See Immigration bail, note 1, page 23. »
8     See Privacy International’s recommendations on this: Safeguards for public-private surveillance partnerships, December 2021. »

About the author(s)

Description: Jo Hynes - author
Jo Hynes is a research fellow at PLP and a PhD student at the University of Exeter.
Description: Alice Stevens - author
Alice Stevens is a solicitor in PLP’s casework team.