GPS tag monitoring of migrants: an update on our legal challenge

Wilson Solicitors LLP Public Law & Human Rights and Immigration teams have acted in a number of legal challenges to the Home Office’s controversial policy of monitoring migrants on immigration bail with GPS tagging devices. One of the cases (RKM) had been listed for a final hearing before the President of the Upper Tribunal Immigration and Asylum Chamber, Mr Justice Dove, on 23 March 2023, permission to apply for judicial review having been granted in January 2023. The Home Secretary has now agreed to settle the claim on the basis of removing the tag and paying our client’s legal costs.

This is the fifth case dealt with by the firm where the Home Secretary has settled after permission to apply for judicial review has been granted. Other cases have settled at other stages of the judicial review process. Whilst the settlements represent a vindication for our individual clients, it means that the legality of the GPS tagging policy has not yet been ruled upon by the courts. This means the Home Secretary is able to continue to operate her policy. And because the core ground of challenge is based on the Human Rights Act 1998 (specifically, the right to private and family life under Article 8 of the European Convention on Human Rights (ECHR)) any challenge has to be brought by an individual affected, and cannot be brought by a public interest group.

GPS tagging requires a person on immigration bail to wear an ankle device. Our clients report that wearing the tag can cause significant pain and discomfort. They also report that they find having to wear the device humiliating and degrading. They are required to keep the devices charged and our clients have reported problems in this regard – e.g. having to charge the devices repeatedly and for lengthy periods, and feeling anxious about venturing away from their accommodation in case the tag runs out and they are treated by the Home Office to be in breach of their bail conditions. Many of our clients have histories of trauma and mental ill health and we have provided medical evidence to the Home Office that wearing the devices causes distress and in some cases damage to their mental health.

The Home Secretary started to fit GPS devices in 2021. The devices allow the authorities to track where the person is at any time of the day and night. The Home Office can access the data for various reasons; controversially, data can be accessed for the purposes of assessing an immigration application based on a person’s family life. Our clients have argued that the relevant legislation does not allow the Home Office to do this.

Allowing the Home Office to access location data is concerning for a number of reasons. For example, it has been widely reported that the GPS location data is inaccurate; this could have serious adverse consequences for an individual’s immigration application. We also understand the government is planning to roll out non-fitted GPS devices, which will include fingerprint scanners in the first instance, and may extend to smart watches using facial recognition. These types of devices may also present interferences with individuals’ rights to private and family life under the ECHR.

We are acting in other ongoing judicial reviews as well as claims for damages for people we consider have been subject to unlawful GPS tagging.

The cases that have settled following permission to apply to judicial review having been granted are listed below. The most recent case (RKM) was dealt with by Gabriel Tan with assistance from public law partners Jed Pennington and Nina-Rathbone-Pullen; counsel instructed is Donnchadh Greene, with Sarah Hannett KC also instructed for the 23 March 2023 hearing. The firm is represented at a practitioner and NGO forum for discussing this work by public law solicitor Katie Schwarzmann.

R (MDS) v SSHD, CO/2247/2021 (permission granted 6 October 2021; Daniel Merriman)

R (AXR) v SSHD, CO/1357/2022 (permission granted 20 June 2022; team led by Nina Rathbone-Pullen)

R (TAI) v SSHD, CO/371/2022 (permission granted 13 September 2022; Jed Pennington and Maeve Fennelly)

R (KXR) v SSHD, UT ref: JR-2022-LON-000977 (permission granted 28 June 2022; Jed Pennington and Sam Mason)

R (RKM) v SSHD, UT ref: JR-2022-MAN-000099 (Gabriel Tan, Jed Pennington and Nina Rathbone-Pullen)