[2024] UKUT 00141 (IAC)

The questions which arise in relation to the applicant’s ground 1 relate both to the question of whether or not the imposition of a GPS tag is unlawful and in breach of Article 8 in principle, as well as the question of whether or not it is unlawful and in breach of Article 8 in the particular circumstances of the applicant. It appears to us that ground 4 is a distinct development of that ground, arising understandably by way of amendment during the course of the proceedings, to reflect one of the particular circumstances of this case, namely that it is agreed that for a significant period of time the GPS tag was inoperative and was not sending data to the respondent’s contractor. We propose therefore to commence our analysis with the broader issues in relation to whether or not the imposition of a GPS tag is in principle unlawful and in breach of Article 8 prior to moving to consider the particular circumstances of this applicant, including in particular the implications of his being required to wear an inoperative tag and the question of whether the continuation of the requirement to wear the GPS tag is lawful.

The applicant submits that the aims and objects of paragraphs 2(2) and 4 of Schedule 10 to the 2016 Act are clearly to enable the respondent to maintain appropriate levels of contact with the person granted immigration bail, and reduce their risk of absconding or noncompliance, along with minimising the potential delay in becoming aware of any noncompliance, and ultimately facilitating the person on immigration bail being returned. Those objects can be identified both from reading the legislation itself and also from an understanding of the respondent’s bail policy. The applicant’s submission is that if the GPS tag is not functioning, then the purpose of the legislation cannot be met and it is thus unlawful in the Padfield sense for the person to be required to wear the tag. In response to the question as to whether or not immediately at the point of the tag ceasing to function its imposition is unlawful the applicant responds that the answer to this question is one of fact and degree. There will come a time where it must be concluded that the requirement to wear the malfunctioning GPS tag is not capable of promoting the policy of the 2016 Act since it is not fulfilling any of the objectives that have been identified above.

In response to these submissions the starting point of the respondent is to contend that it is not possible to derive an overriding policy of the kind contended for by the applicant from this legislation. The respondent places reliance upon the decision of the Supreme Court in the case of Patel & others v SSHD [2013] UKSC 72. That was a case in which it was submitted that as a result of the policy of the Nationality Immigration Asylum Act 2002, which established a new statutory code relating to appeals including the provision of “one stop notices”, the defendant was under a duty to issue removal directions whenever deciding to refuse leave to remain. At paragraphs 28 and 29 of Lord Carnwath’s judgment (with which the other judges agreed) he concluded that this argument depended upon a misapplication of the Padfield principle. Firstly it did not thwart the policy of the act to proceed on the basis that unlawful overstayers should be allowed to leave of their own volition. Secondly, the language of the statute was clearly one of discretion, creating a power to direct refusal. The appellant’s arguments rewrote the statute so as to replace the discretion with a duty to direct removal and as such the submissions were illegitimate. On this basis it is contended by the respondent that in the present case it is simply not possible to derive an overriding purpose of the kind suggested by the applicant from the language of the statute so as to apply the Padfield principle to circumstances in which the GPS tag is not functioning.

Furthermore, the respondent submits that it is incorrect to attempt to determine the issue of whether or not the respondent has lawful authority to require the wearing of the GPS tag as a matter of fact and degree. The question has to be determined on the basis of an examination of the language of the statutory power so as to see whether or not, in principle, the wearing of the tag can be legally justified. In particular, paragraph 4 of Schedule 10 of the 2016 Act provides that the respondent may require a person under an electronic monitoring condition “to co-operate with such arrangements as the Secretary of State may specify for detecting and recording by any electronic means” their location during specified periods of time whilst those arrangements are in place. The respondent submits, therefore, that provided a device is fitted with the intention to detect and record that data and it is designed to do so then the respondent has lawful authority to require the wearing of it as part of an electronic monitoring condition. The equipment would meet the requirements of an electronic monitoring condition and thus be lawful. The references within paragraph 4(3) to the “arrangements” requiring the person to wear or make specific use of a device is necessarily a reference to the class of device which is to be used and not the specific device in question. For all of these reasons even if a specified device is fitted with the intention of gathering data but it immediately malfunctions, or malfunctions during the course of its use, requiring it to be worn is nonetheless within the scope of what is empowered by the 2016 Act.

We are unconvinced that the arguments advanced by the respondent based upon the case of Patel are of any great assistance in the present case. That case arose in a materially different context to the present case and sought to use the Padfield principle to establish a duty based on what was submitted to be the policy of legislation in respect of statutory material clearly written to give rise to a discretion. The observations of Lord Carnwath do not assist in relation to the question of determining what the overall policy of legislation is in order to establish whether or not a decision would thwart the policy or purpose of that act. The purpose of the 2016 Act is to be derived from an analysis of its legislative provisions. In our view the respondent is on far firmer ground in submitting that the 2016 Act authorises the imposition of an electronic monitoring condition which can include arrangements to require the person bailed to wear or make specified use of a device which can detect and record that person’s location during specified times whilst the arrangement is in place. There is no dispute that what was fitted to the applicant in the present case was fitted with the intention and was in principle capable of detecting and recording the information required. Indeed, even during the period when it was mainly malfunctioning there were times when it achieved this. In that what was fitted to the applicant was in principle designed, intended and capable of detecting and recording the information required by the electronic monitoring condition we are satisfied that there was lawful authority to fit it.

The applicant submits, as set out above, that the question of whether or not the fitting of the GPS tag was lawfully authorised was a question of fact and degree depending upon whether it was working. We disagree. Bearing in mind that we are at this stage considering whether or not in principle it is lawful to fit a GPS tag we are unable to accept, given its mechanical nature and its dependency upon a signal for it to operate, that whether it is in fact able to detect and record the necessary data at any specific moment in time dictates whether the wearing of it is lawful. The fact would remain that the GPS tag would in principle be capable of undertaking such detecting and recording so as to have been fitted in accordance with the lawful authority granted by the provisions of the 2016 Act. The existence of that lawful authority does not come and go depending on the operation of the device. Furthermore, the fitting of a device in the circumstances which we have described is intended or calculated to further the purpose of the legislation and its temporary malfunctioning does not change that conclusion. There is, therefore, no breach of the Padfield principle. Its failure to be operational may have other consequences which are dealt with below in the context of Article 8.

For the reasons which we have set out above, provided the GPS tag to be worn by the bailed person is in principle designed and capable to detect and record the data specified in the statutory regime, and fitted with the intention of it doing so, then its imposition as part of an electronic monitoring condition is not rendered unlawful by issues such as the device temporarily malfunctioning or, for instance, the relevant signal dropping out for whatever reason.

The applicant makes further submissions that the imposition of a GPS tag is, in principle, a breach of Article 8. As has been set out above, it is accepted by the respondent that the requirement to wear a GPS tag is an interference with the applicant’s article 8 rights. The applicant submits further that the use of GPS tagging is not in accordance with the law. The applicant’s submissions are that, applying the principles set out above from Catt and Bridges, and bearing in mind the intrusive nature of the garnering of granular data about the applicant’s whereabouts and movements, the imposition of a GPS tag pursuant to an electronic monitoring condition is neither accessible or foreseeable. There is no guidance which is specific in relation to the duration of the requirement to be electronically monitored: the policy in that respect is crude and open ended. The applicant further expresses concern in relation to the circumstances in which the detailed trail data may be accessed and why access to that data might be appropriate.

In response to these submissions the respondent submits that, in principle, the requirement to wear a GPS tag is “in accordance with the law” as authorised by domestic law in the form of the 2016 Act. The law is accessible in that it is set out in detail in the 2016 Act, and in relation to time limits those provisions specify that the requirement to wear the GPS tag will cease either, when the person departs the UK, or is granted indefinite leave to remain, or, in accordance with the specific provisions of the statute, it is impractical or contrary to the person’s human rights for the condition to be maintained.

As to the usage of the data gathered by the GPS tag, in addition to the policy, the respondent relies upon the witness evidence of Mr Murray which provides as follows:

“9.

The Home Office staff can request the trail data from EMS for HO purposes if at least one of the following criteria are met :

• Breach of immigration bail Conditions including absconding

• Allegations of EM Breaches or Intelligence of immigration bail Condition Breaches Received.

• Article 8 Representations / Further Submissions

• External Agency Requests.

• Subject Access Requests.

10.

All requests for GPS Trail Data are strictly monitored by the Home Office Service Delivery Team embedded within the Ministry of Justice and any requests that do not meet this specific criterion are rejected. I can report that since his induction onto GPS electronic monitoring, Mr Nelson’s GPS Trail data has not been accessed at all for Article 8 purposes. It has been accessed once due to a request from Mr Nelsons legal representatives. Regarding accessing trail data for Article 8 submission purposes. In the event of the receipt of Article 8 representations or further submissions from an individual, authorised Home Office staff dealing with those submissions, may request access to the full trail data to support or rebut the claims. This will hopefully negate the need to request ‘substantiating’ evidence from third parties which can cause unnecessary delays in considering the claims. For example, if the claim was that the individual has formed a relationship with a new partner and that partner has children, one of whom has severe medical needs. Individual submits that he/she has a crucial part to play in the child’s medical regime and sleeps at the hospital 3 times per week with the child whilst the partner cares for the other children. GPS trail data would confirm this without the need to contact the hospital administration staff.”

It is important to bear in mind that at this stage of our decision we are addressing the question of whether in principle it is a breach of Article 8 to require a person to wear a GPS tag as part of an electronic monitoring condition relating to their immigration bail. We consider that the concession which was made by the respondent that the requirement to wear a GPS tag is an interference with a person’s article 8 right was properly made. As the respondent accepted the requirement to wear such a device involves not merely its physical fitting to the person concerned, but also the harvesting of locational data in relation to their movements and whereabouts, and the understandable concern of that person that they are being supervised or watched. The concession is in line with the approach taken in the case of Uzun.

The next question which arises when examining the position in principle is whether the imposition of such a GPS tag is in accordance with the law, that is to say whether the standards of accessibility and foreseeability provided in the authorities are met by the material which is before us. We have reached the conclusion that, in principle, the requirements are met. Firstly, so far as accessibility is concerned it is important to appreciate that in addition to the legislative framework which clearly sets out the powers of the respondent in connection with electronic monitoring conditions, there is also, supplementing these provisions, the detailed policy on immigration bail which the respondent publishes to inform the way in which the powers will be operated. In terms of accessibility and foreseeability the points made by the respondent as to when the legislation provides for electronic monitoring to cease are well made.

The policy also provides important safeguards so as to ensure, in particular through the mandatory regular review process, that a continuing requirement to wear a GPS tag is consistent with the requirements of practicability and the proper protection of the bailed person’s human rights. That regular review process also ensures that the factors relevant to whether or not the continued wearing of the GPS tag is purposeful are addressed. Thus, in our judgment the policy plays an important role in ensuring that the operation of an electronic monitoring condition is carried out in accordance with the law bearing in mind, of course, that a policy of this kind cannot foresee or plan for every conceivable eventuality.

Thus, in principle we are satisfied that the inclusion of a requirement to wear a GPS tag as part of an electronic monitoring condition is in accordance with the law and consistent with the purposes of having such a condition in the first place. The final question in relation to article 8 is, of course, one which is highly fact sensitive and dependant upon the particular circumstances of the individual whose case is being considered.

Having considered the questions arising in relation to GPS tagging under an electronic monitoring condition in principle, it is now necessary to consider the specific features of the applicant’s case beyond those generic issues, in particular in the context of article 8. The specific issues to be considered relating to this applicant’s circumstances are; firstly, the significance of the admitted failure to apply the respondent’s bail immigration policy in respect of regular lawful reviews of the electronic monitoring condition; secondly, the significance of the periods of time when it is accepted that the tag was not operative; thirdly, the question of whether or not as matters stood at the time of the hearing it was lawful for the applicant to be required to wear the GPS tag.

As set out above it is accepted that, firstly, there ought to have been a review of the electronic monitoring condition in the applicant’s case by the 17^th August 2022, but in fact no such review took place until 10^th October 2022. It is now conceded that that review was unlawful for the reasons set out above. A further review was due in accordance with the policy on 10^th January 2023, and in fact no review took place until 21^st April 2023. When a review was undertaken it was affected by the same error of law as contained in the review of 10^th October 2022. The applicant submits that this failure to review is a public law error which means that the imposition of the electronic monitoring condition during this period was not in accordance with the law. This is a submission which was at least in the first instance advanced on the basis of the case of Kambadzi. In further submissions on this topic, as set out above, the applicant drew attention to the authorities which we have already rehearsed as giving rise to the proposition that an error of domestic public law was sufficient to render a decision interfering with article 8 as not “in accordance with the law”.

The respondent submits that the authority of Kambadzi is of no assistance in resolving this issue. Firstly, that was a case which did not address the requirements of article 8 or the “in accordance with the law” criteria. In fact, it was a case concerned with the position at common law in respect of a claim for damages for false imprisonment or trespass to the person. The Supreme Court specifically did not address article 5 and the case was not, therefore, one about human rights.

We consider that there is force in the submissions made by the respondent about the case of Kambadzi. It does appear that that case was not only a case concerned with a common law right to damages and not human rights, but it also arose in a differing statutory context. However, in our view the applicant is on far firmer ground when making the further submissions based on the case of O and Malcolm.

Our analysis of the issues is as follows. Firstly, it is clear that the immigration bail policy, and in particular the requirement for there to be regular reviews, is an integral part of the legal framework governing the imposition and continuation of electronic monitoring. Whilst it is true that under the statutory regime the imposition of electronic monitoring is mandatory, that is to say a duty rather than a discretion as the continuation of detention may have been in Kambadzi, it is nonetheless a duty which has specific statutory exceptions contained within schedule 10 of the 2016 Act. In particular, the legislative regime specifies that the electronic monitoring condition should not continue if its continuation would be either impractical or in breach of the human rights of the bailed person. Neither of those considerations are static, and the existence of those exceptions is undoubtedly an important feature which underpins the need for the policy. As the case of O demonstrates, an apparently mandatory duty can when properly understood be subject to qualifications in its practical operation. Here, the duty to impose the electronic monitoring condition and the wearing of the GPS tag is specifically qualified by the terms of the legislation and its identification of exceptions in relation to practicality and human rights considerations. It is also subject to the respondent applying the policy which has been published for the purpose of undertaking the administering of this regime, unless there is good reason for not applying the policy.

Thus, the process of regular reviews is an integral part of the lawful administration of an electronic monitoring condition and, as has been set out above, a key feature of concluding that in principle the regime fulfils the requirements of accessibility and foreseeability so as to meet the “in accordance with the law” standard. Failure to comply with these integral elements of the legal framework by failing to review the circumstances in which an electronic monitoring condition has been imposed on a regular basis therefore clearly undermines the legality of continuing to impose such a condition. For the reasons given in the case of O, the fact that a later review might conclude that the imposition of the condition had been practicable and in accordance with the applicant’s human rights, does not eliminate or obscure the failure to conduct a review at all, or the failure to conduct a review lawfully. Such a conclusion may, however, be directly relevant to the subsequent question of relief, as it was in O. It may be open to the Respondent to contend after a failure to comply with the policy that even if the policy had been complied with at the appropriate time it would not have led to the conclusion that the GPS tracker was impracticable or a breach of the human rights of the person on bail required to wear it. As in O, the outcome in those circumstances in terms of relief could be nominal damages and appropriate declaratory relief, and no doubt careful consideration would be given to appropriate limitations on costs in those circumstances.

A further route to the same conclusion arises from the well-established proposition that a decision-maker must apply a relevant policy they have established when making a decision to which the policy applies unless there are clear reasons for departing from it. This proposition can be seen at work in the case of Malcolm, and finds expression in high authority in the Supreme Court case of Mandalia v Secretary of State for the Home Department [2015] 1 WLR 4546; [2015] UKSC 59 at paragraphs 29 to 31. In the present case the requirements of the policy were not met either as to the regularity of the reviews or the reviews being conducted lawfully. The respondent has not identified any reason, let alone a good reason, why that policy was not adhered to in the applicant’s case. It follows that this amounts to a public law error on the part of the respondent and one which renders the requirement to wear the GPS tag during the period when reviews should have been but were not carried out, or alternatively were carried out incompetently, not “in accordance with the law”, albeit the same observations in relation to relief set out above remain pertinent. The period which this concerns is the period from the 29^th June 2022 to 17^th July 2023.

The second specific aspect of the applicant’s case which has to be considered is the fact that between 23^rd November 2022 and 11^th May 2023, a period of 197 days, the GPS tag was not functioning so as to collect and transmit data about the applicants whereabouts on all but 11 days. We have set out above our conclusions in relation to whether in principle the fitting of a non-functional tag which was nonetheless designed and intended to collect that data was a breach of the Padfield principle and whether there was no lawful authority to impose it. However, the question arises as to whether, even if the requirement to wear a GPS tag which was not working was authorised by schedule 10 of the 2016 Act, nonetheless the continuation of the wearing of the GPS tag was a breach of article 8. In other words, ignoring the findings that we have made in relation to the failure to apply the respondent’s policy in respect of review during this period, and assuming that the requirement to wear the GPS tag was “in accordance with the law”, was the wearing of the tag proportionate to the aim for which the electronic monitoring condition was imposed?

We emphasise that in making this assessment we are focusing upon the particular circumstances of this applicant. Obviously, if a GPS tag has been fitted with lawful authority, but then for whatever reason it either malfunctions or signal drops out for a few days whilst arrangements are put in place to repair or replace it, then such small interruptions are of limited if any consequence. It is only to be expected, as with any piece of mechanical technology, that the GPS tag will not work perfectly all of the time. There will be episodes from time-to-time when the GPS tag may need repair and this is all part and parcel of the electronic monitoring condition system.

The difficulty for the respondent is that in the applicant’s case the periods of time for which the GPS tag was non-functional were very extensive. It appears that from an early stage the respondent was aware that the GPS tag was not working correctly, and that from around January 2023 the respondent was aware that it was not transmitting data to the tagging contractor. Thereafter it appears that many weeks went by without any meaningful action being taken to correct the problems until the visit on 21^st April 2023 leading to the fitting of a new and effective tag on 11^th May 2023. We are unable to accept that this lengthy period of requiring the applicant to wear a tag which was known not to be functional was proportionate or properly related to the legitimate aims of the legislation. During this lengthy period the conceded interference with the applicant’s article 8 rights was essentially pointless. He was required to wear the GPS tag for many weeks whilst it was serving no useful purpose at all. During this period therefore there was inadequate justification for the interference caused by the electronic monitoring condition, and it is clear that appropriate steps should have been taken far sooner to either repair or replace the tag so that the applicant would have been wearing it for the purpose intended.

The applicant’s claim in this judicial review is brought against the continuing decision to impose an electronic monitoring condition upon him or alternatively, to fail to conclude that he falls within the exceptions contained within Schedule 10 of the 2016 Act and specifically the exception related to his human rights. The final element therefore of this decision addresses the question of whether or not as at the date of the hearing the continued imposition of a GPS tag was lawful. Although there was some question raised in relation to it at the hearing, for the purposes of this assessment we assume that the most recent review which was due around the time of the hearing was undertaken and undertaken lawfully. The question which therefore arises is whether or not in the particular circumstances of this applicant the continued imposition of electronic monitoring and the GPS tag meet the requirements of proportionality. In making that assessment it appears to us to be appropriate to seek to identify the factors weighing in favour and against the electronic monitoring condition and the GPS tag being retained. That enables an appropriate analysis to be undertaken of the proportionality requirement.

Starting with the factors which weigh in favour of the continuation of electronic monitoring of the applicant, it is clear that weight must be attached to the importance of enforcing immigration control and securing the prompt enforcement of immigration decisions when they are reached. Further, weight inevitably attaches in the applicant’s case to the potential risk of further offences including, based upon the applicants’ previous convictions, offences which are racially aggravated. A particularly weighty factor in support of the continued imposition of the electronic monitoring condition by way of the GPS tag is that the applicant is at risk of absconding in the light of the fact that he is close to the end of the litigation process in respect of his human rights appeal. His case has been considered both by FTIAC and the UT, and the only remaining outstanding potential process is appeal to the Court of Appeal, as to which permission to appeal was at the date of the hearing pending. The applicant is therefore close to being at the point of being appeal rights exhausted unless his application for permission to appeal to the Court of Appeal is granted.

The points in favour of the applicant include that he was compliant with the immigration bail which he was granted without an electronic monitoring condition between 19^th August 2019 and 5^th May 2022. He had, therefore, been on bail for three years without being electronically monitored and without there having been any concerns or breaches during that period. Indeed, it is reported in correspondence from the Probation Service that he complied with his licence requirements after release from custody.

A further factor in support of the applicant’s case arises from his personal circumstances and the circumstances of his family. There is evidence before us from the applicant and his partner about the impact that the tag has had upon his mental wellbeing and that of his partner and children. There is, as noted above, medical evidence from Dr Gallapathie which links the imposition of the GPS tag to the applicant’s development of severe depression, generalised anxiety disorder and PTSD. This medical evidence has to be tempered by the fact that the respondent obtained his own psychiatric evidence which provides a somewhat different opinion. It is not possible for us to comprehensively resolve the differences between the psychiatric experts in this case, but we conclude that some weight should be given in the applicant’s favour to the impact on his mental wellbeing and that of his family. At the very least Dr Spotto indicates in his opinion that the deterioration in the applicant’s mental health was caused by the immigration proceedings generally, and that wearing the GPS tag is a major contributory factor in that overall process.

A further factor in support of the applicant is that the risk of him reoffending is identified as being low, a position accepted by the respondent in his most recent review of the electronic monitoring condition. Further, it must be taken in the applicant’s favour that, as set out above, there have been periods when he has been required to wear the tag when it has not been functioning and also its continued use has not been the subject of an appropriate application of the immigration bail policy. During parts of this period when the GPS tag was not working the applicant will have believed he was being monitored. Again, it is a factor which is in the applicant’s favour that the electronic monitoring condition had been in place at the time of the hearing for 18 months which, obviously, is a significant period of time.

In undertaking the analysis of proportionality in this case it is important to emphasise that none of the factors in this case are in and of themselves dispositive of the question. Each of the factors which have been identified and our overall assessment of the circumstances of this case have to be weighed in the balance and an overall conclusion reached.

Weighing up the various relevant factors pertaining to the circumstances of this case in favour and against the continuation of the imposition of the electronic monitoring condition by way of a GPS tag we have concluded on balance that the factors in favour of retention of the electronic monitoring condition and the GPS tag support the continuation of its imposition.

We should emphasise that this decision is very finely balanced, but the importance of maintaining a prompt and effective system of enforcement of immigration control together with the risks of absconding and the potential proximity of the end of the applicant’s appeal proceedings all attract significant weight in the balancing exercise. It has to be recognised that the conclusion which we have reached arises in a dynamic context, in which circumstances can readily change as recognised by the immigration bail policy’s requirement for regular review. Were the Court of Appeal to grant permission to appeal, or were there to be further significant delays in the resolution of the applicant’s case, a different conclusion might be reached in the course of the regular review of the applicant’s case. As a result of the dynamic nature of the assessment which needs to be made, and the potential for circumstances to change so as to re-order the striking of the proportionality balance, there is a particular importance in the imposition of conditions of this kind being regularly reconsidered in accordance with the application of the respondent’s policy.

The final matter to be addressed as it was raised with us at the hearing is the question of the respondent’s compliance with the duty of candour. We have concluded that there is no requirement in this case for further investigation to be undertaken as to whether or not there were breaches of the duty of candour. Ultimately, we are satisfied that all of the relevant information necessary for this matter to be justly disposed of has been brought before the UT.

That said, it is very clear from the history of this litigation that there were periods in which perfectly legitimate questions were not being properly grappled with by the respondent. The efficient conduct of the litigation was not assisted by, for instance, a failure to engage with the need to produce an agreed list of issues for the purposes of the hearing. It is disappointing to note that it was not until the start of the hearing that the respondent properly addressed the question which obviously needed to be engaged with in relation to the accepted factual basis upon which the judicial review was to be premised. We acknowledge that this is perhaps the first case in which issues of this kind in relation to GPS tagging have been raised (certainly no other domestic decision has been drawn to our attention) and it is to be hoped that in any future cases the material necessary to address some of the issues which have been outlined above will be provided promptly.

Having set out our conclusions in relation to the legal issues which were raised with us in the context of this judicial review we shall await the submissions of the parties in respect of the appropriate form of an order to give effect to our decisions.

Following the circulation of our decision in draft to the parties a draft agreed order giving effect to our decision has been and remains the subject of discussion and negotiation. We are grateful to the parties for this and endorse the terms of the order so far as they relate to the declarations to be made. We note there are issues which remain to be resolved in respect of costs. We look forward to receiving a further draft order in due course. It has also emerged that in contrast to the assumption that we made in paragraph 70 there was no further review on the 4^th November 2023 as required by the respondent’s policy. We have been advised by the parties that the applicant was permitted by the respondent to submit representations for the review by 24^th November 2023 and following an extension of time the applicant made representations on 4^th December 2023. The review was subsequently conducted on 21^st December 2023. It follows that in addition to the period identified in paragraph 66 above there was an additional relevant period between 4^th November 2023 and 21^st December 2023. This is reflected in the draft order.