[2024] UKUT 00141 (IAC)

R (on the application of Nelson) v Secretary of State for the Home Department

(bail; requiring GPS tag; lawfulness)

In the matter of a claim for Judicial Review

Heard at Field House

THE IMMIGRATION ACTS

Heard on 10th & 13th November 2023

Promulgated on 11th March 2024

Before

THE HON. MR JUSTICE DOVE, PRESIDENT

MR C M G OCKELTON, VICE PRESIDENT

Between

THE KING

on the application of

MARK NELSON

Appellant

And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Applicant: Sarah Hannett KC and Donnchadh Greene instructed by Wilson Solicitors LLP

For the Respondent: Zane Malik KC instructed by Government Legal Department

J U D G M E N T

1. Under Schedule 10 of the Immigration Act 2016 Act a person detained pending deportation can be granted bail only subject to an electronic monitoring condition”, - the wearing of a GPS Tag. Paragraph 2(5) of Schedule 10 of the 2016 Act provides for two exceptions to this mandatory requirement; where the imposition of such a condition on the person in question would be “impractical”, or, alternatively, “contrary to the persons convention rights”; whether that is so requires answering the 5 questions identified in Razgar. The requirement to wear a GPS tag is an interference with a person’s article 8 right but is in principle in accordance with the law.

2. The applicable policy requires regular reviews as an integral part of the lawful administration of an electronic monitoring condition. Failing to review the circumstances in which an electronic monitoring condition has been imposed on a regular basis undermines the legality of continuing to impose such a condition. 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.

3. A failure by the SSHD to adhere to the policy will amount to a public law error 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”.

4. Requiring an applicant to wear a GPS tag for extended period when it is known not to work and thus serves no useful purpose may result in there being inadequate justification for the interference caused by the electronic monitoring condition.

5. Whether or not the continued imposition of electronic monitoring and the GPS tag meet the requirements of proportionality requires identifying 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. 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.