[2024] UKUT 00141 (IAC)

The respondent has a policy in relation to immigration bail, and whilst the version presented to the hearing was version 16, and the version current at the time of these events was version 11, we were advised that there was no material difference between these two versions for the purposes of this application. The policy addresses the approach to be taken in relation to the administration of bail subject to an electronic monitoring condition by GPS tag. It notes, for instance, that trail data from the tag will be held by the supplier of the electronic monitoring tag and only accessed by the respondent under certain circumstances and where “proportionate and justified in the circumstances in accordance with data protection law” as per the respondent’s policy. Amongst those circumstances is whether there has been a breach of immigration bail conditions, and including where contact via electronic monitoring has been lost, with a view to locating the individual subject to the condition. The data may also be sought from the electronic monitoring supplier when it may be relevant to a claim made by an individual under Article 8.

In particular, the policy explains that the use of electronic monitoring requires regular review and provides the following in respect of that requirement:

“The use of EM and all supplementary conditions to EM must be reviewed by a decision maker in any case allocated to them:

• on a quarterly basis

• when they receive any representations on the matter, including requests to vary the condition, from the individual or a person acting on their behalf

• when considering the response to a breach of immigration bail

• when a request is made by another decision maker

The purpose of the review is to ensure that the individual remains suitable for both EM and any supplementary condition or conditions and any EM or conditions continue to be necessary and proportionate in light of the facts at the date the review is undertaken. The review will also provide an opportunity to consider whether the device type remains the most appropriate. In all cases regard must be had to the matters set out in exercising the power to grant immigration bail, and the guidance set out in Use of EM. It will be necessary to consider movement between devices in both directions such as from fitted to non-fitted as well as non-fitted to fitted.

Factors to be taken into consideration will include, but are not limited to:

• the overall time spent on EM

• the time on the particular device type

• the risk of absconding

• the risk of harm posed to the public

• the risk of re-offending

• the expected time until removal

• any vulnerabilities

• compliance with immigration bail”

The policy goes on to consider the purpose and substance of the reviews that it is contemplated must take place on a quarterly basis. The substance of the policy is set out as follows:

“The general expectation is that a person who poses a greater risk of harm and has been less compliant with immigration bail will remain on EM longer than a compliant person who poses a lower risk of harm. These considerations will also impact on how appropriate it is to use a non-fitted device where the person poses a high risk of harm or has been non-compliant with their bail conditions. A person’s failure to comply with the conditions attached to a fitted device may be considered an indication of the likelihood of non-compliance with conditions attached to a non-fitted device. The risk of harm posed by that person will influence the degree of tolerance that will be had to such potential non-compliance. This expectation is subject to practicality considerations as the available resources are applied to those who pose a greater risk to the public and/or of absconding over an extended period. Should there be no issue in regarding the availability of resource (that is, available devices and the necessary resource to monitor them) decisions will be made on Convention Rights grounds or on the basis that it is impractical to do so given the person’s individual circumstances (as detailed further in paragraph 2 (9) of Part 1 of Schedule 10 to the Immigration Act 2016).

…

Whilst EM Reviews provide the opportunity to consider whether the use of EM is or remains appropriate they do not provide a linear progression in all cases. It is possible that EM may not be appropriate for a period of time even where the EM duty would otherwise apply but a change of circumstances may make it appropriate at a later date. It may be possible to move a person between device types where there are changes in a person’s vulnerability or their compliance with their bail conditions. Decisions to remove a person from EM, where the duty applies, will be based either on the basis that there is a breach of a person’s Convention Rights or on practicality grounds. Decision makers must use the 3-month EM Review pro-forma to carry out reviews and must consider:

• the need for continued monitoring

• whether the device type continues to be appropriate

• the continued necessity of the supplementary condition or conditions – whether each supplementary condition is still necessary or if the circumstances changed sufficiently that each supplementary condition no longer serves its intended purpose

• the proportionality of the supplementary condition – whether the current restrictions imposed by that condition are still appropriate as follows:

•

curfews - both in terms of timing and length, whether there is a basis on which to alter the curfew, for example if family circumstances have changed significantly or they have been transferred from a radio frequency device to a GPS device

•

inclusion or exclusion zones – in terms of the location, size and number of zones, for example does the reason for setting the zone still apply

• any challenge to the supplementary conditions or conditions – whether there has been a challenge to the supplementary condition or conditions from the individual or legal representatives, whether an argument has been made and how strong this is.”

The policy also provides information in relation to a decision support tool which utilises automated business rules, as well as providing further detail in relation to the minimum time period which it is expected a person would be spending on an electronic monitoring device whether fitted or non-fitted. The policy also engages with the use of data collected by the GPS tag. Notwithstanding the reference in the policy to the decision support tool, in his third witness statement Mr Stephen Murray, Area Director of Satellite Tracking Services for the respondent, states at paragraph 9 that this decision support tool for automated decision taking has not been used in the applicant’s case as it awaited launch at the time of him writing that witness statement and was still in development.