The High Court has ruled that the Home Secretary’s use of electronic monitoring of four claimants was unlawful, a decision which has broader implications for future similar cases. However, the court upheld the Home Secretary’s right to use data from electronic monitoring to make decisions on leave applications for individuals who have been tagged. This ruling comes from the case ADL & Ors v Secretary of State for the Home Department [2024] EWHC 994 (Admin).
Background
On June 15, 2022, the Home Office initiated a pilot scheme for electronic monitoring which targeted individuals who arrived in the UK via perilous journeys, such as those arriving by small boats. The pilot scheme concluded on December 15, 2023.
Quarterly reviews of the use of electronic monitoring on individuals were mandated, but a backlog was noted by the Independent Chief Inspector of Borders and Immigration in July 2022. By February 2023, the backlog had reached 1,912 cases, decreased to 348 by May 2023, but rose again to 970 by October 2023. The backlog was attributed to staff shortages, delays in implementing a new IT system, and a guidance error requiring higher executive officer authorization for maintaining electronic monitoring.
The Claimants
Four claimants were involved. These included:
- ADL: Monitored from July 14, 2022, to October 31, 2022.
- Fabio Dos Reis: An EU national monitored from March 7, 2022, to October 27, 2022, later granted settled status.
- BNE: Monitored from May 26, 2022, to November 7, 2022.
- PER: Monitored from July 19, 2022, to the hearing date, with a switch to a handheld device on October 26, 2023.
Three claimants were deportation cases; one was not. One had been granted bail by the First-tier Tribunal, and the others by the Home Secretary. Representations made on behalf of ADL before monitoring were ignored, and quarterly reviews were delayed in three cases.
Judicial Review
The review challenged the imposition, review, and data retention from electronic monitoring. During the proceedings, the Information Commissioner issued an enforcement notice for data breaches, and the Upper Tribunal ruled on a related case.
The High Court addressed several issues:
1. Decision-Making and Reasons for Monitoring: The Home Secretary failed to consider whether imposing monitoring was impractical or violated human rights (ADL and PER). The failure to provide reasons affected BNE and ADL.
2. Quarterly Reviews: The court refused to amend grounds on the lack of quarterly reviews.
3. Article 8 Rights: The failure to provide reasons did not make monitoring unlawful, but not considering representations or practicality did for two claimants.
4. Necessity and Proportionality: Monitoring was deemed unnecessary beyond a certain period for ADL and BNE.
5. Retention of Trail Data: The Home Secretary was not required to make individual decisions on retaining trail data.
6. Use of Monitoring Data: The use of data for leave applications was lawful.
7. Proportionality of Data Retention: Retaining data was deemed unlawful for Dos Reis and ADL due to specific circumstances.
Our thoughts
The court’s decision on electronic monitoring’s lawfulness provides critical guidance, though concerns remain about using potentially inaccurate monitoring data in leave applications. Practitioners should review the Nelson decision and consider recommended steps for clients in similar situations.
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