Migrants entering the UK illegally to be electronically tagged

By Amer Zaman

on September 11, 2022

Read Time: 7 Minutes

The Home Office has launched a 12-month trial, whereby some asylum claimants who arrive in the UK on small boats or in the back of lorries could be subject to electronic tagging.

The pilot scheme began on 15th June 2022, and it has been reported that those tagged could include adults due to be removed from the UK after entering the country via what the government has described as “dangerous or unnecessary” routes.

In its Immigration bail conditions: Electronic monitoring (EM) expansion pilot document setting out the scheme, the Home Office said that “Schedule 10 of the Immigration Act 2016 provides for the ability to apply an electronic monitoring (EM) condition upon individuals who are liable to detention in accordance with Paragraph 2(1)(e) of Schedule 10.”

UK Prime Minister Boris Johnson defended the move on the basis that it was important to “make sure asylum seekers can’t just vanish into the rest of the country”.

However, the scheme has also sparked controversy, with critics suggesting that electronic tagging demonises those fleeing persecution in other countries, treating them as criminals.

Which migrants could be electronically tagged under the scheme?

The Home Office has said that the programme “will operate and will test whether electronic monitoring (EM) is an effective means by which to improve and maintain regular contact with asylum claimants who arrive in the UK via unnecessary and dangerous routes and more effectively progress their claims toward conclusion.”

The department said that individuals who fell within the trial’s scope should be considered for electronic monitoring, unless taking this step would:

  • Breach the migrant’s Convention Rights
  • Not be practical for the given migrant

For the purposes of the above, the term “Convention Rights” refers to Human Rights under the Human Rights Act 1998 and European Convention on Human Rights (ECHR).

The Home Office further explained: “Any person residing in England and Wales who is liable to detention may be granted immigration bail subject to an EM condition if justified by the circumstances of the case. Due regard should be given to the need to seek representations and the need to conduct regular reviews.”

In practice, it is not yet clear exactly how many people are likely to be subject to such EM conditions, or how keen immigration judges will be on setting bail conditions where electronic tagging will be a requirement.

Why is the government looking to electronically tag asylum claimants?

It is known that the government and officials at the Home Office have been left frustrated by recent setbacks – including in the courts – in their efforts to, in the words of Home Secretary Priti Patel, “toughen our stance against illegal entry and the criminals that endanger life by enabling it.”

The news of the introduction of the electronic tagging scheme emerged as Ms Patel claimed that a European court decision that effectively halted the first Rwanda-bound removal flight under the ‘Migration and Economic Development Partnership’ between the two countries, was “absolutely scandalous” and politically motivated.

The decision in question saw the European Court of Human Rights (ECHR) grant an injunction leading to the cancellation of a chartered flight that had been set to head to the Rwandan capital of Kigali.

The Home Secretary said, in an interview with The Daily Telegraph: “You’ve got to look at the motivation. How and why did they make that decision? Was it politically motivated? I’m of the view that it is, absolutely.

“The opaque way this court operated is absolutely scandalous. That needs to be questioned.

“We don’t know who the judges are; we don’t know who the panel are; we haven’t actually had a judgement – just a press release and a letter saying we can’t move this person under rule 39.

“They’ve not used this ruling previously, which does make you question the motivation and the lack of transparency.”

How does all of this relate to the electronic tagging scheme? Well, it is another move that perhaps indicates the government’s determination to be seen to be tough on those migrants it believes to be effectively ‘gaming’ the asylum system.

Cynics might also be tempted to suggest that the programme could serve as a distraction from the government’s failure to reduce the numbers of migrants arriving in the UK after making journeys in small boats across the Channel.

By the time the news of the electronic monitoring programme broke cover, the numbers of people crossing from France in this way had already exceeded 11,000 for 2022.

What has been the response to the programme?

The opposition Labour Party was critical of the pilot scheme, with Leader of the Opposition Sir Keir Starmer suggesting the government was “chasing headlines” with the policy.

Mr Starmer said: “What I want is a serious response because nobody wants these journeys across the Channel to be made, these perilous journeys.

“Everybody wants to clamp down on the gangs. That requires grownup work with the French authorities and upstream work to actually tackle these gangs. You don’t do that if you’re a government that is asking the National Crime Agency to make cuts.”

Refugee Council chief executive Enver Solomon had a scathing verdict of the scheme, suggesting it showed a government that was “intent on treating men, women and children who have fled war, bloodshed and persecution as criminals.”

He described the policy as a “draconian and punitive approach [that] not only shows no compassion for very vulnerable people; it will also do nothing to deter those who are desperately seeking safety in the UK.”

Not all the initial responses to the scheme from outside government were negative. Tony Smith, former Director General of the UK Border Force, said that he thought the electronic tagging of those eligible to be removed from the UK was “sensible” in principle, but further information was required on the criteria for imposing such EM conditions on some migrants.

Are those crossing the Channel in small boats ‘refugees’ or ‘economic migrants’?

One of the key ‘flashpoints’ between the UK Government and groups campaigning for refugee protections, has been the question of whether those making the dangerous crossing over the English Channel can be best categorised as ‘economic migrants’, or instead ‘refugees’.

Home Secretary Priti Patel told MPs and peers in 2021 that 70% of people making the crossing were “single men who are effectively economic migrants”, and the government has also repeatedly used the term “migrants” to refer to those attempting this journey.

However, this contrasts with a previous statement by the United Nations refugee agency, the High Commissioner for Refugees, that a “clear majority” of those entering the UK by small boat over the Channel should be considered to be refugees fleeing persecution or conflict.

In addition, the Refugee Council has previously published research indicating that most people who do cross the Channel and arrive in the UK in this way are likely to be granted leave to remain as refugees. Only about a third of those who complete the journey are not subsequently deemed to have fled persecution.

The report drew upon Freedom of Information (FoI) and Home Office data. Further supporting the case that most of those undertaking the Channel journey by small boat can be considered to be refugees rather than economic migrants, it was found that 91% of people arriving in the UK in this manner came from 10 countries known for frequent persecution and human rights abuses. These countries were Afghanistan, Syria, Iraq, Iran, Vietnam, Sudan, Kuwait, Yemen, Eritrea, and Ethiopia.

Furthermore, Home Office statistics indicate that 98% of people crossing the Channel by small boat go on to claim asylum.

What conditions must be fulfilled for a migrant to be electronically tagged?

In addition to the requirements outlined above, the Home Office has said that for the purposes of the trial, it would not be appropriate to impose any EM condition in any case where:

  • The migrant is under the age of 18
  • The person is released from detention under Sections 37 or 41 of the Mental Health Act 1983 where the person remains subject to a supervision order
  • The person has been pregnant for at least 18 weeks, or gave birth as recently as up to three months ago
  • The person is to reside or is resident in Scotland or Northern Ireland  

The Home Office’s explanation of the policy also stated that “the Secretary of State may decide not to impose an EM condition if the Secretary of State considers that to do so would be impractical.” It cited as an example of this, a given individual residing in a property that has a poor GPS signal and is not served by electricity.

The department further explained that the number of devices available over the course of the 12-month pilot scheme would be lower than the number of people falling under the scope of the programme, thereby creating a need for the use of the devices to be regulated.

Seek help and advice from our solicitors on your own immigration case

Are issues such as the potential or actual use of electronic tagging of concern to you in your own immigration case? If so, please do not hesitate to reach out to our experts in immigration law here at Cranbrook Legal for suitably informed and tailored advice and guidance. You are very welcome to call us, on 0208 215 0053, or to complete and submit our online form to arrange a free consultation with a member of our professional and friendly team.

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