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on February 8, 2023
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The subject of how migrants to the UK are treated – including when they are on immigration bail – has become a major topic of conversation in recent times, and not for the right reasons.
In January 2023, these discussions flared up again, when it was reported that under plans being prepared by the Home Office and the Ministry of Justice, people facing deportation would be required to scan their fingerprints several times a day, using devices installed with GPS technology.
The Guardian newspaper reported on 13th January that potential deportees required to carry one of the handheld devices would be subject to 24/7 location tracking.
The news outlet added that users of the fingerprint scanners would receive alerts over the course of the day to submit their biometrics. They would also be obliged to constantly carry the device, which would store information such as the given person’s name, date of birth, and nationality, to be shared with authorities such as the Government and police.
The report further added that the fingerprint scanners – referred to as “non-fitted devices” – would be used instead of GPS-enabled ankle tags, for people who had been granted immigration bail and had been assessed as having specific vulnerabilities that prevented them from wearing a tag.
Although the company that has been handed a contract by the Government to produce the fingerprint scanners – Buddi Limited – has said the non-fitted devices represent a “more proportionate” solution compared to ankle tags, campaigners have argued that they are no less intrusive.
In the words of Lucie Audibert of Privacy International, a charity which promotes and defends privacy rights around the world: “The introduction of non-fitted devices shouldn’t be taken as a more humane and or proportionate measure… it’s just another step in building the total surveillance of migrants.”
The term “immigration bail” refers to a legal procedure available to those who have been detained by the Home Office in relation to immigration matters. It can be a route for a detained person to be released from detention; however, even those successfully granted bail will be required to obey at least one condition.
People who are being held in an immigration removal centre, a detention centre, or a prison are eligible to apply for immigration bail, provided that they are being held on immigration matters.
There are two main ways in which someone can apply for bail, depending on their situation. They might apply to:
If you apply to the Home Secretary for bail, your application will be decided by Home Office staff, and there will not be a hearing. In the event that you apply to the independent ‘First-tier Tribunal’ for bail, your application will be decided by an independent judge at a hearing.
If you are granted bail, you can expect to need to obey at least one condition. Citing a few examples of potential conditions, you might be required to:
Failing to follow the terms of your bail can have serious consequences, such as your bail conditions being altered with tighter restrictions. You could also be returned to immigration detention and/or charged with a crime.
Although the latest news about the emergence of “non-fitted devices” has brought fresh worries about the threat to migrants’ rights, this development represents just the most recent step in a movement towards the ever-tighter monitoring of migrants in the UK.
The electronic monitoring of people on immigration bail dates to 2004, when the Home Office began this in accordance with that year’s Asylum and Immigration (Treatment of Claimants, etc.) Act. A decade later, the Ministry of Justice awarded a contract to Telefonica to provide network services for electronic monitoring.
The 2020s, however, have seen rapid movements towards imposing ever-more stringent electronic monitoring conditions on migrants in the UK. From December 2020, the Home Office began transitioning from the use of radio frequency tags to a much more intrusive system of GPS monitoring for individuals on immigration bail.
It is this switch in policy that has ushered in an era of truly ‘real-time’, 24/7 location monitoring, with a tagged migrant’s every move being tracked. Whereas radio frequency monitors alert authorities in the event of a tagged individual leaving an assigned area, GPS trackers allow for an individual’s every move to be detailed around the clock.
Not only has the electronic monitoring of migrants become more intrusive, but it seems that the conditions allowing for its use have led to it affecting many more people.
A key step in this regard was the Government’s move in August 2021 to make electronic monitoring mandatory for anyone on immigration bail who met the deportation criteria, unless one of two exceptions applied. Those exceptions are where the Secretary of State considers tagging to be (a) impractical, or (b) contrary to the individual’s rights under the European Convention on Human Rights (ECHR).
While migrants’ rights organisations have drawn attention to the creeping effects of increasingly strict electronic monitoring of migrants in the UK, this evidence for this is also apparent in publicly available figures.
Before mandatory electronic monitoring, 269 people were fitted with a GPS tag, according to a freedom of information (FOI) response provided in May 2021. By comparison, under the mandatory electronic monitoring regime, the Home Office has anticipated that 4,500 people will be monitored.
Sure enough, recently released Home Office statistics point to a steep rise in the number of individuals being monitored using a GPS tag in England and Wales, in relation to immigration bail – from a few hundred people in September 2021, to well over 2,000 as of December 2022.
On 15th June 2022, a scheme referred to by the Home Office as “the electronic monitoring expansion pilot” began. The Home Office confirmed that the pilot would run for 12 months from this date, and “will test whether electronic monitoring 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 Home Office said at the time of the pilot’s introduction that Schedule 10 to the Immigration Act 2016 provided for the ability to apply an electronic monitoring condition upon individuals who were liable to detention in accordance with Paragraph 2(1)(e) of Schedule 10.
According to the department, anyone residing in England and Wales who is liable to detention could be granted immigration bail subject to an electronic monitoring condition, if the circumstances of their case justify this.
The Home Office has also justified the scheme by reasoning that it will enable the department to test the rate of absconding and obtain data on how frequently this occurs, in addition to establishing whether electronic monitoring and associated improvements in contact management help prevent absconding.
However, for the purposes of the pilot, the Home Office has said that electronic monitoring is not appropriate in any case where:
Set against the backdrop of the above increasingly strict treatment of migrants, there is considerable concern about the broad scope for people released from immigration detention in the UK to be fitted with an ankle tag, or required to use a fingerprint scanner.
Anyone who is on immigration bail in the UK can potentially be tagged in one way or another, without warning. There is also no time limit on how long someone can be tagged for. Furthermore, it is entirely at the Home Office’s discretion whether to tag someone, and it is not possible to challenge the imposition of tagging before a judge of the First-tier Tribunal.
In addition, the Home Office’s guidance on electronic monitoring as a condition of immigration bail makes clear that the Secretary of State will make the decision as to which type of device is to be used. Although representations can be received as to which type of device should be used, there is no opportunity for the person who will be tagged – or a representative acting on their behalf – to specify which type of device will be used.
As we have outlined in this article, there are many reasons to be concerned about electronic monitoring conditions that may be imposed on people on immigration bail, as part of the broader picture surrounding migrant rights. Indicators of the recent intensification of the Home Office’s 24/7 monitoring of affected migrants simply add to this concern.
Are you affected by any of the issues we have covered in this article, and would you like to receive advice, guidance, and support from trusted experts in UK immigration law? If so, you are very welcome to contact the Cranbrook Legal team today, whether by email or by calling 0208 215 0053, and to arrange a free consultation with us.
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