KS (Sri Lanka) v Secretary of State for the Home Department

The statutory power to impose electronic monitoring on an adult subject to immigration reporting restrictions is reviewable on Wednesbury principles. The question is whether the decision to impose or maintain tagging had adequate rational grounds directed to preventing absconding. Alleged reporting failures may be questionable, but they do not make the decision irrational where other adequate grounds exist, including use of a false passport, failure to leave after exhausted appeal rights, and persistent attempts to remain in the United Kingdom. The wider use of tagging does not itself create a compelling reason to renew an otherwise unarguable challenge.

KS, a Sri Lankan national, challenged electronic tagging imposed during the period in which his immigration status remained unresolved. The tagging was imposed under section 36(3) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, following reporting obligations and threatened removal. Sir Michael Harrison refused permission on the papers, and Pitchford J refused permission on 19 May 2008. A paper appeal before Richards LJ was rejected, subject to a short extension of time.

At the oral renewal before the Court of Appeal, KS no longer pursued the Article 5 or statutory applicability grounds. The central issue was whether the Secretary of State had acted perversely or unreasonably in imposing and maintaining tagging despite disputed reporting breaches and a claimed fresh asylum claim.

1. Application refused. The Court of Appeal considered only the challenge based on perversity or Wednesbury unreasonableness. The arguments that tagging infringed Article 5 of the European Convention and that section 36(3) did not apply were no longer pursued.
2. Section 36(3) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 permits electronic monitoring to be required instead of a reporting restriction where a reporting restriction could be imposed on an adult. The electronic-monitoring requirement is treated as a reporting restriction for the purposes of the Immigration Acts (para [5]).
3. The Secretary of State was required to weigh the necessity for conditions intended to ensure that the claimant did not abscond. The Court accepted that some alleged reporting failures might have resulted from errors, including the allegation concerning Christmas Day and the brief recorded breaches of the tagging restrictions. That did not determine the rationality of the decision.
4. There were adequate grounds for imposing and maintaining the tag. They included KS’s entry on a false passport, his failure to leave when his appeal rights were exhausted, and persistent attempts to ensure that he remained in the United Kingdom. In those circumstances the challenge could not succeed on Wednesbury grounds, even assuming that some of the reporting evidence was unreliable (paras [8]–[10]).
5. The fact that tagging might be more widely used did not provide a compelling reason for the appeal to proceed where this individual challenge had no sufficient prospect of success. The application was therefore refused.

• Court of Appeal (Civil Division): Oral renewal of the application for judicial review refused; the application was dismissed in [2008] EWCA Civ 1080.
• High Court of Justice, Administrative Court: Pitchford J refused permission to apply for judicial review on 19 May 2008.
• Earlier permission stages: Sir Michael Harrison refused permission on the papers on 10 December 2007. Richards LJ rejected the paper appeal on 8 August 2008 but granted a short extension of time.