ADL & Ors v Secretary of State for the Home Department

A public authority must comply with its published policy requiring periodic review of an electronic monitoring condition, absent good reason to depart from it. A failure to conduct a required review may render continuation of the condition unlawful and incompatible with Article 8.

Before imposing monitoring, the decision-maker must consider whether it is impractical or contrary to the person’s Convention rights. A failure to consider those matters may invalidate the condition. A failure to give reasons, however, does not necessarily do so where the duty to give reasons arises only after the decision.

Trail data lawfully collected and retained under Immigration Act 2016 Schedule 10 may be used for Schedule 10 purposes, including assessing Article 8 representations and further submissions.

Four individuals challenged electronic monitoring conditions imposed as part of immigration bail, together with the handling of periodic reviews and the retention and use of location data. The claims concerned both deportation and non-deportation cases, and included challenges based on Article 8 of the Convention, common law public duties, and the statutory scheme in Schedule 10 to the Immigration Act 2016.

The principal issues were whether the Secretary of State had properly considered Convention rights and representations before imposing monitoring; whether late reviews affected the lawfulness of continuing monitoring; whether reasons were required; and whether trail data could be retained and used for immigration purposes.

1. The court found that the Secretary of State had failed to consider whether imposing electronic monitoring would be impractical or contrary to Convention rights in the cases of ADL and PER. In ADL’s case, he had also failed to consider representations. Those failures made the condition unlawful from imposition until 12 August 2022 in ADL’s case and until 18 November 2022 in PER’s case: [140]-[141], [237]-[240].

2. The Secretary of State was under a duty to give reasons for rejecting BNE’s representations and for imposing monitoring on ADL. The reasons given to BNE were inadequate because they addressed only the alleged medical impact and not the risks of absconding, reoffending or harm. The failure to give reasons did not itself render the conditions unlawful, because the duty arose after the decision and did not bear on the decision to impose or maintain monitoring: [153]-[160], [241].

3. The published policy required reviews within three months of imposition and of each review. Although permission to amend the claims concerning late reviews was refused for delay, the court held that failure to comply with the policy was unlawful absent good reason. Staff shortages did not constitute good reason on these facts. Applying Nelson, timely reviews were fundamental to the propriety of continued monitoring: [167], [176]-[181], [232]-[235].

4. Monitoring was initially proportionate in BNE’s case, but became potentially unlawful after medical evidence showed a likely deterioration in his mental health. In ADL’s case it became disproportionate once the Secretary of State had considered medical evidence showing that monitoring had exacerbated his psychiatric conditions: [249]-[260].

5. The Secretary of State was not required to make an individual retention decision for every person when monitoring ended, provided that requests for deletion remained open to consideration. Trail data could lawfully be used for Schedule 10 purposes, including responding to Article 8 representations and further submissions. Retention of Mr Dos Reis’s data ceased to be authorised when the deportation order was revoked; ADL’s data could not lawfully be retained because the monitoring condition was unlawful from the outset: [262]-[283], [285]-[287].