ADL & Ors v Secretary of State for the Home Department

The claimants challenged the imposition, review and data-retention consequences of electronic monitoring (EM) conditions imposed as immigration bail conditions under Schedule 10 to the Immigration Act 2016. The court considered (i) whether Home Office decision‑makers made a conscious, reasoned decision and gave reasons when imposing EM conditions; (ii) whether Home Office quarterly review practice was lawful; (iii) whether particular procedural defects rendered interferences with Article 8 rights "in accordance with the law"; and (iv) the lawfulness and proportionality of retention and use of GPS trail data.

The judge held that the Secretary of State failed to consider whether imposing EM conditions would be impractical or contrary to the claimant’s Convention rights in the cases of ADL and PER, and failed to consider ADL’s representations before imposing the condition. The Secretary of State also failed to give adequate reasons for rejecting representations in BNE’s case and failed to give reasons in ADL’s case. The court followed the Upper Tribunal in Nelson and applied the Lumba/Kambadzi line of authority to hold that late or omitted mandatory reviews and failures to consider the statutory and policy factors can render an EM condition unlawful for the affected period. The court found it lawful for the Secretary of State to use lawfully‑collected trail data for purposes within the scope of Schedule 10, but that trail data should not have been retained once the statutory basis ceased to apply (for example after revocation of the deportation order in Mr Dos Reis’ case) and that ADL’s trail data should not have been retained because the EM condition was unlawful throughout.

Background and parties: The claimants (four individuals) were released from immigration detention on immigration bail subject to GPS electronic monitoring (fitted ankle tags in most instances). The defendant was the Secretary of State for the Home Department. The claimants sought judicial review of various aspects of the imposition, review and data retention/use associated with EM conditions imposed under Schedule 10 to the Immigration Act 2016.

Nature of the claim and relief sought: The claimants challenged (i) the lawfulness of the decision to impose EM conditions and whether reasons were given, (ii) failures to carry out quarterly reviews in accordance with published policy, (iii) whether any such failures or other procedural defects rendered the interference with Article 8 ECHR not "in accordance with the law", (iv) the proportionality of EM in individual cases, and (v) retention and use of GPS trail data and whether individual decisions or deletions were required.

Procedural posture: First instance Administrative Court (Mr Justice Lavender). The court heard argument over three days and received post‑hearing evidence and submissions; the Upper Tribunal decision in R (Nelson) v Secretary of State for the Home Department (JR-2023-001472) was addressed in post‑hearing submissions.

Issues considered:

• whether decision‑makers made a conscious, reasoned decision and gave reasons when imposing EM conditions and whether the claimant had adequate opportunity to make representations;
• whether the Secretary of State’s published policy requiring quarterly reviews must be followed and whether delay made maintenance of EM unlawful;
• whether failures of procedure rendered the interference with Article 8 not "in accordance with the law";
• the proportionality of EM in individual circumstances (necessity in a democratic society);
• whether the Secretary of State must make individualised retention decisions about trail data and the permissible uses of retained trail data;
• whether trail data retention was proportionate in particular cases.

Court’s reasoning (concise): The judge applied settled public law principles requiring a public authority to follow its published policy unless there is a good reason to depart (Lumba and related authorities) and the approach in Kambadzi and O concerning the effect of failure to carry out mandatory procedural safeguards on the lawfulness of detention or other executive mandates. The court accepted and followed the Upper Tribunal in Nelson that regular reviews are integral to the lawful administration of an EM condition and that failure to review in accordance with policy, absent good reason, can render continuation unlawful for the period of non‑compliance. On reasoning and disclosure, the court found a heavier evidential burden on the Secretary of State to show that the relevant decision‑maker considered the statutory and Convention issues before imposing EM; where the Secretary of State could not discharge that burden in ADL’s and PER’s cases, the imposition was unlawful. The court held that trail data may lawfully be used to respond to Article 8 representations or further submissions where such use falls within the purposes of Schedule 10, but retention cannot be continued once the statutory basis has ceased to apply (for example following revocation of a deportation order) and an unlawful EM condition cannot serve as a lawful basis to retain data.

Relief and practical result: The court refused permission to amend late grounds challenging historic review delays in specified earlier periods, but made findings that particular impositions or continuations of EM were unlawful for specified periods and indicated that the defendant should delete trail data for particular periods or entirely where the legal basis had ceased.

First instance determination: the court found a mixture of lawful and unlawful conduct. It held that the Secretary of State had unlawfully imposed or maintained EM conditions in particular cases by failing to consider whether imposing EM would be impractical or contrary to Convention rights (ADL and PER), and by failing to consider or to respond adequately to representations (ADL, BNE). The court followed Nelson and the Lumba/Kambadzi/O line of authority to hold that failure to comply with mandatory review policy can render continuation of an EM condition unlawful for the relevant period. The court declined to accept a general common law duty to give reasons in all cases where representations were not made. It also held that lawfully collected trail data may be used to respond to Article 8 representations but must not be retained once the statutory basis for retention ceases (eg after revocation of a deportation order or where an EM condition was unlawful throughout). The court refused permission to advance late amendments to challenge earlier review delays that ended more than three months before amendment was sought. Rationale: application of statutory scheme in Schedule 10, public law duty to follow policy unless good reason to depart, and Article 8 proportionality analysis.