Mark Nelson, R (on the application of) v The Secretary of State for the Home Department

Under Schedule 10 to the Immigration Act 2016, electronic monitoring is mandatory when immigration bail is granted to a person detained pending deportation, subject to exceptions where monitoring is impractical or contrary to Convention rights. Wearing a GPS tag interferes with Article 8, but is in principle lawful and sufficiently foreseeable when read with the statutory framework and published policy.

Regular reviews are an integral safeguard. Failure to conduct them, or to conduct them lawfully, is a public law error making continued monitoring not in accordance with the law for the affected period. A malfunctioning tag remains lawfully imposed in principle, but requiring its use for an extended period when it serves no useful purpose may be disproportionate. Continued monitoring requires a fact-sensitive proportionality assessment.

The applicant, a Jamaican national subject to deportation proceedings, was granted immigration bail by the First-tier Tribunal with a GPS-tagging condition under Schedule 10 to the Immigration Act 2016. His human rights appeal remained pending. The tag was defective for substantial periods, and reviews required by the respondent’s immigration bail policy were late and unlawful.

He sought judicial review, alleging breaches of Article 8, unlawful continuation of monitoring, and lack of statutory authority while the tag was inoperative. The central issues were whether GPS monitoring was lawful in principle, whether policy failures affected the legality of continued monitoring, whether the inoperative tag was disproportionate, and whether monitoring remained proportionate at the hearing date.

1. The claim succeeded in part. The requirement to wear a GPS tag is an interference with Article 8, but it is in principle in accordance with the law. Paragraphs 2 and 4 of Schedule 10 to the Immigration Act 2016 authorise arrangements requiring a person on bail to wear a device designed and intended to detect and record location data. Temporary malfunction or loss of signal does not, by itself, remove that statutory authority.

2. The statutory duty to impose electronic monitoring is qualified by the exceptions for impracticality and incompatibility with Convention rights. The respondent’s published policy, including its requirement for quarterly and event-triggered reviews, is an integral part of the legal framework. It supplies important safeguards supporting accessibility, foreseeability and protection against arbitrary interference.

3. Failure to conduct the required reviews, or to conduct them lawfully, is a public law error. It renders continued GPS monitoring not in accordance with the law during the period when the reviews should have occurred or were incompetently undertaken. A later lawful review showing that monitoring would have remained justified does not cure the earlier illegality, although it may affect relief, including the possibility of declaratory relief or nominal damages.

4. The applicant’s tag was non-functional for most of a 197-day period. Although minor interruptions are inherent in electronic monitoring, requiring the applicant to wear a tag known to be ineffective for many weeks served no useful purpose and lacked adequate justification under Article 8. The respondent should have repaired or replaced it sooner.

5. At the hearing date, continued monitoring was nevertheless proportionate. Significant weight attached to effective immigration control, the risk of absconding as the appeal process neared its end, and the potential risk of further offending. Countervailing factors included prior compliance, low reoffending risk, mental-health effects, prolonged monitoring and the earlier unlawful reviews. The conclusion was finely balanced and subject to change, reinforcing the need for regular lawful review. The parties were directed to settle the declarations and costs.

The judgment describes earlier proceedings but is itself a judicial review decision rather than an appeal from a reported judgment.

• First-tier Tribunal: granted immigration bail on 13 May 2022 with electronic monitoring; the applicant’s human rights appeal had previously been dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): permission to appeal was granted, but the appeal was dismissed on 26 January 2023.
• Upper Tribunal (Immigration and Asylum Chamber): judicial review claim determined with declarations reflecting unlawful reviews and the additional period identified in the postscript.