Upper Tribunal (Immigration and asylum chamber), 2024-03-11, [2024] UKUT 00141 (IAC) (R (on the application of Nelson) v Secretary of State for the Home Department (bail, requiring GPS tag, lawfulness))
| Judge | The Hon. Mr Justice Dove, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Date | 11 March 2024 |
| Published date | 17 May 2024 |
| Hearing Date | 13 November 2023 |
| Appeal Number | [2024] UKUT 00141 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | bail, requiring GPS tag, lawfulness |
UT Neutral Citation Number: [2024] UKUT 00141 (IAC)
R (on the application of Nelson) v Secretary of State for the Home Department
(bail; requiring GPS tag; lawfulness)
Upper Tribunal
(Immigration and Asylum Chamber)
In the matter of a claim for Judicial Review
Heard at Field House
THE IMMIGRATION ACTS
Heard on 10th & 13th November 2023
Promulgated on 11th March 2024
Before
THE HON. MR JUSTICE DOVE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
THE KING
on the application of
mark nelson
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Applicant: Sarah Hannett KC and Donnchadh Greene instructed by Wilson Solicitors LLP
For the Respondent: Zane Malik KC instructed by Government Legal Department
J U D G M E N T
1. Under Schedule 10 of the Immigration Act 2016 Act a person detained pending deportation can be granted bail only subject to an electronic monitoring condition”, - the wearing of a GPS Tag. Paragraph 2(5) of Schedule 10 of the 2016 Act provides for two exceptions to this mandatory requirement; where the imposition of such a condition on the person in question would be “impractical”, or, alternatively, “contrary to the persons convention rights”; whether that is so requires answering the 5 questions identified in Razgar. The requirement to wear a GPS tag is an interference with a person’s article 8 right but is in principle in accordance with the law.
2. The applicable policy requires regular reviews as an integral part of the lawful administration of an electronic monitoring condition. Failing to review the circumstances in which an electronic monitoring condition has been imposed on a regular basis undermines the legality of continuing to impose such a condition. The fact that a later review might conclude that the imposition of the condition had been practicable and in accordance with the applicant’s human rights, does not eliminate or obscure the failure to conduct a review at all, or the failure to conduct a review lawfully. Such a conclusion may, however, be directly relevant to the subsequent question of relief.
3. A failure by the SSHD to adhere to the policy will amount to a public law error which renders the requirement to wear the GPS tag during the period when reviews should have been but were not carried out, or alternatively were carried out incompetently, not “in accordance with the law”.
4. Requiring an applicant to wear a GPS tag for extended period when it is known not to work and thus serves no useful purpose may result in there being inadequate justification for the interference caused by the electronic monitoring condition.
5. Whether or not the continued imposition of electronic monitoring and the GPS tag meet the requirements of proportionality requires identifying the factors weighing in favour and against the electronic monitoring condition and the GPS tag being retained. That enables an appropriate analysis to be undertaken of the proportionality requirement. The importance of maintaining a prompt and effective system of enforcement of immigration control together with the risks of absconding and the potential proximity of the end of the applicant’s appeal proceedings all attract significant weight in the balancing exercise.
Introduction
1. The applicant brings this claim for judicial review in relation to the ongoing decision of the respondent to make him subject to a condition of electronic monitoring imposed by the wearing of a global positioning satellite (“GPS”) tag.
The factual background
2. The applicant is a national of Jamaica and was born on 30th January 1979. He arrived in the United Kingdom on 10th September 2000 and was ultimately granted indefinite leave to remain in the United Kingdom on 23rd October 2007. On 8th May 2017 the applicant was sentenced to a total of 48 months imprisonment as a result of his conviction for possession with intent to supply a class B drug, abstracting electricity and two offences of racially aggravated intentional harassment.
3. The respondent took action to deport the applicant including the making of a deportation order on 13th July 2018. The applicant responded to this deportation order by making human rights representations on 19th December 2018. This human rights claim was refused by the respondent without a right of appeal, in error, on 8th February 2019. The applicant made further representations on 21st March 2019, which were also refused without a right of appeal in error on 17th May 2019. These decisions were subsequently withdrawn and the applicant’s human rights claim was refused with a right of appeal on 31st May 2019, a decision which the applicant appealed to the First-tier Tribunal (“FtT”). The applicant was entitled to be released from prison on 8th May 2019 but he continued to be detained under immigration powers. On 19th August 2019 the applicant was granted immigration bail by the FtT subject to conditions including weekly reporting, a residence condition, a prohibition on work and study and a requirement that he attend his probation meetings as he was still on licence.
4. On 2nd November 2021 the FtT heard the applicant’s appeal against the refusal of his human rights claim and by a decision of the 17th November 2021 the applicants appeal was dismissed. On 1st December 2021 the applicant applied for permission to appeal the FtT decision. The FtT refused his application for permission to appeal and so on 15th March 2022 the applicant applied to the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) for permission to appeal. Notwithstanding this outstanding appeal, the applicant was detained under immigration powers on 5th May 2022. The following day he was served with removal directions which had to be cancelled on 13th May 2022 owing to the appeal to the UT remaining outstanding. On the same day the FtT granted the applicant immigration bail subject again to a number of conditions on this occasion including electronic monitoring. The condition was imposed pursuant to paragraph 2(1)(e) of Schedule 10 of the Immigration Act 2016 (see below). By virtue of the order of the FtT Judge dated 13th May 2022 “future management including any application for variation shall be exercised by the Secretary of State pursuant to paragraph 6(3) of Schedule 10 to the Immigration Act 2016”.
5. On 17th May 2022 the applicant was fitted with a GPS tag and released from detention. Coincidentally on the same date the UT granted the applicant permission to appeal the decision of the FtT. On 29th June 2022 the applicant’s solicitors wrote a pre-action protocol letter to the respondent challenging the decision to impose the electronic monitoring condition on the applicant and complaining amongst other matters that to do so breached the applicants Article 8 rights. On the same date the applicant’s solicitors emailed the respondent reporting that the applicant’s tag was too tight and requesting that it be loosened as it was causing him discomfort and pain. Further, it was pointed out that the tag required frequent charging at least every 4-5 hours which was causing the applicant distress due to fear of the device running out of battery charge and the restrictive nature of having to charge the device so frequently.
6. The applicant’s solicitors commissioned a forensic psychiatric report from Dr Nuwan Galappathie, who examined the applicant on 21st August 2022 and produced a report dated 31st August 2022. Dr Galappathie expressed the view that the applicant was suffering with severe depression related to his deportation proceedings and the imposition of the GPS tag. Dr Galappathie also considered that the applicant suffered from a generalised anxiety disorder which he considered had been caused by the GPS tag. Furthermore, Dr Galappathie was of the opinion that the distress of having a GPS tag had triggered the development of symptoms of PTSD in the applicant. He concluded that the applicant’s depression, anxiety and PTSD had been caused by the imposition of electronic monitoring and the GPS tag, and that his mental conditions would be assisted by the removal of the tag. This report was sent to the respondent under cover of a letter dated 6th September 2022, in which the applicant’s solicitors requested the respondent review the requirement for the electronic monitoring condition. The provision of this medical evidence was followed on 14th September 2022 by the applicant’s solicitors serving on the respondent a copy of a Probation Service OASys report on the applicant assessing him as posing a low risk of reoffending, and stating that the Probation Service had no concerns about the applicant absconding.
7. On 17th September 2022 the UT heard the applicant’s appeal against the FtT decision on his human rights appeal. Although, in accordance with the respondent’s policy, a review of the electronic monitoring ought to have taken place either after receipt of the applicant’s pre-action protocol letter on 29th June 2022 or three months after the initial imposition of the tag, that is to say by 17th August 2022, it was not until 10th October 2022 that the respondent undertook a review of the imposition of electronic monitoring. Whilst it was initially disputed, it is now conceded by the respondent that the review which was undertaken on 10th October 2022 was unlawful, in particular in relation to the assessment of psychiatric evidence within that review and the question of diagnosis. The review led to the decision that the imposition of electronic monitoring by way of a GPS tag should be maintained.
8. These proceedings were commenced on 7th November 2022. On 23rd November 2022 the applicant was visited at his home address and a new GPS tag was installed by the respondent’s contractors. The GPS tag was not sufficiently charged by the installers and ran out of charge within an hour of being fitted. The applicant was concerned that despite charging the tag a light on it continued to flash. On 24th...
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