The Home Office’s use of a GPS tag to monitor a migrant was unlawful for over a year, a court has ruled, in the first case of its kind.
Mark Nelson, a car mechanic and father-of-five, has been kept under surveillance by the Home Office using an ankle tag for almost 22 months.
He challenged the Home Office’s decision to GPS tag him on the basis it is an “unjustified intrusion into his privacy, under Article 8 of the European Convention on Human Rights”, said Wilson Solitiors LLP, which acts for him.
Mr Nelson also argued that it was unlawful to make him wear a tag which was broken for almost six months.
This was the first court case to consider the lawfulness of the Home Office’s policy of GPS tagging migrants.
Mr Nelson, 45, is a Jamaican national who has lived in the UK for more than 24 years, since September 2000.
He was granted indefinite leave to remain in the UK in October 2007.
In May 2017, he was sentenced to 48 months in prison after being convicted of possession with intent to supply a class B drug, abstracting electricityand two offences of racially aggravated intentional harassment, court documents show.
The Home Office ordered Mr Nelson to be deported, but Mr Nelson made a human rights claim. This was initially refused by the Home Office in Mary 2019, but Mr Nelson appealed the decision.
His appeal was dismissed in November 2021.
While Mr Nelson applied to again appeal the decision, he was detained under immigration powers on May 5, 2022.
He was granted immigration bail subject again to a number of conditions including electronic monitoring, under Schedule 10 of the Immigration Act 2016.
Mr Nelson was fitted with a GPS tag on May 17 and was released from detention.
He has now challenged the Home Office’s use of the tag in court.
Wilsons Solicitors LLP said that as there have not yet been any court judgments on the policy, the Home Office has until now been “marking its own work”.
“The main way it is supposed to be doing this is by reviewing the necessity of GPS tagging at least every three months, as required by the Home Office’s own policy,” said the firm in a statement.
“Throughout Mark’s case, however, the Home Office failed to conduct lawful or timely reviews, leading the court to find that making Mark wear a tag amounted to a breach of his rights for over a year under Article 8 ECHR and was a public law error.
“The court also agreed with Mark’s arguments that it was unlawful for the Home Office to tag him for the six months when the Home Office knew it was not working.”
The court ruling said the lack of regular reviews of Mr Nelson’s tag between June 29, 2022, and July 17, 2023, amounted to “a public law error”.
The ruling added that Mr Nelson’s tag was non-functional for a period of 197 days. “During this lengthy period the conceded interference with the applicant’s article 8 rights was essentially pointless,” it said.
“He was required to wear the GPS tag for many weeks whilst it was serving no useful purpose at all.”
However, the court found that wearing the tag at the time of the hearing was proportionate and Mr Nelson continues to be tagged.
He now intends to apply to the Court of Appeal for permission to appeal this point.
Mr Nelson, who lives in a town in northern England, said: “This tag is inhumane, pointless and brutal.
“I am proud we won on so many important points today, but I intend to keep fighting so that the Home Office can no longer subject people to this cruel and dystopian technology.”
Mr Nelson’s solicitor, Katie Schwarzmann, said: “This judgment is a lesson to the Home Office that it is not above the law when it subjects people to 24/7 surveillance.
“It can no longer impose such intrusive forms of surveillance on people without regard for whether the technology is working or whether it is – and continues to be – absolutely necessary.”
Wilson Solicitors LLP represents a number of people who are challenging the Home Office’s imposition of GPS tags on them.
A Home Office spokesperson said: “Foreign nationals who abuse our hospitality by committing crimes in the UK should be in no doubt of our determination to deport them.
“Where removal isn’t immediately possible, electronic monitoring can be used to manage foreign national offenders released on immigration bail.
“We are pleased the court agreed with our overall assessment that the use of electronic monitoring was proportionate in this case.”
The court case findings follows a recent decision by the Information Commissioner's Office (ICO) on the Home Office’s use of people’s data under its pilot GPS tagging scheme.
According to the ICO, since August 2022 the Home Office has used GPS ankle tags on up to 600 migrants who were on immigration bail, under a pilot scheme.
The ICO this month issued a formal warning about the practice, which it found breached UK data protection law. It said the Home Office had “failed to sufficiently assess the privacy intrusion of the continuous collection of people’s location information”.
John Edwards, UK Information Commissioner, said: “Having access to a person’s 24/7 movements is highly intrusive, as it is likely to reveal a lot of information about them, including the potential to infer sensitive information such as their religion, sexuality, or health status.
“Lack of clarity on how this information will be used can also inadvertently inhibit people’s movements and freedom to take part in day-to-day activities.
“If such information were to be mishandled or misinterpreted, it could potentially have harmful consequences to people and their future. The Home Office did not assess those risks sufficiently, which means the pilot scheme was not legally compliant.
"We recognise the Home Office’s crucial work to keep the UK safe, and it’s for them to decide on what measures are necessary to do so. But I'm sending a clear warning to the Home Office that they cannot take the same approach in the future. It is our duty to uphold people’s information rights, regardless of their circumstances."
