ADL & Ors v Secretary of State for the Home Department [2024] EWHC 994 (Admin)

“The outcome of the review of EM and of any supplementary condition or conditions, including the consideration undertaken by the decision maker and any escalation to HEO or higher, should be recorded in a comprehensive file minute and on Atlas.”

“The main limiting factor affecting Hub staff performance was the level of staff resource available to deal with the volume of case work. Managers had ensured that the tagging of individuals on release was prioritised in line with the Secretary of State’s duty and that legal representations and challenges, pre-application protocol letters (PAPS) and judicial reviews (JRs) were responded to within specified timescales. However, this resulted in a backlog in “other areas of case work.”

“… EM reviews of those already fitted with a tag, which should be undertaken at 3-monthly interviews, were only being conducted when representations were received in respect of an individual.”

“We oppose the use of electronic tagging for the reasons set out below, however, this please note should not be seen as an obstacle to our client’s release or a cause of delay.”

“[BNE’s] release has been granted by the Director with Electronic Monitoring as part of the condition of release. [BNE’s] Adult at Risk has been reviewed and decision has been made to proceed with Electronic Monitoring before he is released from detention. [BNE’s] Electronic Monitoring will be subjected to review should substantial evidence be submitted stating why Electronic Monitoring is detrimental to his physical and/or mental health.”

“Assessment indicates that there is the potential for a worsening of [BNE’s] mental health functioning, should he remain subject to tag. He describes feeling stressed and depressed at the thought of being subject to monitoring and surveillance, and he feels ashamed of having to wear a tag during hot weather when it is visible to others. He has a diagnosis of depression and describes frequent thoughts of suicide. He fears being targeted by gangs, and he feels like he is being restricted to his house and has lost any sense of freedom, since being released. Tagging can result in a feeling of being coerced and controlled by monitoring and surveillance, and this has clear parallels with [BNE’s] experience as a victim of trafficking. It is highly likely that further deterioration in his mental health would result from being subject to constant surveillance and in my opinion would likely impede his recovery as a victim of trafficking.”

“In my opinion, his GPS tag has exacerbated his depression, anxiety and PTSD. Whilst the acute symptoms of his condition appear to have reduced such as a reduction in suicidal thoughts and nightmares, it is notable that he continues to suffer from other symptoms of depression, anxiety and PTSD following his release to the community and these symptoms appear to have been exacerbated by his electronic monitoring requirement and the need for a GPS tag. [ADL] outlined experiencing high levels of distress as a result of electronic monitoring and having to wear a GPS tag. [ADL] feels that the tag has made him feel like a criminal. He has found the tag has reminded him of his past experience of trauma. In my opinion having a GPS tag attached his leg has reminded him of when he was detained and tortured within Sudan and of being detained, controlled and forced into unpaid labour in Libya. He has also found the tag to feel uncomfortable and has become distressed when the tag beeps. He is also fearful that the tag will run out of charge and he will incur battery breaches and potentially risk being redetained or removed to Rwanda due to failures with the GPS tag.”

“However, Dr Galappathie’s medical evidence does also make reference to an improvement in some of your client’s symptoms since his release from detention. Dr Galappathie states that “the acute symptoms of his condition appear to have reduced such as a reduction in suicidal thoughts and nightmares”

“Whilst he had thoughts about self-harm and suicide when I previously assessed him, his thoughts about self-harm and suicide have increased during the last week which appears secondary in his mental health caused by his continued distress due to having a GPS tag.”

“In light of the issues with providing your client an opportunity to make representations, we will vary your client’s bail conditions such as to remove the EM condition.”

“This means that under law the Secretary of State must introduce electronic monitoring to maintain contact with individuals granted immigration bail who are subject to a Deportation Order or deportation proceedings, unless either it is not practical to do so, or it would be in breach of your rights (“convention rights”) under the European Convention of Human Rights (ECHR).”

“. We seek to highlight at the outset that our client requires urgent release from immigration detention, as the ongoing decision to maintain detention is unlawful due to her extensive vulnerabilities as set out in our Letter before Action dated 7 July and 14 July 2022. Should the SSHD refuse to withdraw the EM condition, our client is willing to accept this as a temporary condition of her release.”

“I explained because her Legal reps had objected to Electronic monitoring, this needed considering, and there was no timescale as to when this would be decided. [PER] said her solicitor had contacted her this morning, but she was not aware that her solicitor had raised objections to her being electronically monitored. She rang her solicitors to ask that they remove the objection as she just wants to be released, and is ok with having a device fitted. …”

“Our client instructs that she wishes for these representations regarding electronic monitoring to be withdrawn, provided she is released from detention without further delay. While we maintain the grounds set out in our presentations, we submit that our client’s ongoing detention is having a more detrimental impact on her than release with an EM condition would have.”

“We write to request an urgent update regarding our client’s bail matter. We confirmed on Friday, 15 July 2022 that our client seeks to withdraw her representations regarding electronic monitoring so that she may be released on SSHD bail without further delay. It is now 18 July 2022 and our client remains in detention although she has accepted electronic monitoring conditions and has an approved address for release. … Please ensure she is released on bail immediately or we will have no option but to issue an application for judicial review without further notice.”

“In my opinion, the GPS tag has caused an exacerbation of pre-existing psychiatric illness by way of depression, anxiety and PTSD such that she now suffers from severe depression, anxiety and PTSD. This would be indicated by her account of worsening depression, anxiety and PTSD symptoms. In addition, it is likely that having to wear GPS tag will have exacerbated her mental health symptoms due to a number of different factors.”

“The interference arising from GPS tracking is/was not in accordance with the law because, in breach of the requirements of the Immigration Act 2016 and/or the common law, the Defendant did not make any reasoned decision and/or give reasons for imposing the EM condition. …”

“In Pilot Scheme cases, the Defendant must also consider whether imposing an EM condition would be compatible with the proposed subject’s Convention rights (under the Pilot Scheme Guidance and section 6 of the Human Rights Act (“HRA 1998”)). Additionally, the Defendant must have regard to the statutory mandatory considerations set out in paragraph 3(2) of Schedule 10. Those matters include the likelihood of a person “failing to comply with a bail condition” or “committing an offence while on immigration bail”

“8. If a person subject to the Duty is being granted bail, they are given the opportunity to provide representations as to why they should not be subject to Electronic Monitoring in advance on their bail being approved. For this purpose the Bail 211 is issued which invites them to submit representations. Once the representations are received the decision maker will consider whether the representations indicate that the application of EM would no longer be appropriate. As there is an expectation that EM will be applied in line with the duty it is incumbent upon the service user to provide sufficient evidence to demonstrate that they meet the threshold for the duty to not be applied. The Immigration Bail Policy provides guidance on considering representations including if vulnerabilities are identified. Once the decision maker has considered any representations, they will provide a response to the service user on a Bail 215 confirming the decision. 9. In cases where no representations are received and there is no known vulnerability or exemption reason evident then it is incumbent on the SOS to apply the duty given the absence of identifiable reasons not to do so. … 10. Where EM is to be applied as part of the Expansion Pilot, the potential service user is informed of such and provided an opportunity to make representations, through the issuing of a Bail 211 form. Where representations are rejected, or none received, the service user is informed that they will be subject to EM under the terms of the pilot through the issuing of a Bail 214 form.”

“… if the ordinary procedures were followed in [ADL’s] case, there would have been consideration by a GPSEC caseworker of whether the exceptions applied even though no representations were received from him.” (2) In relation to PER, he said that he had spoken to Susan Quinn, who was a senior executive officer in the FNORC and had been in charge of the team who decided to grant immigration bail to PER. However, he did not say that she told him that consideration had been given in PER’s case to the question whether it would contrary to PER’s Convention rights to impose an EM condition. Instead, he said (emphasis added) that: “I am informed by Susan Quinn that, in [PER’s] case, FNORC had knowledge of some of [PER’s] medical conditions/vulnerabilities as these are what prompted the internal prompt for Secretary of State bail. They were aware of the fact that [PER] was assessed as Adult At Risk Level 2 and that she had a positive reasonable grounds NRM decision and had submitted a Rule 35 Claim, claiming to be a previous victim of torture. Since the caseworker went on to issue a Bail 211, I therefore assume that the caseworker did not believe any exemption thresholds were met on the material then available.”

“A prisoner’s right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond.”

“I accept without hesitation, and mention it only to avoid misunderstanding, that the law does not at present recognise a general duty to give reasons for an administrative decision.”

“29 It is firmly established that there is no general obligation to give reasons at common law, as confirmed by Lord Mustill in Ex p Doody [1994] 1 AC 531. However, the tendency increasingly is to require them rather than not. Indeed, almost 20 years ago, when giving judgment in Stefan v General Medical Council [1999] 1 WLR 1293, 1301, Lord Clyde observed: “There is certainly a strong argument for the view that what was once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions.” 30 In view of this, it may be more accurate to say that the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so.” “There is certainly a strong argument for the view that what was once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions.”

“[BNE’s] Electronic Monitoring will be subjected to review should substantial evidence be submitted stating why Electronic Monitoring is detrimental to his physical and/or mental health.”

“(1) The claim form must be filed – (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose.” (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose.”

“1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“… The Home Secretary had, so the majority held, infringed the rights of two men in reaching a decision to detain them pending deportation by reference to unpublished criteria inconsistent with her published criteria. Also by a majority, the court decided that the infringement had rendered their actual detention unlawful. It was obvious that the criteria by reference to which the Home Secretary decided whether initially to detain the men, and thereafter whether to continue to detain them, bore in principle, ie at least theoretically, on the decision to detain them even though, as the court also proceeded to find, they would nevertheless have fallen to be detained by reference to the published criteria. Lord Dyson JSC said, at para 68: “It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain.”

“the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result - which is not the same as saying that the result would have been different had there been no breach.”

“I do not accept the Court of Appeal’s view that the question is one of statutory construction. We are dealing in this case with what the Secretary of State agrees are public law duties which are not set out in the statute.”

“The question then is what is to be made of the Secretary of State’s public law duty to give effect to his published policy. In my opinion the answer to that question will always be fact-sensitive. …”

“62. The respondent submits that the authority of Kambadzi is of no assistance in resolving this issue. Firstly, that was a case which did not address the requirements of article 8 or the “in accordance with the law” criteria. In fact, it was a case concerned with the position at common law in respect of a claim for damages for false imprisonment or trespass to the person. The Supreme Court specifically did not address article 5 and the case was not, therefore, one about human rights. 63. We consider that there is force in the submissions made by the respondent about the case of Kambadzi. It does appear that that case was not only a case concerned with a common law right to damages and not human rights, but it also arose in a differing statutory context. However, in our view the applicant is on far firmer ground when making the further submissions based on the case of O and Malcolm.”

“PSO 4275 was a published policy to guide the exercise of prison officers’ discretion under rule 30 of the Prison Rules 1999. The prison officers at HMP Frankland failed to give effect to the mandatory requirements of PSO 4275 as regards the opportunity to be given to those in the segregation unit to spend a minimum of one hour in the open air. If they did not have good reason for that failure, I have little doubt that in a public law challenge they would be found to have acted unlawfully. One does not need to look further than the passages in R (Lumba) v Secretary of State for the Home Department cited by Miss Kaufmann for the proposition that a decision-maker must follow his published policy unless there are good reasons for not doing so; a proposition that applies equally to a policy published by the Secretary of State for the guidance of those exercising powers under rules made by him … When determining whether an interference is “in accordance with the law”, even the Strasbourg court looks at domestic law (see, for example, Eriksson v Sweden (1989) 12 EHRR 183 at [62]-[63]); a fortiori the national court must look at domestic law when deciding whether the requirement is satisfied; and I can see no possible basis for contending that the principles of public law do not form part of domestic law for this purpose.”

“Thus, the process of regular reviews is an integral part of the lawful administration of an electronic monitoring condition and, as has been set out above, a key feature of concluding that in principle the regime fulfils the requirements of accessibility and foreseeability so as to meet the “in accordance with the law” standard. Failure to comply with these integral elements of the legal framework by failing to review the circumstances in which an electronic monitoring condition has been imposed on a regular basis therefore clearly undermines the legality of continuing to impose such a condition. For the reasons given in the case of O, 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. …”

“A further route to the same conclusion arises from the well-established proposition that a decision-maker must apply a relevant policy they have established when making a decision to which the policy applies unless there are clear reasons for departing from it. This proposition can be seen at work in the case of Malcolm, and finds expression in high authority in the Supreme Court case of Mandalia v Secretary of State for the Home Department [2015] 1 WLR 4546; [2015] UKSC 59 at paragraphs 29 to 31. In the present case the requirements of the policy were not met either as to the regularity of the reviews or the reviews being conducted lawfully. The respondent has not identified any reason, let alone a good reason, why that policy was not adhered to in the applicant’s case. It follows that this amounts to a public law error on the part of the respondent and one 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”, albeit the same observations in relation to relief set out above remain pertinent. …”

“113. As long ago as 1984, the court said in Malone v United Kingdom EHRR 14, in the context of surveillance measures, that the phrase “in accordance with the law” implies that “the law must . . . give the individual adequate protection against arbitrary interference”: para 68. In Kopp v Switzerland (1998) 27 EHRR 91, para 72, it stated that since the surveillance constituted a serious interference with private life and correspondence, it must be based on a “law” that was particularly precise: “It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated.”

“There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes.”

“I see nothing wrong with that. But the circumstances in which discretions are exercised vary enormously and that passage cannot be applied literally in every case. The general rule is that anyone who has to exercise a statutory discretion must not “shut his ears to an application” (to adapt from Bankes L.J. on p. 183). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say—of course I do not mean to say that there need be an oral hearing. …”

“To date, the only cases in which data has been deleted prior to 6 years are cases where the Defendant has concluded that there was some unlawfulness in the imposition of EM (as in the cases of ADL and (in part) Mr Dos Reis). The Defendant does not presently envisage other circumstances in which a request to delete trail data prior to 6 years would be acceded to.”

“The difficulty arises, I think, because it is not always appreciated that in this area two principles come into conflict. An authority with the broad discretions created under s 81 of the 1944 Act and s 6(1) of the 1953 Act would be acting arbitrarily if it decided one case after another with no discernible rationale or consistency as between applicants. It is to enable a public authority to guard against such arbitrariness that the law recognises the wisdom and acceptability of having a policy for the exercise of administrative discretions, especially those which involve the disbursement of public funds in favour of individuals. But public law is also jealous to guard the discretion which a permissive power carries with it, and discretion is negated if an inflexible rule is adopted for the exercise of the power. This is why British Oxygen Company v Minister of Technology lays down principles which permit, and indeed encourage, the adoption of a policy but forbid the decision-maker to allow the policy to ossify. This had happened in R v Hampshire Education Authority ex parte J because the two exceptions, being in themselves rigid and exclusive, were simply subsets of a rigid rule. What is required by the law is that, without falling into arbitrariness decision-makers must remember that a policy is a means of securing a consistent approach to individual cases, each of which is likely to differ from others. Each case must be considered, therefore in the light of the policy but not so that the policy automatically determines the outcome.”