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Privacy International has filed complaints with the Information Commissioner’s Office (ICO) and the Forensic Science Regulator (FSR) over the Home Office’s use of GPS tags to monitor migrants released on immigration bail.
The campaign group argues that the Home Office’s introduction of GPS ankle tags to monitor and record the movements of migrants awaiting a decision on their immigration status represents a “seismic” change in the surveillance and control of migrants in the UK.
According to a complaint filed with the ICO, the Home Office’s Electronic Monitoring Service (EMS) allows the government to collect highly intrusive data about migrants without complying with the safeguards required by UK data protection laws.
Although the Home Office has a code of practice containing safeguards for people who are being tagged when released from prison on probation, there is no such code of practice for migrants.
The Home Office has granted itself broad and sweeping powers through its own policy to access an individual’s entire location history and share it with law enforcement – without sufficient safeguards and judicial oversight, Privacy International claims.
The Home Office monitors migrants in the UK through the Electronic Monitoring Service (see box), run by Capita under a contract with the Ministry of Justice. The service uses GPS ankle tags to monitor migrants’ location 24 hours a day, generating a large volume of historic “trail data” which is stored for six years.
The Immigration Act 2016 makes it mandatory for foreign national offenders to be subject to electronic monitoring when released on immigration bail. But anyone subject to immigration control, including asylum seekers, can be subject to indefinite tagging during the course of their asylum application.
The data provides a deep insight into the intimate details of people’s lives, revealing a comprehensive picture of their everyday habits, movements, hobbies, social relations, health concerns, and political and religious views, according to the complaint.
Surveillance and control
Privacy International argues in its complaint to the Information Commissioner’s Office that GPS tags enable a level of monitoring that goes far beyond the scope allowed for in legislation.
Monitoring the movements of individuals who are subject to an evening curfew for 24 hours a day represents a level of surveillance and control that goes beyond the need to ensure they meet their bail conditions, it says.
The complaint argues that the Home Office’s ability to review the complete record of an individual’s “trail data” whenever a breach is detected is disproportionate, and says the Home Office has not demonstrated how processing of special categories of data, such as information which shows people’s religious beliefs, health or sexuality, is necessary or in the public interest, it says.
The complaint argues that it is unlawful for the Home Office to use migrants’ “trail data” to support or rebut claims made by individuals about their family ties in the UK, and that the practice is an abuse of powers conferred by the Immigration Act 2016 and has the potential to violate individuals’ rights to privacy, freedom of expression and freedom of association.
The introduction of a mandatory duty to impose electronic monitoring on people selected for deportation is contrary to the principles of public law and has effectively removed judicial discretion and oversight, it says.
There has been no real attempt to justify that real-time monitoring of specific individuals is necessary and proportionate.
Lack of transparency
The Home Office does not provide individuals or their legal advisors with clear information about what data will be processed and how it will be used.
Individuals are frequently unaware what the requirements of their immigration bail conditions are, or what could trigger a breach.
One person, for example, was told they had to sleep at home but was unclear whether that meant they had to be home by a certain time.
“There’s so much vagueness around it all,” the person said. “What does sleep at my premises mean? Can I get home at 4am and then sleep to 8 or 9 or 10? … Where’s the line?”
Others said they were told they had breached their bail conditions because they had not been at home when they were visited by an official, even though there were no conditions in their bail preventing them leaving their home.
Individuals were not offered explanations why devices were attached to their ankles and why they were placed under curfew. They were told that breaking the monitoring conditions or tampering with the device could result in arrest or a negative decision on their immigration cases.
Poor accuracy of GPS
The potential for the Home Office to review historic data on individuals’ movements places a heavy burden on them to recall events which could go back months or years. It also takes no account of the lack of accuracy of GPS tags, which can sometimes be out by tens or hundreds of metres, the complaint says.
Research by Privacy International shows that the tags do not work on the London Underground, or in areas where there is poor satellite visibility or a poor phone signal. In circumstances where loss of contact for more than 15 minutes can trigger a breach alert, triggering a full review of trail data, this can lead to wrongful accusations. Evidence from migrant organisations shows that GPS tags have poor battery life and have to be recharged multiple times a day.
Home Office policies and impact assessments do not acknowledge these accuracy issues or provide guidance to mitigate them or guard against abuse.
Privacy International argues that the practice of retaining location records of migrants for six years is difficult to reconcile with gathering data for “live monitoring” to detect bail breaches. A more proportionate approach would entail, for example, retaining data for three months, then deleting it if no breaches have taken place.
Privacy International said it was also concerned that no serious and systematic consideration has been given to the sensitivity of the data processed, claiming that no thought appears to have been given to limiting the number of individuals with access to the data and their levels of security clearance.
Less intrusive measures of surveillance, such as radio frequency tags, have been used successfully, making it difficult to justify higher levels of surveillance using GPS tags. In 2020, for example, only 1% of people released from immigration detention tried to abscond.
Mental and social impact
The complaint argues that tracking individuals’ every movement can have a chilling effect, by leading them to avoid any “controversial” or “fringe” activities in case that might impact their bail conditions.
Migrants said the use of tags had discouraged them from learning English or taking part in sports.
“It’s not comfortable when I go out,” said one migrant. “If it runs out of battery, I will break the law. I stay at home all the time. Sometimes I just go to buy food, not anywhere else. I don’t want people to see the tag and it’s not comfortable. But I have no choice.”
Individuals fleeing persecution with lives marked by trauma can be subject to mental distress and re-traumatisation by having to wear GPS tags, the report claims.
Migrants say they feel anxious that the tag’s batteries may run out when they are away from a charge point, and they worry about the implications their movements will have on their immigration applications.
“These adverse effects are entirely disproportionate to the aim pursued, which is to monitor compliance with bail conditions by individuals who are seeking a stable immigration status and rebuilding of their lives in a new country,” the complaint states.
Complaint to Forensic Science Regulator
In a parallel complaint to Gary Pugh, the Forensic Science Regulator, Privacy International says there is a disparity between the level of safeguards used for tags for probation and for those used for immigration.
Migrants who make human rights claims to the Home Office effectively grant the state access to highly sensitive geolocation data simply because it “may be relevant” to their claim, it says.
But in the criminal justice system, electronic monitoring data must only be “processed for specified, explicit and legitimate purposes”.
Camilla Graham Wood, Privacy International,
A report by the National Audit Office in January 2020 referred to obsolescent technology, unsupported operating systems, missing system updates, and outdated software and hardware. It said there was a lack of standardisation in data entry, which led to a higher likelihood of error and poor-quality data.
A report by the Independent Chief Inspector of Borders and Immigration (ICBI) found that staff relied on Excel spreadsheets they had created themselves and information from the Home Office IT systems, which they told inspectors they did not trust.
Privacy International wrote in its complaint to the Forensic Science Regulator that there was an “urgent need for an examination of the significant issues” raised by GPS monitoring following the home secretary’s decision to expand the scheme to people arriving in the UK seeking asylum.
Camilla Graham Wood, research director at Privacy International, said it was unacceptable that individuals could lose their liberty or face prosecution because of technical issues with GPS tags or poor-quality data.
“As the Home Office continues to embrace data-intensive systems, we must not only question whether it is necessary and proportionate to gather such data, but also ensure the data itself is forensically sound. It is for these reasons that we urge the FSR to investigate,” she said.
Migrants ‘treated like animals’
Rudy Schulkind, research and policy coordinator at the charity Bail for Immigration Detainees, said GPS-fitted ankle tags have had a disastrous impact on people’s mental and physical health, and family relationships.
“They report feeling depressed, ashamed and stigmatised, and many have told us that they are being treated like animals,” he said. “The experience of being constantly watched through 24/7 surveillance is particularly traumatising for people who are already particularly vulnerable including survivors of torture or modern slavery, and many of those we’ve spoken to have experienced a deterioration in their mental health as a result of this intrusive form of surveillance.”
Lucie Audibert, a lawyer at Privacy International, said the Home Office’s use of tagging was dehumanising, expensive and un-necessary.
“Their disregard for data protection and human rights laws is shocking. It’s time for regulators to use their investigatory and enforcement powers to put an end to this harmful policy, sadly just one of the myriad callous facets of the UK hostile environment,” she added.
Some 1,650 people were subject to an electronic monitoring condition between August 2021 and March 2022, according to Home Office figures.