UK Justice and Home Affairs Committee publishes report on electronic monitoring

The practice has come under legal scrutiny due to the lacking regulartory environment it operates in, with the ICO and multiple UK courts issuing findings against GPS tagging in immigration contexts.

In addition to our ethical and legal concerns with tagging, the practice is ineffective at its stated purpose of reducing absconding and maintaining contact with migrants released on immigration bail.

What did the Committee say

In its report, the Justice and Home Affairs Committee was especially concerned about the ineffective nature of electronic monitoring in immigration contexts, and the complete lack of evidence in support of the practice. It found that the (below listed) harms associated with electronic monitoring could could be dispoportionate, especially because the Immigration Bail Guidance and Immigration Act 2016 currently require that everyone released on immigration bail must be tagged, with only narrow exceptions.

The Committee wrote: “While we acknowledge that there is currently a statutory obligation to impose EM, a duty with no basis in evidence poses legal, ethical, and practical challenges.”

In our submission, PI presented the following concerns about electronic monitoring to the Committee:

Negative effects to tagged individuals: electronic monitoring can severely impact the wellbeing of individuals and those around them. After surveying wearers of GPS Tags, Bail for Immigration Detainees found that they experience anxiety, stress, and pain; have increased feelings of social stigma and avoid public spaces and activities; and that GPS tags affect every aspect of their daily lives, including the abilities to exercise, sleep, work, and care for children. GPS tagging resulted in re-traumatization, and impeded recovery from existing physical and mental health conditions.

A lack of informed consent: Before tags are placed, individuals are asked to consent to EM, but they are not provided with crucial information including: that the tag may be fitted indefinitely, that personal locational data is being collected, and that the government might access and use that data against them. Most individuals are faced with the choice between ‘consenting’ to the tag, or remaining in prison. After they are fitted, many individuals fear that exercising their rights to challenge the tag might result in re-imprisonment.

Privacy and Data Security: GPS tagging is highly intrusive and allows the Home Office to record someone’s movement 24 hours a day. This data, called “trail data” is immense, resulting in thousands of pages of data for every individual. The data provides deep insight into an individual’s habits, hobbies, social relationships, political and religious affiliations, and health concerns. PI submits that trail data amounts to “special category” data as defined by Article 9(1) of UK GDPR, requiring the Home Office to exercise heightened protection. Although the Home Office does not have direct access to the trail data collected by GPS tags, it can access it when a breach of bail conditions occurs - which can be something as small as a a dead battery in the GPS tag - or when someone requests that their requirement to wear the tag be reconsidered under the European Convention on Human Rights.

Further, this highly sensitive data may not be stored properly and there are insufficient safeguards protecting it - those laid out in the Home Office’s 2021 Data Protection Impact Assessment (DPIA) fall far short of both regulations in criminal justice contexts, and the Council of Europe Recommendations to member states on electronic monitoring.

The Committee found that these negative impacts are proportionate to the aims of electronic monitoring in criminal justice contexts, but it did not extend this finding to immigration contexts, writing: “There is a lack of publicly available data and evidence to support its effective use in this context, so we continue to be unconvinced that the Home Office’s use of EM as a means for managing immigration is proportionate.”

Alltogether, the Committee’s report highlights an issue at the heart of the Home Office’s GPS tagging program: It is employing the same technology, being administered by the same companies in the same exact way to two different groups of people for two different stated aims: in criminal justice contexts, as a punishment and/or deterrent, and in immigration contexts, to monitor and maintain contact with individuals. But the Home Office should consider that these two different goals require two different approaches, and come with two different sets of legal and ethical issues.

Our additional concerns 

In addition to these concerns surrounding proportionality, PI’s submission to the Committee addressed:

Automation without adequate supervision: An emerging concern is the use of algorithmic tools in the context of electronic monitoring in immigration. It appears that the Home Office has been using an automated recommendation tool, called the Electronic Monitoring Review Tool (EMRT) in the context of quarterly electronic monitoring reviews. It determines first, via an automated harm score, the minimum period an individual will remain subject to electronic monitoring, and whether an individual should remain subject to an ankle tag or be transitioned to a non-fitted tag. The use of EMRT as a recommendation-making tool only allows a case worker to accept or reject a decision, but not participate in its making. Therefore, it appears that the HO is outsourcing complex decisions with immediate, life-altering implications for migrants, including children, to an opaque tool, and this is why we raised our concerns about the EMRT with the UK data protection authority, the Information Commissioners’s Office (the ICO).

Although the Committee did not consider automation in its report, its request that the Home Office reconsider the proportionality of electronic monitoring in immigration should necessicitate a reconsideration of the decision making process surrounding the practice, including the use of automation.

Procurement: Privacy International maintains longstanding concernsabout public-private partnerships, which open the door to human rights abuses without government oversight. In the GPS tagging context, Privacy International has been working with the Shareholders Show Up Coalition to learn more about Serco, one of the third-party companies contracted to carry out GPS tagging, and their compliance with their data protection and human rights obligations. We believe that Serco has not upheld its human rights commitments, and the company has thus far failed to share their human rights and data protection impact assessments on GPS tagging with the Sharholders Show Up Coaltion.

The Committee was especially concerned with the procurement process resulting in Serco and Allied Universal Electronic Monitoring (AUEM, formerly G4S) being selected to deliver the electronic monitoring program, given that both companies were previously subject to multi-million pound fines for serious fraud associated with electronic monitoring contracts with the UK government. They wrote: “The Committee is astonished that new contracts were awarded to G4S (now AUEM) and SERCO after they were both found by internal departmental investigation and the Serious Fraud Office to have been “dishonestly” misleading the Government while providing EM services. Having both admitted fraud and paying multi-million-pound fines, we are unable to understand why there was no legal means to prevent them from bidding for renewed EM contracts. The performance to date of the private sector in providing EM services has been dire and does not inspire confidence for future performance.”

We echo these findings, which the Committee extended to both the immigration and criminal justice contexts. The government has an obligation under international law to ensure that third parties, including the private sector, comply with human rights obligations. The Home Office and companies it contracts with must apply principles outlined in UK GDPR, such as transparency, legality, necessity and proportionality, accountability, oversight, redress and proper procurement standards and procedures.

We maintain that GPS tagging is an inhumane practice that should never be used in immigration contexts.

We will continue monitoring government tagging of migrants - for more information, consider joining Privacy International’s mailing list.