New Clause 53 - Electronic monitoring: conditions and use of data

Nationality and Borders Bill – in a Public Bill Committee at 4:30 pm on 4th November 2021.

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“(1) Schedule 10 to the Immigration Act 2016 is amended as follows.

(2) In paragraph 2, in sub-paragraph (3)(a), leave out ‘must’ and insert ‘may’.

(3) In paragraph 2, in sub-paragraph (3)(b), leave out ‘by virtue of sub-paragraph (5) or (7)’.

(4) In paragraph 2, after sub-paragraph (3) insert—

‘(3A) If immigration bail is granted to a person subject to an electronic monitoring condition, the electronic monitoring condition shall cease to apply on the day six months after the day on which immigration bail was granted to the person, unless sub-paragraph (3B) applies.

(3B) This sub-paragraph applies if the Secretary of State or the First-tier Tribunal (as the case may be), when granting immigration bail to the person, has directed that the electronic monitoring condition shall not cease to apply in accordance with sub-paragraph (3A).

(3C) But the Secretary of State or the First-tier Tribunal (as the case may be) shall not make a direction under sub-paragraph (3B) unless the Secretary of State or the First-tier Tribunal (as the case may be) is satisfied that there are very exceptional circumstances which make the continued application of the electronic monitoring condition necessary in the interests of—

(a) public protection; or

(b) national security.’

(5) In paragraph 2, after sub-paragraph (7) insert—

‘(7A) Sub-paragraph (3)(a) does not apply to a person who is granted immigration bail by the First-tier Tribunal if the Tribunal considers that to impose an electronic monitoring condition on the person would be—

(a) impractical, or

(b) contrary to the person’s Convention rights.

(7B) Where sub-paragraph (7) or (7A) applies, the First-tier Tribunal must not grant immigration bail to the person subject to an electronic monitoring condition.’

(6) In paragraph 4, after sub-paragraph (2) insert—

‘(2A) The Secretary of State must not process any data collected by a device within the meaning of sub-paragraph (2) which relates to the matters in sub-paragraph (1)(a) to (c) except for the purpose of, and to the minimum extent reasonably necessary for, determining whether P has breached a condition of his bail.

(2B) In sub-paragraph (2A), “processing” has the same meaning as in section 3(4) of the Data Protection Act 2018.’”

This new clause would place certain safeguards and restrictions on use of electronic monitoring.

Brought up, and read the First time.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I beg to move, That the clause be read a Second time.

New clause 53 is really just to probe the Government on a new issue that has started to arise this year: the significant increase in the use of the GPS monitoring of certain people on bail for immigration purposes, largely foreign national offenders awaiting deportation. I am not for a moment suggesting that such monitoring does not have its role. It absolutely does; indeed, there would be occasions on which I would be upset with the Home Office if it did not use it. There is a genuine concern, however, about the lack of safeguards and limits on its use, and on how data from GPS tracking is being used. Indeed, even compared to the criminal justice system, it seems that the safeguards and limits are somewhat light touch. Cases have arisen where it seems that use was totally inappropriate.

New clause 53 suggests putting in place some appropriate safeguards and restrictions. It is designed to prompt the Minister, if not today then in due course, to answer certain questions. First and foremost, how will data be used in practice and in what circumstances will it be used in relation to somebody’s article 8 claim? That is an area of controversy, in that the use of tracking goes way beyond the original intention in previous relevant legislation, which was to prevent people from absconding.

Secondly, the criminal justice system imposes strict limits and safeguards on how long electronic monitoring is used for and in what circumstances, with limits on collection, processing, storage and use of data. Why, therefore, are those electronic monitoring safeguards absent in the immigration system?

Thirdly, why have the Government not made the data protection and equality impact assessment for such an intrusive scheme available to the public? Fourthly, what guarantee can the Government give that they will not expand their use of this technology and use it on people who have come to the United Kingdom to seek asylum? Can the Minister give us assurances on that today?

Finally, the Government’s own data suggests that absconding rates are exceptionally low. A recent FOI response found that of people granted bail between February 2020 and March 2021, there were 43 cases of absconding out of 7,000, so what evidence does the Home Office have that this intrusive measure is really necessary on anything other than a very limited scale?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Our immigration system must encourage compliance with immigration rules and protect the public. Electronic monitoring of foreign national offenders using satellite tracking devices was a Government manifesto commitment, which the public voted for, and the measure which enacts it was passed into primary legislation under the Immigration Act 2016. It has already been subject to parliamentary scrutiny and debate during the passage of the 2016 Act.

Electronic monitoring is a condition of immigration bail. During the debate on the Immigration Act 2016, it was open to Parliament to set a limit on how long a person can be made subject to electronic monitoring, but it chose not to do so. However, I want to be clear that a person’s electronic monitoring conditions are already automatically reviewed on a quarterly basis as a minimum. Compliance with bail conditions, including electronic monitoring, will be a major factor in deciding whether it will remain a condition of that person’s bail. Any representations regarding the person’s electronic monitoring conditions or a breach of those conditions will also generate a review.

Prior to being placed on electronic monitoring when released, a person is given an opportunity to advise the Department as to why electronic monitoring may not be appropriate for them. That includes where there is strong evidence to suggest that an electronic monitoring condition would cause serious harm to the person’s health. A person can also make representations at any point while wearing a tag and those representations will be considered promptly.

Currently, there is a duty on the Secretary of State to consider electronic monitoring for those who are subject to a deportation order or deportation proceedings, known as “the duty”. The proposed clause makes the consideration of imposing an electronic monitoring condition discretionary. However, there is already a caveat within current legislation that electronic monitoring will not be applied to a person who is subject to the duty where its imposition would be impractical or contrary to the person’s convention rights. The proposal to remove the compulsory consideration of electronic monitoring for all those subject to the duty could lead to a scenario where serious offenders who should be electronically monitored are not considered for electronic monitoring and are granted bail without that condition.

I turn to the new clause’s reference to the use of data. Any data that is gathered from the devices will be processed automatically and will not be routinely monitored by the Department. We have undertaken a data protection impact assessment in relation to the introduction of GPS tagging, which sets out the specific permitted circumstances where data can be accessed, and any access outside those circumstances is considered a data breach. Those who are subject to electronic monitoring are made aware of the circumstances as to when their data can be accessed during the induction process.

Restricting the data in the way the new clause sets out will impact on the ability to use data to try to locate a person after it has been identified that they have breached their immigration bail conditions and are viewed as an absconder. The inability to share data with other law enforcement agencies where a lawful request had been made would be out of alignment with the agreement on sharing data for the purposes of preventing or solving crime. In the broadest terms, only knowing that a person had breached their bail conditions and not being able to use the data for any other purpose would greatly limit the efficacy of electronic monitoring.

I do not consider that the new clause would have the effect that hon. Members intend. Rather, it would impair our ability to monitor and deport those who had committed crimes and were not entitled to remain in the UK. Foreign criminals should be in no doubt of our determination to deport them. We make no apology for keeping the public safe and clamping down on those who have no right to be in the UK.

In summary, the restriction of the use of electronic monitoring as proposed in new clause 53 would significantly impair our ability efficiently to remove foreign national offenders who have no right to be here. I am conscious that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East raised a number of questions at the outset. I have covered quite a lot of ground, but if there are any matters that he feels I have not addressed and he would like to follow up, I of course invite him to please do so.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I am grateful to the Minister for that response. I will have a look through everything that has been said and consider whether any follow-up is necessary. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.