Court finds that the Home Office’s imposition of a GPS tag was unlawful for over a year in the first case of its kind

Wilson Solicitors LLP acts for Mark Nelson, a car mechanic and father of five, who has been subjected to 24/7 surveillance by way of a GPS ankle tag by the Home Office for almost 22 months.  

Mark 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 (‘ECHR’). Mark 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. 

As there have been no other court judgments on this policy yet, the Home Office has to date 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. 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’s findings follow the recent decision by the Information Commissioner's Office (‘the ICO’ - the UK’s data protection regulator) on the Home Office’s use of people’s data under its pilot GPS tagging scheme. The ICO issued a formal warning that ‘any future processing by the Home Office on the same basis will be in breach of data protection law and will attract enforcement action.’ 

However, the court found that wearing the tag at the time of the hearing was proportionate and Mark continues to be tagged. Since this is the first case assessing the proportionality of this intrusive technology, given the large number of people this issue affects and given the ongoing impact of the tag on Mark, Mark intends to apply for permission to appeal to the Court of Appeal on this point.

Mark says:

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. 

Katie Schwarzmann, Mark’s solicitor, says:

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. 

The judgement is available here. Mark is represented by Katie Schwarzmann of Wilson Solicitors LLP, Donnchadh Greene of Doughty Street Chambers and Sarah Hannett KC of Matrix Chambers. Evidence relating to the functionality of GPS tags was provided by Privacy International.  

Wilson Solicitors LLP represents a number of individuals challenging the Home Office’s imposition of GPS tags on them. 

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