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Data Commissioner Rules UK’s GPS Monitoring of Migrants is Illegal

A UK Home Office pilot program that used GPS monitoring of migrants is a violation of the UK’s data protection law, according to a Friday ruling from the UK Information Commissioner’s Office (ICO).

“The ICO found the Home Office failed to sufficiently assess the privacy intrusion of continuous collection of people’s location information,” according to an ICO press release on the decision. “Tracking people is highly intrusive and organizations planning to do this must be able to provide a strong justification for doing so.”

Müge Fazlioglu, principal researcher—privacy law and policy—for the International Association of Privacy Professionals (IAPP), says the ruling sends an important message to national security and immigration authorities that privacy rights extend to all members of society—especially the most vulnerable ones.

“To engage in the most intrusive types of surveillance, like 24/7 location tracking, governments must be able to explain why it is necessary and that its aims cannot be fulfilled by less privacy-invasive means,” Fazlioglu says. “The ruling also underscores why privacy and data protection risk assessments, which are the building blocks of privacy law compliance, shouldn’t merely be a box-ticking exercise and are critical across both the private and public sectors.”

The Pilot Program

The UK has sought new methods to address the number of migrants entering the UK without permission, increasingly by small boat. In the third quarter of 2022, for instance, more than 20,000 migrants arrived at the UK border by small boat.

The Home Office initiated a pilot program that used ankle tags equipped with GPS tracking to continuously monitor the location of approximately 600 migrants who had arrived in the UK, claimed asylum, and were on immigration bail. The program was designed to see if electronic monitoring was an effective way to maintain regular contact with the migrants, reduce the risk of absconding, and determine if GPS monitoring was an effective alternative to detention.

Children (those under 18), pregnant women from week 18 of their pregnancy to three months postpartum, and individuals detained under the Mental Health Act 1983 with supervision orders were not eligible for the pilot program.

Privacy International, a UK-based charity that promotes privacy rights, raised concerns about the pilot program to the ICO, which began assessing it in August 2022. The Home Office discontinued the pilot program in December 2023 but has retained the data that was collected under the program.

On 1 March 2024, the ICO ruled that the Home Office “failed to assess the potential impact” of the program on people who were already vulnerable because of their immigration status and “did not sufficiently consider” the measures that should be in place to mitigate those risks, such as clearly explaining to the individuals being tracked how and why their data was being collected.

“Having access to a person’s 24/7 movements is highly intrusive, as it is likely to reveal a lot of information about them, including the potential to infer sensitive information such as their religion, sexuality, or health status,” said UK Information Commissioner John Edwards in a statement. “Lack of clarity on how this information will be used can also inadvertently inhibit people’s movements and freedom to take part in day-to-day activities.”

Along with failures to communicate with the individuals being tracked, the ICO also assessed that the Home Office failed to explain to data regulators why it was necessary to collect, access, and use the individuals’ geolocation data as well as if the Home Office had considered alternatives to GPS monitoring of migrants.

“This action is a warning to any organization planning to monitor people electronically—you must be able to prove the necessity and proportionality of tracking people’s movements, taking into consideration people’s vulnerabilities and how such processing could put them at risk of further harm,” Edwards said. “This must be done from the outset, not as an afterthought.”

Privacy International called the ICO’s decision a “significant, systemic, and unprecedented blow” to the Home Office’s pilot program.

“The ICO’s decision is a powerful reminder that migrants have the same data protection rights as everyone else, and that immigration authorities are not above the law,” according to a press release. “Data protection legal safeguards are not provided to people based on their citizenship status, but based on whose jurisdiction they are under.

“Immigration authorities in the UK and elsewhere have for far too long, and exponentially in recent years, been abusing migrants’ privacy in a bid to exercise performative power and control over a vulnerable population,” Privacy International added. “This clearly shows how privacy and data protection laws can be a powerful tool in the protection and defense of migrants’ rights.”

The Home Office has not issued a statement on the ICO’s decision, but in a separate press release published on 23 February Home Secretary James Cleverly announced a new agreement with Frontex—the European Border and Coast Guard Agency—to collaborate on new research and technologies to protect borders. These measures will include building on the UK’s deployment of drones and airborne surveillance measures to “tackle illegal migration,” the release said.

Beyond the UK

The UK is not the only country that has used GPS monitoring to track migrants. In April 2023, the U.S. Immigration and Customs Enforcement (ICE) agency began testing wrist-worn GPS monitors as an alternative to detention (ATD) on adult non-citizens. ICE said that using the ATD measures increased court appearance rates, compliance with release, and participation with immigration obligations.

ICE uses ATD measures to monitor more than 190,000 migrants as of December 2023, according to research by three students with the Immigration Clinic at the University of Texas School of Law, published in January 2024 by the American Bar Association Commission on Immigration. Authors Muskan Momin, Alice Min, and Niko Marcich found that ICE’s electronic monitoring methods are an expansion of detention that is not justified.

For instance, the authors wrote that ICE detains migrants that are deemed to “present low risk or no risk to public safety” in immigration detention facilities. “If electronic monitoring were a true alternative to detention, these migrants would be released on monitoring or with no conditions at all given their low risk level as well as the high appearance rates for non-detained migrants…”

The authors further assessed that the widespread misuse of monitoring may violate constitutional standards that guarantee migrants liberty and rights to due process.

“As employed, electronic monitoring of migrants is punitive in nature because it is imposed without objective assessment of either need or risk in a one-size-fits-all approach,” according to their research. “Indeed, the current, and increasingly widespread, misuse of monitoring may violate constitutional standards guaranteeing liberty and due process.”

In separate research by Sarah Sherman Stokes, a Boston University School of Law clinical associate professor of law, that was published in the Colorado Law Review on 12 January 2024, the author explained that electronic monitoring also takes a profound toll on individuals who are subject to it. In her research, she found that 90 percent of 150 surveyed migrants said they suffered physical harm from monitoring devices along with mental health ramifications.

“The ripple effects of shackling were also well documented, including significant financial hardship, loss of employment, and creating obstacles among caretakers for family or community members,” Sherman Stokes wrote.