Guidance

Equality impact assessment: partial commencement of the electronic monitoring duty

Updated 18 March 2024

Demonstrating compliance with the Public Sector Equality Duty (PSED)

Due regard must be shown:

• Decision-makers must be made aware of their duty to have ‘due regard’ and to the aims of the duty

• Due regard is fulfilled before and at the time a particular policy or operational activity, that will or might affect people with protected characteristics is under consideration, as well as at the time a decision is taken. It is not a box ticking exercise.

• Due regard involves a conscious approach and state of mind. The duty must be exercised with rigour and an open mind.

• The duty cannot be delegated to another body and will always remain on the body subject to it.

• The duty is a continuing one.

• It is good practice for the public body to keep an adequate record showing that they have considered their equality duties and considered relevant questions.

1. Name and outline of policy proposal, guidance or operational activity

The use of electronic monitoring as a condition of immigration bail has been included in immigration legislation since 2004. It is contained in Paragraph 2 (1) (e) of Schedule 10 to the Immigration Act 2016 and use of electronic monitoring is directed by immigration bail policy.

Paragraph 2 (3) of Schedule 10 to the Immigration Act 2016 introduced a duty on the Secretary of State to electronically monitor those who are subject to a deportation order or deportation proceedings. This is in response to manifesto commitments made by the current Government in 2015 and 2017 to satellite track all foreign national offenders subject to deportation order or deportation proceedings.

The equality impact of the use of electronic monitoring can be addressed in 2 parts firstly the device type and the fitting of the device and secondly the policy for the partial commencement of the duty for use of the device. This assessment addresses the second of these.

The aforementioned duty is to be implemented partially in 3 stages. We have considered whether the partial commencement of the duty could constitute conduct prohibited by the Equality Act.

It is proposed to implement the introduction of the legislation in 3 stages:

• 31 August 2021: those released onto bail in England and Wales from that date forward

• 31 January 2022: in England and Wales only to those on immigration bail since 30 August 2021 or earlier

• Spring/summer 2022: to extend to Scotland and Northern Ireland commencing in England and Wales only

Partial commencement of legislation in the Immigration Act 2016 Schedule 10 part 1 paragraphs 2 (2) and 2(3) will limit the use of a duty to employ electronic monitoring to England and Wales only in the first instance. This commencement will have a delayed retrospective impact. The technology to be employed will rely on GPS technology in line with Government manifesto commitments.

This replicates the current use of electronic monitoring in England and Wales only, but whereas the use of electronic monitoring is currently applied on a case by case basis, from the 31 August 2021 the duty will require that it be used in specified circumstances. This partial commencement means that those resident in Scotland and Northern Ireland will initially not be subject to the same level of immigration control as those within England and Wales.

Delayed commencement of retrospective application of the duty

In addition, for England and Wales there will be a delayed commencement for those already subject to immigration bail on 31 January 2022. This is to assist the gradual roll out of the service, provide the opportunity to continuously improve the experience for all users of the service and to manage any legal challenges regarding the expansion of the use of electronic monitoring.

A person resident in England or Wales with a similar or lesser offending history as a person in Scotland or Northern Ireland may argue that they are being discriminated against. They may argue that immigration is a reserved right and that the duty should only be imposed if it can be commenced across the whole of the UK.

The Home Office employs the use of technology and services provided through the contract held by the Ministry of Justice (MoJ) and which is accessed by a number of law enforcement agencies.

Approximately 95% of those subject to the duty (if commenced across the whole UK simultaneously) are resident in England and Wales. The current electronic monitoring service is only available in England and Wales as the contract through which the service is accessed is held by the MoJ does not extend to Scotland and Northern Ireland. Following a Ministerial agreement to continue to access electronic monitoring services via the MoJ contract with Capita EMS, work is underway to extend the contract to provide services for the Home Office only in these jurisdictions.

As this reflects the current limitations to use of electronic monitoring based on place of residence this is not considered a change in the current policy. Both Scotland and Northern Ireland Justice Departments use electronic monitoring presently but rely on radio frequency technology which lends itself primarily to the monitoring of curfews. Both administrations hold contracts with G4S whilst the MoJ holds its contract with Capita EMS. As a result, seeking to access the devolved administrations’ contracts would still lead to a degree of inequality in the treatment of those resident in England and Wales as compared with those resident in Scotland and Northern Ireland.

It is expected that we will be able to deliver a value for money solution for Scotland and Northern Ireland within 9-12 months of commencement within England and Wales.

In the interim we will continue to work with the Justice Departments in Scotland and Northern Ireland to ensure a smooth introduction of immigration Electronic Monitoring in devolved areas.

The decision to use GPS devices was assessed as a part of the commercial process. Consideration was given to the use of alternatives which could be identified as electronic monitoring but were discounted as they failed to provide the level of service expected by Ministers and Parliament i.e. that monitoring provides a 24/7 record of a person’s movements. In considering the impact of using GPS services the Home Office identified that the policy relating to electronic monitoring would be founded on the consideration of individual circumstances. In short, a balanced Convention rights based decision which reflects not only protected characteristics but other personal circumstances, the risk of harm and absconding posed by the individual and going forward the duty placed upon the Secretary of State to monitor those identified within the Paragraph 2(2) of Schedule 10 to the Immigration Act 2016.

As outlined above it is intended to split commencement of legislation to apply only to England and Wales in the first instance. Consideration has been given to delaying commencement until commercial arrangements are in place for Scotland and Northern Ireland. However, as it is possible to provide 95% of the service immediately it is not considered to be in the public interest to do so given the absence of any significant impact on those with a protected characteristic. This is supported by the case by case consideration of protected characteristics.

Discrimination may also occur based on the date on which a person becomes subject to immigration bail. For practicality reasons, initial commencement of the duty applies to those placed on immigration bail from the 31 August 2021. This allows for a gradual build-up of the service and to assess the practical impacts of the related new processes. Retrospective application of the legislation will commence within 5 months. In the interim period consideration will be given to whether any of those due to become subject to the legislation would suffer a disproportionate breach of their Convention Rights if made subject to an electronic monitoring condition. This will include consideration of the impact on protected characteristics.

It is not possible to commence in Scotland and Northern Ireland prior to the retrospective commencement in England and Wales, and therefore the commencement in Scotland and Northern Ireland will be retrospective.

The commencement of legislation in 3 stages over approximately a year may allow for a perceived discrimination against those foreign nationals who would otherwise be subject to the legislation. This could arise where a decision has been made to impose EM (on the basis that it is not a breach of Convention rights, and is not impractical), whereas a person with similar personal circumstances is either already at liberty and subject to immigration conditions or resides in Scotland or Northern Ireland. This is not intended as a long-term situation and as outlined would not apply in relation to protected characteristics.

Additionally, where a foreign national is subject to immigration bail and aged 18 or over they may already be subject to an electronic monitoring condition as prescribed within the immigration bail policy (subject to residence in England and Wales) irrespective of the commencement of the legislation.

For immigration and nationality functions, the requirement to have due regard to the need to advance equality of opportunity does not apply in relation to age, religion or belief and race; however, when making a decision regarding the use of Electronic Monitoring, consideration is given, on an individual basis, to potential breaches of Convention rights in addition to practical considerations e.g. the ability of the individual to comply with their Electronic Monitoring related immigration bail conditions. The process which has been mapped includes providing a clear opportunity to provide representations against Electronic Monitoring conditions. This includes the opportunity for a person seeking immigration bail to include representations against the use of Electronic Monitoring as well as the active invitation of representations as part of the consideration process. Where it has been established that there is no disproportionate breach of Convention rights in an individual case, decisions will be based on any criminality, any harm that they could cause the public and the individual’s compliance with immigration bail conditions alongside broader immigration legislation. For practicality reasons, eg. available resources, those who pose less harm to the public as a result of their criminality and who are more compliant with their immigration bail conditions are more likely to spend a shorter period subject to Electronic Monitoring. In addition, it may not be practical to electronically monitor those who are resident in more remote locations where connectivity is less reliable and/or it is not possible to operate an effective field support service.

2. Summary of the evidence considered in demonstrating due regard to the Public-Sector Equality Duty.

In order to demonstrate due regard to the Public Sector Equality Duty (PSED), the Home Office has considered evidence from a number of sources primarily:

• UK Prison Population Statistics - UK Prison Population Statistics (parliament.uk)

• Internal Home Office Management data – the number of deportation orders obtained in 2020 for foreign national offenders broken down by nationality, age and gender

Deportation Orders served, top 10 nationalities by gender and age group, 2020

Country of nationality	Total 18-29 (age group)	Female 18-29	Male 18-29	Total 30-49 (age group)	Female 30-49	Male 30-49	Total 50-69 (age group)	Female 50-69	Male 50-69	Unknown 50-69	Total 70+	Male 70+	Grand total
Albania	263	1	262	129	0	129	7	0	7	0	0	0	399
Romania	154	8	146	194	12	182	19	0	19	0	0	0	367
Poland	47	1	46	132	1	131	14	0	14	0	0	0	193
Lithuania	41	1	40	77	3	74	9	2	7	0	0	0	127
Portugal	19	0	19	23	1	22	8	1	7	0	0	0	50
Jamaica	12	0	12	14	0	14	8	1	7	0	0	0	34
Bulgaria	16	7	9	13	7	6	4	2	2	0	0	0	33
Latvia	13	3	10	18	2	16	2	0	2	0	0	0	33
Italy	5	0	5	17	0	17	9	1	8	0	0	0	31
Netherlands	17	0	17	5	0	5	5	0	5	0	0	0	27
Other nationalities	174	13	161	280	18	262	57	6	50	1	3	3	514
Grand total	761	34	727	902	44	858	142	13	128	1	3	3	1808

Notes: These figures have been taken from a live operational database. As such, numbers may change as information on that system is updated. Data extracted on 15/10/2021.

• Immigration Enforcement vulnerability strategy

• Caselaw – Gedi www.bailii.org/ew/cases/EWCA/Civ/2016/409.html

• Caselaw - Jalloh R (on the application of Jalloh (formerly Jollah)) (Respondent) v Secretary of State for the Home Department (Appellant) (supremecourt.uk) (PDF, 64.8KB)

• Existing immigration bail guidance and

• Deportation policy

Stakeholder engagement

The Ministry of Justice have developed their service to offer GPS devices. This has been delivered through an ongoing major programme with full oversight. As their programme has developed, they have completed a number of assessments of the impact on equality under the Public Sector Equality Duty. The Home Office has had sight of these assessments to help inform consideration of whether there are any impacts in terms of deployment as a tool for managing immigration bail.

As the Government Department holding a contract for electronic monitoring, the Ministry of Justice has assessed the impact of electronic monitoring on those with protected characteristics and have shared this with the Home Office. Consideration has been given to the impact of using GPS technology on the following characteristics and of the approach which is employed by the EMS officer deploying the service on behalf of the Home Office.

Additionally, as a member of the Ministry Of Justice’s oversight boards, the Home Office has had access to academic research conducted on behalf of the Ministry of Justice as well as papers analysing the use of electronic monitoring in other countries including Canada.

• Canadian research (PDF, 213KB)
• EMEU - Electronic Monitoring in England and Wales (PDF, 1MB)

There has been access to data gathered via pilots conducted by that programme to aid understanding of the practical issues. There has also been participation with a forum led by one of these academics, Andrea Hucklesby, examining the ethical and practical implications of the use of electronic monitoring.

3a. Consideration of limb 1 of the duty: Eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act.

The primary purpose of the policy change is to fulfil a government manifesto commitment to electronically monitor foreign national offenders.

Consideration has been given to whether the changes could constitute conduct prohibited by the Equality Act.

The policy would apply to all people who are subject to deportation orders or deportation proceedings however, there is discretion within the policy to not apply the electronic monitoring duty where it would breach a person’s Convention Rights under ECHR, or it would be impractical to do so.

Age

Schedule 3 of the Equality Act permits exceptions in relation to functions exercised under certain immigration legislation in relation to age and nationality and ethnic or national origins. Its effect is that discrimination that is authorised or required by legislation and the Immigration Rules is not unlawful.

Direct discrimination

The Home Office is prohibited from using electronic monitoring as a condition of immigration bail on those under the age of 18 (paragraph 4(5) of Schedule 10 to the Immigration Act 2016) and this will not change due to the partial commencement of the duty. This differentiation on the grounds of age is justifiable in order to fulfil the duty created by Section 55 of the Borders, Citizenship and Immigration Act 2009 to make arrangements for ensuring that immigration, asylum and nationality functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the UK. Decisions to apply discretion where a person is subject to the duty will not be based on a person’s age. Therefore, although only persons over the age of 18 will be affected by the commencement to the duty, with regards to those over 18 we do not consider that Direct discrimination on the basis of age arises due to the commencement of the duty.

Indirect discrimination

The majority of Foreign National Offenders who were made subject to a deportation order in 2020, were aged between 30 and 49 (see table in 2 above), therefore people within this age group are most likely to be subject to electronic monitoring than other age groups.

The Home Office immigration bail policy will indicate that special consideration should be given to the age of the person being considered for electronic monitoring. Where a person is over 18, age in itself is not a barrier to electronic monitoring as equipment can be configured to make allowances for different sizes and ranges of mobility, but should be considered along with any indication of frailty or medical conditions associated primarily with older age e.g. vascular dementia, limited mobility, arthritis. It is acknowledged that most of those impacted will be Foreign National Offenders. Based on our understanding of literacy levels amongst the general prison population it is acknowledged that there may be a number of individuals impacted by the partial commencement of the duty who may have low level literacy skills, including many young people, and therefore we have ensured all literature is in an easy to read format and will be verbally explained.

Section 55 considerations

Considerations have been made as regards the ‘best interests of children’, in regards to the partial commencement of the duty. It is provided to support the Home Secretary’s assessment of her duties as set out at Section 55 of the Borders, Citizenship and Immigration Act 2009:

(1) The Secretary of State must make arrangements for ensuring that—

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

Although children are not directly impacted by the commencement of the electronic monitoring duty, as part of the immigration bail guidance, decision makers will need to ensure that they have regard to Section 55 when making decisions on immigration bail, and conditions of that bail (including electronic monitoring), which may involve or impact on children under the age of 18. All available information and evidence must be carefully considered to determine if the imposition of the electronic monitoring would be contrary to a child’s best interests. Where this is the case, decision makers must consider and record on file whether those interests are outweighed by the reasons in favour of granting bail and of imposing electronic monitoring in the individual circumstances.

Following these considerations therefore, it is likely that the partial commencement of the duty would lead to a greater level of indirect impact upon those aged between 30 and 49 (see table in 2 above). In any case, the disadvantages would be justified and that it is appropriate to rely on the limited exceptions in the 2010 Act in order to support a proportionate means of achieving a legitimate aim, of deporting foreign national criminals whose presence in the UK is not conducive to the public good.

Disability

For the purposes of the Equality Act, disability is described as being: “A physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on an individual’s ability to carry out normal daily activities”. It will be a matter for the decision maker to ensure the person to be monitored is physically and mentally fit enough to be tagged and to comply with the requirements of their order.

The Home Office does not collect data on the number of people facing deportation broken down by disability as defined by the Equality Act 2010.

Direct discrimination

The change places all persons who are subject to deportation proceedings or a deportation order and based in England and Wales subject to the duty to electronically monitor those on bail. We do not consider that Direct discrimination arises as a consequence of this change, with regards to this protected characteristic.

Indirect discrimination

There is no evidence to suggest that the partial commencement of the duty would have a disproportionate negative impact on this particular group when compared with others subject to the duty. All decisions to apply the duty must take into consideration whether its application would breach Convention rights or if it would not be practical to apply the duty.

Reasonable adjustments

We accept that where a person is subject to the duty and has a disability, Reasonable adjustments may need to be made on account of that disability. These Reasonable adjustments can include ensuring all information is in an easy to read format and explained verbally, and equipment being configured to make allowances for different sizes and ranges of mobility. However, there are limitations to the equipment used, and this will be considered as part of the decision in whether it is practical to apply the duty to a person.

Home monitoring units will be installed at the address of some of those released on immigration bail. This has a telephone handset with a ring tone that can be set to a range of volumes. There currently is no technical solution for someone who is profoundly deaf as communication between the Monitoring Centre and the person concerned is via a telephone handset. Where the installation of a home monitoring unit is not considered appropriate the immigration bailee will be issued with a mobile phone.

Those with disabilities that prevent them from being tagged or complying with electronic monitoring requirements should not have such conditions imposed. Where the contracted supplier, EMS become aware of this after the order is issued, they will inform the decision maker.

Under Home Office immigration bail policy electronic monitoring will not be used for those who have been subject to detention under paragraphs 35 and 48 of the Mental Health Act and whose immigration case is managed by the Mentally Disordered Offenders Team of FNO RC.

Under the policy it will also be appropriate to give specific consideration to any physical or mental health conditions which may be exacerbated using electronic monitoring. Consideration will be dependent on the provision of medical evidence of the expected impact.

On the basis of the above, there is no evidence to suggest that anyone under the protected characteristic of disability will be adversely impacted by the commencement of the duty.

Gender reassignment

Under section 7 of the Equality Act 2010, an individual has the protected characteristic of gender reassignment where the person has proposed, started or completed a process to change their gender. This not only covers situations in which the individual has begun hormone treatment and/or gender reassignment surgery; Section 43 of the Act provides that the protected characteristic also applies in cases in which a person decides to spend the rest of their life in the opposite gender without seeking medical advice or without medical intervention.

The Home Office does not routinely collect data on those subject to deportation proceedings by gender reassignment. It is important to note Transgender or intersex persons will be respected and treated according to the gender that they identify and live as.

Direct discrimination

The change places all persons who are subject to deportation proceedings or a deportation order and based in England and Wales subject to the duty to electronically monitor those on bail. We do not consider that Direct discrimination arises as a consequence of this change, with regards to this protected characteristic of gender reassignment.

Indirect discrimination

There is no evidence to suggest that the partial commencement of the duty would have a disproportionate negative impact on this particular group when compared with others subject to the duty. Therefore, we do not consider that any Indirect discrimination arises with regards to this protected characteristic.

As indicated below in the section on Sex, if the order to monitor indicates that the person to be monitored is female, the service provider will deploy a female member of staff to tag that person. If the person identifies as male, then a male or female member of staff will carry out the installation. For non-binary individuals they will have their equipment fitted by a member of staff of the sex they feel most comfortable with.

If a male officer is deployed on the basis that the order indicates a male person, but on arrival, the person to be monitored identifies as a female, the service provider will rearrange the visit to allow a female member of staff to fit the tag. Female officers can fit tags to males.

The Home Office immigration bail policy does not identify any specific considerations for transgender or intersex individuals in respect of electronic monitoring aside from those identified above. The policy and partial commencement of the duty applies equally to all individuals subject to deportation and based in England and Wales regardless of whether they hold the protected characteristic of gender reassignment.

On the basis of the above, there is no evidence to suggest that anyone under the protected characteristic of gender reassignment will be adversely impacted by the partial commencement of the duty.

Marriage and civil partnership

We have considered equality as it affects marriage and civil partnership. The Home Office does not regularly collect or publish data on the marital status of people subject to immigration bail, or who are subject to deportation proceedings or a deportation order.

Direct discrimination

Immigration bail, and conditions which can be applied to a person on bail apply equally to all individuals regardless of their marital status, and the policy does not specify any exceptions based on marriage and civil partnership. However, the legislation and policy allow for consideration of Convention rights and individual consideration may be given to any detrimental impact on family members or civil partners. We therefore consider that the policy changes do not result in Direct discrimination with regards to this protected characteristic.

Indirect discrimination

There is no evidence to suggest that partial commencement of the duty would have any disproportionate impact on individuals because of their marital status. We therefore consider that this policy does not result in Indirect discrimination with regards to this protected characteristic.

Pregnancy and maternity

Immigration bail applies equally to all persons who meet the criteria set out in 1 (1) of Schedule 10 to the Immigration Act 2016 whether they are pregnant or have recently given birth.

Direct discrimination

Although immigration bail applies equally to all persons who are liable to be detained, guidance around the electronic monitoring condition is clear that pregnant women or women who have recently given birth may not be suitable for the condition to be applied. It should be noted that pregnancy does also not always mean EM cannot be applied; however, this provision in the policy does mean that persons who are pregnant or post-partum may be treated more favourably than those who are not. 13(6)(b) of the Equality Act 2010 provides that it is not discriminatory to afford special treatment to a woman in connection with pregnancy or childbirth.

There will be further guidance within the policy for circumstances where a pregnant person will be subject to the electronic monitoring duty, for consideration of whether EM may not be practical or a breach of their rights under ECHR. This is explicitly considered where a person is 18 weeks or more pregnant, or is 3 months post-partum however, these considerations are not exhaustive, and the individual facts of the case must be considered.

The changes due to the commencement of the duty do not alter the explicit consideration of where a person is pregnant and therefore we do not consider that this policy change results in Direct discrimination with regards to this protected characteristic.

Indirect discrimination

There is no evidence to suggest that the policy would have any disproportionate impact on individuals because of their being pregnant. We therefore consider that this policy does not result in Indirect discrimination with regards to this protected characteristic.

Reasonable adjustments

In the rare circumstances where a decision may be considered to look to apply the duty to a person who is pregnant or up to 3 months post- partum, Reasonable adjustments may need to be made. These Reasonable adjustments can include equipment being configured to make allowances for different sizes and ranges of mobility – for example, there is the potential for pregnant women to be unable to wear a tag on their ankle - however, there are limitations to the equipment used and this will be considered as part of the decision in whether it is practical to apply the duty to a person. Stakeholders and decision makers will be informed of the limitations of the equipment as mentioned elsewhere in this document. If a tag cannot be fitted the decision maker will be informed and will advise on next steps.

Race

The definition of race as a protected characteristic within the Equality Act 2010 includes reference to nationality. Any person without leave to remain in the UK, who meets the criteria set out in 1 (1) of Schedule 10 to the Immigration Act 2016 can be placed on immigration bail. The cohort of people who are subject to immigration bail, is made up of non-UK nationals. Immigration control necessitates overseas nationals being subject to considerations not applicable to UK nationals and will inherently impact some nationalities disproportionately.

Direct discrimination

The immigration bail guidance applies equally to all persons, regardless of their race. Decisions to apply discretion where a person is subject to the duty will not be based on a person’s race. As a result, we do not consider that Direct discrimination arises with regards to a person’s race as a result of the partial commencement of this electronic monitoring duty. .

Indirect discrimination

It is acknowledged that certain nationalities may be more likely to be subject to electronic monitoring. The cohort of individuals who will fall within the duty is fluid and is influenced by the volumes of each nationality within the community, as well as levels of criminality and compliance with immigration control . In 2020, 1,808 deportation orders were obtained for Foreign National Offenders from a total of 97 countries. 4 countries accounted for 1,086 of those deportation orders, whilst the top 10 countries accounted for 1,294 orders. In addition, prison statistics show that in March 2020 there were 163 nationalities held in prisons in the UK. Of those, the top 10 nationalities accounted for 56% of all foreign national offenders^{[footnote 1]}. However, it will be the actions of the individual which led them to be subject to deportation . Once the individual is identified as being subject to the duty to be electronically monitored, a decision will be made as to whether an exemption should apply, based on their personal circumstances. Nationality is not a factor in that decision-making process.

The Ministry of Justice’s Contract Management Team has been working with EMS and Ministry of Justice’s Analytics team to improve data management and reporting in this area. They plan to develop a set of required fields such that data on race, where made available on the notification or provided by the monitored person, can be retrieved on all live orders, as well as historical data for those that have been monitored. The Home Office have an embedded member of staff within the Contract Management Team.

EMS staff receive equality and diversity training and so are clear about the expected standards of behaviour in their dealings with those that they may come into contact with in their daily jobs, and are also clear that failure to abide by these standards may result in some form of action being taken.

Induction and other documentation will be available in different languages and will be in easy read format. Additionally, for those whose first language is not covered by the documentation the EM Service can make use of a telephone translation service. EMS has been provided with a list of languages that the documentation provided to immigration bailees will need to cover, as well as making use of the translation services as and when required.

Following the considerations above, it is likely that commencement of the duty and use of GPS tags would lead to a greater level of indirect impact upon the top 10 nationalities identified. In any case, the disadvantages would be justified in order to support the objectives as we believe that it is appropriate to rely on the limited exceptions in the 2010 Act due to the legitimate aim of deporting foreign national criminals whose presence in the UK is not conducive to the public good.

Religion or belief

Immigration bail policy does not prescribe, or exclude, individuals from immigration bail or being subject to the duty by virtue of their religion or belief. Any individual subject to deportation proceedings or a deportation order may be placed on EM regardless of religion or belief (or absence of it), provided that it is not impractical to do so or is in breach of their rights under ECHR.

Direct discrimination

Decisions as to whether to apply the duty will not be influenced by a person’s religion or belief and therefore we do not consider that Direct discrimination arises as a result of this policy change, with regards to this protected characteristic.

Indirect discrimination

The Home Office does not collect or publish data on the number of people subject to deportation proceedings or a deportation order broken down by religion or belief. The cohort of people subject to deportation proceedings, or a deportation order is made up of non-UK nationals with no leave to remain in the UK, with migrants from some countries or regions more commonly represented within that cohort. It is possible that, as with the protected characteristic of race, some religions or beliefs will be disproportionately represented within this cohort of individuals

The Home Office recognises that individuals may require the provision of specific observations to allow them to practice their religion whilst on EM, and that they would be disproportionately disadvantaged if these provisions were not fulfilled.

EMS staff will receive equality and diversity training and so will be clear of the expected standards of behaviour in their dealings with the various religious beliefs of monitored persons.

We consider that any Indirect discrimination arising from the partial commencement of the duty with regards to this protected characteristic represents a proportionate means of achieving the policy aims as outlined above.

Sex

Schedule 10 to the Immigration Act 2016, and the immigration bail guidance does not exclude any persons from being subject to bail, or any of the conditions of bail by virtue of their sex – men and women are equally eligible for bail and all conditions of bail.

Direct discrimination

The immigration bail guidance and partial commencement of the duty applies equally to all persons, regardless of their gender. Decisions to apply discretion where a person is subject to the duty will not be influenced by a person’s sex. As a result, we do not consider that Direct discrimination arises with regards to a person’s sex as a result of this policy change.

Indirect discrimination

It is acknowledged that more males will be subject to electronic monitoring than females. The duty applies primarily (although not solely) to Foreign National Offenders. Of the 1,808 deportation orders signed in 2020 only 91 were for women. The inequality is a reflection of the general prison population where in 2019 just 4% of the UK’s prison population were female, and statistics show that this is a long-term trend^{[footnote 2]}. The final decision on whether there is an exemption which applies to the duty will be determined on a case by case basis examining the individual circumstances of the person, but sex will not be a determining factor within this consideration.

Where relevant, Reasonable adjustments with regards to fitting the devices will be made. Females will always have the equipment fitted by a female member of staff. If the person to be monitored identifies as male, then a male or female member of staff will carry out the installation. For non-binary individuals they will have their equipment fitted by a member of staff of the sex they feel most comfortable with.

We consider that any Indirect discrimination arising from the partial commencement of the duty with regards to this protected characteristic represents a proportionate means of achieving the policy aims as outlined above.

Sexual orientation

A person’s sexual orientation is not included as a specific factor when considering whether or not to apply the duty.

Direct discrimination

The immigration bail policy, and partial commencement of the duty applies equally to all individuals subject to deportation proceedings or a deportation order, regardless of their sexual orientation. Therefore, we do not consider that this will result in Direct discrimination with regards to this protected characteristic.

Indirect discrimination

The Home Office immigration bail policy does not identify any specific considerations in relation to sexual orientation in respect of electronic monitoring aside from those identified above. There is no evidence to suggest that the partial commencement of the duty would have any disproportionate impact on individuals because of their sexual orientation and therefore we do not believe there to be any Indirect discrimination with regards to this protected characteristic.

EMS have policies and training in place to ensure staff understand their obligations around equality and required behaviour and that they should not show bias or discriminatory behaviour towards members of the LGBT community.

Conclusion

As a result of the policy to partially commence the electronic monitoring duty the people impacted by the use of any electronic monitoring form a small subset of the overall population who receive a service through the Migration and Borders System. Decision makers will reach their conclusion that electronic monitoring is appropriate by applying the related policy which includes reference to requirements specific to GPS technology. Decisions will be made on an individual basis, albeit within a framework. As a result, individuals with shared characteristics within that smaller group will not all receive the same outcome. The personal circumstances of an individual when looked at in conjunction with their immigration compliance, criminality, the risk of harm they pose to the public and any vulnerabilities will determine whether they are placed on a fitted device, non-fitted device or no device; how long it takes to move through device types and whether there are any supplementary electronic monitoring conditions attached to their immigration bail. This means that 2 people sharing protected characteristics could have a very different outcome.

We do not consider that partial commencement of the duty will disproportionately affect those with any particular protected characteristic, for the reasons given above.

3b. Consideration of limb 2: Advance equality of opportunity between people who share a protected characteristic and people who do not share it.

This limb of the duty does not have to be considered in relation to immigration and nationality functions in respect of race (excluding colour), religion or belief and age.

The Equality Act specifies that this limb involves having due regard to three specific aspects:

• removing or minimising disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
• taking steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; and
• encouraging persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

Disability

The Equality Act 2010 places a duty on public bodies which requires them to make Reasonable adjustments for individuals with a disability (including mental health and learning disabilities) so that they are not disadvantaged. it is possible that an individual with a physical or mental disability may require additional support, which is provided in line with this duty, for example literature in accessible formats or Reasonable adjustments. When making a decision on whether to apply the duty, consideration must be given as to whether these needs would mean electronic monitoring is a breach of Convention Rights or is impractical.

Gender reassignment

We do not foresee any particular needs or disadvantages as a result of an individual with this protected characteristic relating to electronic monitoring.

Maternity and pregnancy

Maternity and pregnancy may raise additional needs for persons who are subject to the duty. When making a decision on whether to apply the duty or cease electronic monitoring, consideration must be given as to whether these needs would mean electronic monitoring is a breach of Convention Rights or is impractical.

Race (colour)

We do not foresee any particular requirements or disadvantages arising as a result of an individual’s colour.

Sex

We do not foresee any particular needs or disadvantages as a result of an individual’s sex relating to electronic monitoring.

Sexual orientation

We do not foresee individuals of any particular sexual orientation having specific needs relating to electronic monitoring.

We acknowledge that, with regard to the third aspect of limb 2, there will be some limitations on participation in public life for individuals who are subject to the duty and placed on electronic monitoring. This restriction is inherent to the nature of immigration bail and will apply to any person subject to immigration control and therefore potentially liable to detention regardless of any protected characteristic, therefore we do not believe this disproportionately disadvantages any particular group.

3c. Consideration of limb 3: Foster good relations between people who share a protected characteristic and persons who do not share it

• We do not foresee this policy change causing detrimental relations between people who share a protected characteristic and those who do not, on the grounds that it does not apply any specific advantage to any group on the basis of their sharing a protected characteristic.

• We do not anticipate any particular groups of people holding any other group responsible for any perceived problems.

• We do not anticipate any particular group as being seen to benefit unfairly on the basis of any one or more protected characteristics.

All FNORC EM hub staff undertake mandatory training in diversity and inclusion.

EMS have policies and training in place to ensure staff understand their obligations around equality and required behaviour and that they should not show bias or discriminatory behaviour.

4. Summary of foreseeable impacts of policy proposal, guidance or operational activity on people who share protected characteristics

Protected characteristic group	Potential for positive or negative impact?	Explanation	Action to address negative impact
Age	Yes	It is possible that due to the demographics of the cohort Foreign national offenders subject to deportation or deportation proceedings, people of some age groups may be more impacted than others.	This is inherent to the introduction of any policy on immigration bail or concerning foreign national offenders and as such we believe our policy aims justify this potential impact.
Disability	No	We do not anticipate this policy change will result in a negative impact on those who have this protected characteristic. Notwithstanding that, the Home Office has a duty to provide Reasonable adjustments for those with a disability.	The duty to make Reasonable adjustments for individuals with disabilities, and the way the Home Office fulfils this duty are covered at parts 3a and 3b of this document. Electronic monitoring should not be applied to an individual where it would breach Convention Rights or would not be practical to do so; any disability would be taken into account as part of these considerations, including either physical or mental illness and the impact electronic monitoring may have on the person.
Gender reassignment	No	We do not anticipate this policy change will result in a negative impact on those with this protected characteristic.
Marriage and civil partnership	No	We do not anticipate this policy change will result in a negative impact on those with this protected characteristic
Pregnancy and maternity	No	We do not anticipate this policy change will result in a negative impact on those with this protected characteristic. However, individuals with the protected characteristic of pregnancy or maternity may require particular consideration of whether EM is practical or adjustments which can be made.	The immigration bail policy sets out a non-exhaustive list of circumstances where EM may not be practical, and this includes where an individual is pregnant (18 weeks +) or has recently given birth (within last 3 months)
Race	Yes	The cohort of people subject to immigration bail and foreign national offenders, by definition, made up of overseas nationals, and as such this policy change may disproportionately affect some nationalities.	This is inherent to the introduction of any policy on immigration bail and as such we believe our policy aims justify this potential impact.
Religion or belief	Yes	The cohort of people subject to immigration bail and foreign national offenders, is made up of a number of different religions, and as such this policy change may disproportionately affect some religions more than others.	This is inherent to the introduction of any policy on immigration bail and as such we believe our policy aims justify this potential impact.
Sex	Yes	The fact that there are significantly more men than women who are foreign national offenders, suggests that men may be more likely to be placed on electronic monitoring. As such, this policy may disproportionately impact men, as a greater number of men will fall within its scope.	This disproportionate impact is inherent to the introduction of any policy on immigration bail or foreign national offenders and as such we believe our policy aims justify this potential impact.
Sexual orientation	No	We do not anticipate this policy change will result in a negative impact on those with this protected characteristic	EMS have policies and training in place to ensure staff understand their obligations around equality and required behaviour and that they should not show bias or discriminatory behaviour.

5. In light of the overall policy objective, are there any ways to avoid or mitigate any of the negative impacts that you have identified above?

Whilst we do not foresee the policy change having a disproportionate impact on individuals with protected characteristics, we have put a number of mitigations in place to minimise any potential negative impact:

• Consideration of whether the duty applies will be based on the impact of the use of EM on the individual’s Convention rights. It will consider the impact on any medical conditions – both physical and mental, and impact on Article 8 rights. A person’s compliance with immigration control including any previous immigration bail conditions will also be a deciding factor.

• Decision makers have been required to attend a training course regarding the duty and the way in which it is being implemented. They have also been required to undergo e-learning on how to task and record events on ATLAS. This training has been supplemented by changes to the immigration bail policy and casework instructions. There is an established enquiry hotline for questions from staff and frequently asked questions are circulated through normal communications channels. The policy and process has also been discussed at command meetings where questions have been welcomed.

• Those who may become subject to the duty will be provided with information leaflets whilst either in immigration detention or whilst serving a prison sentence. It is planned to offer this leaflet in a range of languages. Amendments have been made to all letter templates which set out a person’s immigration bail rights to include reference to the duty. This includes seeking reasons why the person feels that there may be a breach of their Convention rights. Representations are welcomed both before EM commences and once it is in place.

• In addition to information provided by the Home Office those being monitored will provide information from the EM Supplier which includes advice on maintaining their device and how to seek assistance from the EM Supplier. Leaflets are available in a variety of languages and a phone interpretation service may be used during the fitting of a device if the person being monitored requires this.

• Posters are to be displayed in IRCs and may also be displayed in prisons with high numbers of foreign national offender.

• Both the Home Office and the EM Supplier provide information relating to the use of personal data in their information leaflets.

• There have been discussions with the Justice Departments in both Scotland and Northern Ireland regarding the introduction of EM for immigration purposes in the devolved administrations. All parties are content with the delay to introducing the service in Scotland and Northern Ireland in order to ensure that all necessary arrangements are in place.

• The date of commencement of the legislation in relation to the start of immigration bail or residence in Scotland and Northern Ireland is not influenced by protected characteristics.

6. Review date

August 2022

7. Declaration

I have read the available evidence and I am satisfied that this demonstrates compliance, where relevant, with Section 149 of the Equality Act and that due regard has been made to the need to: eliminate unlawful discrimination; advance equality of opportunity; and foster good relations.

SCS sign off:

Name/Title: Karyn Dunning

Directorate/Unit: Foreign National Offenders Command, Immigration Enforcement

Lead contact:

Date: 18/03/2022

For monitoring purposes all completed EIA documents must be sent to the PSED@homeoffice.gov.uk

Date sent to PSED Team: 06/04/2022

1. UK Prison Population Statistics (parliament.uk) ↩

2. UK Prison Population Statistics (parliament.uk) ↩