Guidance

Equality impact assessment: transition from radio frequency to GPS electronic monitoring devices

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 impact of the transition from the use of radio frequency-based technology to GPS technology for the purpose of electronically monitoring individuals subject to immigration bail.

The power to apply an electronic monitoring condition of immigration bail 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. The legislation does not direct the type of technology to be used, providing the flexibility to change to more efficient and advanced technology without the need to change legislation.

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 first of these.

The Home Office has been using Radio Frequency based electronic monitoring for a number of years. This technology relies on a Home Monitoring Unit which records the proximity of a device secured to the ankle of the person being monitored (an ankle tag). The Home Monitoring Unit is set to the boundary of the individual’s place of residence. To provide an effective method of monitoring the individual Radio Frequency devices rely on the use of a curfew and monitors movement across the boundary during the curfew period. This technology does not provide for the continuous monitoring of individuals or for monitoring them outside of their place of residence.

The transition to GPS technology will allow for more effective monitoring of the individual without the need to impose a curfew (although this remains a possible condition of immigration bail). This form of device does not rely on a Home Monitoring Unit and therefore does not limit an individual to a single place of residence. Whilst there are practical concerns surrounding the charging of a GPS enabled device the use of GPS technology allows for the monitoring of those of no fixed abode unlike Radio Frequency devices.

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 a one-off consideration of individual circumstances in all but a few limited cases. In short, a balanced Convention rights based decision which reflects not only the protected characteristic 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 Immigration Act 2016 Schedule 10 paragraph 2(2).

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.

Data

A consequence of this form of electronic monitoring is the collection of data relating to an individual’s whereabouts during the monitoring period. This will include information relating to any breach of a curfew, inclusion zone or exclusion zone as well as the tampering with or removal of a device as well as detailed movements. In addition, the device will record a person’s whereabouts 24/7. This is known as trail data and will be stored by the Electronic Monitoring supplier. Any data that is gathered from the devices will be processed automatically and will not be routinely monitored by the Department.

A Data Protection Impact Assessment has been completed and includes the following conditions:

We undertook a Data Protection Impact Assessment prior to the introduction of GPS tagging which sets out when a person’s data can be accessed, namely:

1. Where a person breaches their immigration bail conditions
2. Where a person absconds from immigration bail.
3. Where a legitimate and specific request is made for access to specific data by a Law Enforcement Agency.
4. Where article 8 Representations or further submissions are made and where access to the data is directly relevant to the claim being made.
5. Intelligence of a breach of bail has been received.
6. Subject Access Requests or Legal Challenge.

Access of data outside of these circumstances is considered a data breach and persons who are subject to GPS electronic monitoring will be made aware of the circumstances as to when their data can be accessed during the induction process.

Where the data relates to 1 or 2 above the data will be used to identify what response, if any, is required to bring the individual back into compliance with their immigration bail conditions. The data received will inform the appropriate action when consider in conjunction with the wider circumstances of the case and any mitigation provided by the individual.

Where the data relates to 4 above the data will be used to confirm, or otherwise, a claim made by an individual regarding their movements or regular activity. It may be used to support a decision made regarding convention rights in relation to the individual’s deportation case.

When accessing the data for 1 – 6 above the Home Office may identify that there has been a breach of an immigration condition or a criminal justice condition as set out in a release licence. Where such a breach is identified the Home Office will share that data with the relevant body.

The collection and storage of data related to EM is subject to the General Data Processing Regulations. GPS based EM devices collect data on a person’s movements known as trial monitoring and this is stored at system level against a personal identification number. The system will also record a person’s name, nationality, date of birth, gender and address separately. When a person breaches the conditions linked to their EM a notification is generated and shared with the Home Office to consider what action is required. The Home Office may also request a person’s trail data where there is reason to believe they have breached another bail condition, or the data will help establish whether a claim under Article 8 of the Human Rights Act is genuine. Anonymised data may also be requested to identify trends and how to improve the use of EM.

The Home Office is committed to implementing this operational change in a way which promotes equality, respects diversity and takes into account the needs of people with protected characteristics. The intention is that this operational change will not impact negatively on individuals with protected characteristics and that, in the rare situations in which there may be a negative impact, this is justifiable and proportionate. Where there may be a negative impact, we explain how this is justifiable and proportionate in accordance with our obligations under the Equality Act 2010 and explain the mitigating action being taken.

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

The transition to GPS technology 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. This replaces the previous policy of using electronic monitoring on the basis of an individual’s criminal history and risk of absconding as well as the use of curfews which can be set for up to 12 hours per day.

In June 2015 745 foreign nationals were subject to immigration bail with an electronic monitoring condition. This was reduced significantly following the findings in the cases of GEDI ^{[footnote 1]} and JALLOH^{[footnote 2]} where the imposition of electronic monitoring was found to be unlawfully applied in some instances and that the use of a curfew was in effect a form of detention. Prior to the transition to GPS technology average monthly monitored individuals had settled to between 230 and 250.

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 practical reasons such as 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. This approach does not differ based on the technology to be used.

No criteria within the policy, regarding consideration of whether to apply the duty where it may be impractical or a breach of a person’s Convention Rights, are based on any of the protected characteristics.

Data collected through a GPS device will only be accessed as outlined in part 1, this is supported by a data protection impact assessment. Data is available on request by the monitored person. Whilst the volume of data is different from that acquired through radio frequency monitoring there are no variations of data collected as a result of any characteristics.

The immigration bail guidance has been updated to include the use of GPS devices, and the transition to using these as the main electronic monitoring devices. There may be an operational decision made on the grounds for public safety where Radio Frequency monitoring is used, and this is covered in the guidance.

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:

• 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 including how to identify vulnerable people that are encountered https://ukhomeoffice.sharepoint.com/sites/BICSGuidance/SitePages/identifying-people-at-risk.aspx

• 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

• Deportation policy

• Ministry of Justice oversight board papers – including data regarding the transfer of other groups from RF to GPS, studies commissioned by the ministry of Justice, high-level compliance statistics for other cohorts, risks and benefits for the use of GPS devices.

• Ministry of Justice assessment of electronic monitoring of those with protected characteristics

Stakeholder engagement

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

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 the Netherlands. 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.

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 a one-off consideration of individual circumstances in all but a few limited cases. In short, a balanced Convention rights based decision which reflects not only the protected characteristic 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 Immigration Act 2016 Schedule 10 paragraph 2(2).

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.

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 allow for more effective monitoring of individuals, without the limits of a curfew or residence condition as is the case with the current Radio Frequency tags.

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

The change would apply to all people who are subject to electronic monitoring, or liable to be electronically monitored. This cohort is largely made up of Foreign national offenders who are subject to deportation orders or deportation proceedings, but is not exclusive to this cohort and could be applied on any person who is subject to immigration bail where the individual circumstances warrant it. Where the duty does not apply, EM is more likely to be appropriate as a condition of bail where a person poses a high risk of harm to the public on the basis of criminality and/or in cases concerning national security. This application is irrespective of any protected characteristics and would therefore not constitute Direct discrimination.

Consideration has been given to whether they constitute Indirect discrimination, but have reached the conclusion that they do not, for the reasons set out below. It is not considered that they entail any other form of discrimination prohibited under the Equality Act.

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 and this has not changed due to the transition from Radio Frequency to GPS devices. 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 a tag 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 a change in the type of device used.

Indirect discrimination

The transfer to GPS would apply to all people who are currently subject to electronic monitoring, are on or liable to be granted immigration bail and could have electronic monitoring as a condition of bail. This cohort is largely made up of Foreign national offenders who are subject to deportation orders or deportation proceedings but is not exclusive to this cohort and could be applied on any person who is subject to immigration bail where the individual circumstances warrant it. The majority of Foreign National Offenders who were made subject to a deportation order in 2020, who will be the main cohort affected by this change, are aged between 30 and 49, 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 GPS 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.

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 transition from Radio Frequency to GPS, 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 transition from Radio Frequency to GPS monitoring would lead to a greater level of indirect impact upon those aged between 30 and 49. In any case, the disadvantages would be justified and are a proportionate means of achieving a legitimate aim, which is to deport 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

All persons who are caught by the electronic monitoring duty or are on immigration bail or liable to be granted immigration bail and an electronic monitoring condition is considered appropriate in their case, will be placed on GPS monitoring. We do not consider that Direct discrimination arises as a consequence of this change, with regards to disability.

Indirect discrimination

Persons who have a disability and fall within the cohorts could be negatively impacted by Electronic Monitoring, however all decisions to apply EM must take into consideration whether its application would breach Convention rights or if it would not be practical to do so based on the persons individual circumstances. 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. It must be noted that EM must not be imposed following detention under Sections 37 or 41 of the Mental Health Act 1983 where the person remains subject to a supervision order.

Reasonable adjustments

We accept that where a person is either subject to the duty or being considered for EM and they have 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 EM condition 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 transition to GPS.

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 immigration bail, deportation orders or 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

All persons who are caught by the electronic monitoring duty or are on immigration bail or liable to be granted immigration bail and an electronic monitoring condition is considered appropriate in their case, will be placed on GPS monitoring. 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 transition from Radio Frequency to GPS monitoring would have a disproportionate negative impact on this particular group when compared with others however, we note that in some cases Reasonable adjustments may need to be made for this group.

Reasonable adjustments

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 transition 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, we do not consider that any Indirect discrimination arises with regards to this protected characteristic.

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 of GPS on family members or civil partners. However, we consider that the policy change to use GPS monitoring does not result in Direct discrimination with regards to this protected characteristic.

Indirect discrimination

There is no evidence to suggest that the transition to GPS monitoring would have any differential 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 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.

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

The changes due to transfer from Radio Frequency to GPS 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 differential impact on individuals because of their being pregnant, however in some cases Reasonable adjustments may be made.

Reasonable adjustments

In the rare circumstances where a decision may be considered to look to apply GPS EM 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 - 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 advise on next steps.

Testing of the equipment has shown that the signals generated by the tags should not interfere with routine medical equipment as the output of the tags is just the same as a mobile phone. Therefore, where a mobile phone is permitted, it would be reasonable to assume that the tags will be ok. However, if a medical practitioner is of the opinion that the tag should be removed, before any emergency medical procedure or investigation is conducted, they may cut it off.

We therefore consider that this policy does not result in Indirect discrimination with regards to this protected characteristic.

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, as is the cohort of people subject to deportation proceedings, or a deportation order. 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 transfer a person to GPS monitoring 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 sex as a result of this policy change.

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, and those considered for EM outside of the duty is fluid and is influenced by the volumes of each nationality within the community, as well as levels of criminality and compliance immigration control within those nationalities. In 2020 1,808 deportation orders were obtained for Foreign National Offenders from a total of 97 countries. Of those countries 4 accounted for 1,086 of those deportation orders whilst the top 10 countries accounted for 1,294 orders. 9 of the top 10 countries are European. 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 3]}. However, it will be the actions of the individual which led them to be subject to deportation or removal, and therefore GPS electronic monitoring rather than their nationality that is the determining factor. Once the individual is identified as being subject to the duty to electronically monitor them, or considered for EM outside of the duty, 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 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 of the expected standards of behaviour in their dealings with those that they may come into contact with in their daily jobs and 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 service as and when required.

There are no apparent potential issues with the use of GPS devices being discriminatory in terms of people’s race. The collection and storage of data related to EM is subject to the General Data Processing Regulations and a Data Protection Internal Assessment is in place. GPS based EM devices collect data on a person’s movements known as trial monitoring and this is stored at system level against a personal identification number. The system will also record a person’s name, nationality, date of birth, gender and address separately. When a person breaches the conditions linked to their EM a notification is generated and shared with the Home Office to consider what action is required. The Home Office may also request a person’s trail data where there is reason to believe they have breached another bail condition, or the data will help establish whether a claim under Article 8 of the Human Rights Act is genuine. Anonymised data may also be requested to identify trends and how to improve the use of EM but in such instances this data would have no reference to race/nationality.

Following the considerations above, it is likely that the use of GPS tags alongside commencement of the duty 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 immigration bail, deportation proceedings or a deportation order may be placed on GPS 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 to apply discretion on the application of EM, and therefore GPS monitoring, 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 immigration bail, deportation proceedings or a deportation order broken down by religion or belief. The cohort of people subject to both immigration bail and 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. Advice from HMPPS Chaplaincy is that where a devout man expresses an objection to having his tag fitted by a female member of staff then arrangement should be made for a male member of staff to carry out the fitting. For devout women arrangements will be made to identify them and fit the device in a manner that is respectful of their beliefs and wishes.

The equipment should not interfere with religious observance. The identity of the person to be monitored needs to be confirmed before the equipment can be fitted. Staff will be sensitive to those wearing religious clothing and the contractor is required to have agreed protocols in place to manage these situations sensitively and appropriately.

Any claim that the device will interfere with religious observance will be considered in line with ECHR and practicality, and where relevant advice may be sought on the claimed impacted religious practice.

There are no apparent potential issues with the use of GPS devices being discriminatory in terms of people’s religion or belief. The Home Office does not collect data on a person’s religion in all cases and where it is collected as information directly relevant to a person’s claim to remain in the UK it is not in a searchable/reportable format. Information relating to religious beliefs is not recorded as part of their EM related records.

We consider that any Indirect discrimination arising from the transition to GPS 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, including electronic monitoring.

Direct discrimination

The immigration bail guidance applies equally to all persons, regardless of their gender. Decisions to apply electronic monitoring as a condition of bail 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 GPS electronic monitoring than females. The EM duty applies primarily (although not solely) to Foreign National Offenders, and the guidance states where the duty does not apply EM is more likely to be appropriate as a condition of bail where a person poses a high risk of harm to the public on the basis of criminality and/or in cases concerning national security. 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 4]}. The final decision on whether electronic monitoring is applied as a condition of bail 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.

As with young people there is the potential for some women and men to have smaller body frames and limbs to be unable to wear a tag on their ankle. To this end the tags have been specified to be as small, light and unobtrusive as practicable when worn on the ankle. If it is not possible to fit the equipment the notifying organisation will be informed.

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.

There are no apparent potential issues with the use of GPS devices being discriminatory in terms of the sex of a person. The collection and storage of data related to EM is subject to the General Data Processing Regulations and a Data Protection Internal Assessment is in place. GPS based EM devices collect data on a person’s movements known as trial monitoring and this is stored at system level against a personal identification number. The system will also record a person’s name, nationality, date of birth, gender and address separately. When a person breaches the conditions linked to their EM a notification is generated and shared with the Home Office to consider what action is required. The Home Office may also request a person’s trail data where there is reason to believe they have breached another bail condition, or the data will help establish whether a claim under Article 8 of the Human Rights Act is genuine. Anonymised data may also be requested to identify trends and how to improve the use of EM but in such instances this data would have no reference to a person’s gender.

The legislation and Home Office immigration bail policy are not gender specific and allow for the consideration of whether the equipment would not be practical for fitting to those of a smaller frame.

Sexual orientation

A person’s sexual orientation is not included as a specific factor when considering whether electronic monitoring should be applied.

Direct discrimination

The immigration bail policy and transition to GPS monitoring applies equally to all individuals 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 transition from Radio Frequency to GPS would have any differential impact on individuals because of their sexual orientation and 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.

There are no apparent potential issues with the use of GPS devices being discriminatory in terms of people’s sexual orientation. We do not collect data on a person’s sexual orientation in all cases and where it is collected as information directly relevant to a person’s claim to remain in the UK it is not in a searchable/reportable format.

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

[Please consider if there is evidence that different groups have different needs which are relevant to the policy/service/decision? Does the proposal meet those needs?]

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.

Data collected through a GPS device will only be accessed as outlined in part 1, this is supported by a data protection impact assessment. Data is available on request by the monitored person. Whilst the volume of data is different from that acquired through radio frequency monitoring the collection there are no variations of data collected as a result of any characteristics.

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 concerning applying GPS monitoring, consideration must be given as to whether these needs would mean EM 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 GPS electronic monitoring.

Maternity and pregnancy

Maternity and pregnancy may raise additional needs for persons who may be considered for GPS monitoring. When making a decision on whether a person should have an electronic monitoring condition applied and therefore be GPS monitored, or to 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.

Conclusion

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 placed on GPS electronic monitoring. This has not changed from the limitations which may have been caused by Radio Frequency monitoring. Due to the expectation that there will be less use of curfews, it is considered the limitations on involvement in public life are reduced due to GPS monitoring. This restriction is inherent to the nature of immigration bail and will apply to any person subject to immigration control 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

[Consider how is this policy/service/decision going to be received by people who do not benefit from it? Is it likely to be perceived as favouritism/ discrimination even if it is not? Will the policy /service/decision cause people to “blame” another group for causing a problem/benefiting unfairly?]

• We do not foresee this 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.

Electronic monitoring GPS devices and processes are designed to be as unobtrusive as possible to minimise others being aware that a person is being monitored. Furthermore, the use of electronic monitoring as a condition of immigration bail is limited to a very tightly defined group who will have different but possibly overlapping characteristics. This group is not altered by the use of GPS rather than radio frequency devices. As a result, it is not expected that the application of this decision to use GPS devices as standard will actively foster good relations.

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 changes to immigration bail policy or concerning the management of 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. There is discretion to not apply GPS electronic monitoring where it is impractical or a breach of rights under ECHR and consideration of this can include where they suffer from a disability, 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, is 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 changes to 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 beliefs, and as such this change may disproportionately affect some religions more than others.	This is inherent to the introduction of any changes to 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 disproportional impact is inherent to the introduction of any changes to immigration bail or the management of 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?

[Use this section to provide further information on mitigations as required]

Any negative impact on the consistent treatment of those with a protected characteristic is as a result of a nuanced consideration of personal circumstances in order to ensure that the use of EM is proportionate and justified in all cases and shows no bias towards any protected characteristic.

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:

• A DPIA will be in place and will clearly set out how any data collected through EM will be stored and may be accessed/used. Those individuals subject to EM will be advised when their data may be used and how they can access their data.

• The bail guidance will be comprehensive and clear. The final decision on whether to apply GPS monitoring as a condition of bail, whether the duty applies or whether it is being considered for a person outside the duty, will be based on the individuals circumstances of the person. This includes the impact of the us of EM the individuals Convention rights, practicality, the impact on any medical conditions – both physical and mental, impact on Article 8 rights. A person’s compliance with immigration control including any previous immigration bail conditions will also be a deciding factor.

• 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 be placed on GPS electronic monitoring 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 and the use of data through GPS. 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.

• Electronic monitoring conditions are reviewed on a quarterly basis. 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 - a person can also make representations at any point whilst wearing a tag and those representations will be considered promptly.

• Any data that is gathered from the GPS 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 of these 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.

6. Review date

March 2023

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: K Dunning

Directorate/Unit: Foreign National Offenders Command, Immigration Enforcement, Home Office

Lead contact: Glynnis Walford

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: 21/03/2022

1. www.bailii.org/ew/cases/EWCA/Civ/2016/409.html ↩

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

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

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