Equality impact assessment: GPS electronic monitoring expansion pilot | Panda Anku

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 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

As part of the wider response to tackling illegal migration, the Home Office will pilot the use of electronic monitoring (EM) as a condition of immigration bail for those who make illegal and dangerous journeys to the UK. The pilot size will be up to 600 asylum seekers who are subject to EM and 600 further asylum seekers who form part of a control group.

This Pilot will examine the impact of EM on compliance with immigration bail and the asylum process. At the end of the pilot, recommendations will be made regarding the efficacy of using EM as a means to improve and maintain regular contact management with asylum claimants who arrive in the UK via illegal and dangerous routes in order to progress their case. We will also be able to test the rate of absconding and obtain data on how frequently this happens, as well as developing a greater understanding of the stages in the process it is likely to occur and establish if electronic monitoring and associated improvements in contact management prevent absconding. If anyone does abscond and therefore breaches their conditions of bail, we will also be able to test whether we are able to use this knowledge to more effectively re-establish contact with individuals or locate them for removal or detention if appropriate in their case.

Those selected for EM will all have made an illegal and dangerous journey to the UK, are being placed on immigration bail and will fall into one or more of the following groups:

  • potentially inadmissible (including those who will transfer to Rwanda under the new partnership agreement)
  • those suitable for consideration under the Detained Asylum Casework (DAC) process and
  • failed asylum seekers (FAS)

It will not include:

  • under 18s or those claiming to be under 18 who do not appear to be significantly above that age
  • pregnant women from week 18 of the pregnancy to 3 months post-partum
  • any person who has been detained under the Mental Health Act 1983 and who remains subject to a supervision order

An EM service is not currently available to the Home Office in Scotland or Northern Ireland. While that remains the case, those who will be accommodated in either jurisdiction will not be included in the pilot. However, should an EM Service become available, individuals accommodated in that jurisdiction will become eligible for inclusion in the pilot.

The control group will be selected using the same factors indicated above. This group will not be subject to electronic monitoring but may be subject to a reporting requirement as a metric by which to measure compliance with immigration bail conditions.

Immigration bail – electronic monitoring condition

Schedule 10 to the Immigration Act 2016 provides the power to grant immigration bail to someone who is liable to detention. Bail must be granted subject to at least one condition of bail, these are set out in Paragraph 2(1) of Schedule 10, which includes an electronic monitoring condition.

In recent years electronic monitoring has primarily been used for the contact management of Foreign National Offenders although legislation allows for its use for others placed on immigration bail. The use of electronic monitoring as a condition of immigration bail has been included in immigration legislation since 2004 and 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.

EM has previously been used to monitor asylum seekers but used Radio Frequency technology. To be effective Radio Frequency devices require the imposition of a curfew. This required a Home Monitoring Unit to be placed in the persons place of abode and it was necessary for the householder to agree to the installation of both this unit and broadband internet connection. This permission was often declined and as a result fell out of use. The EM devices now used by the Home Office rely on GPS technology and are fitted securely to the ankle. These devices have the capability to monitor curfews, inclusion zones and exclusion zones but it is not necessary to do so or to install a home monitoring unit unless the circumstances of the case warrant it.

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 and 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. The expansion to GPS tracking mirrors those circumstances in which data can be accessed. Those circumstances are:

  • where a person breaches immigration bail conditions
  • where a person absconds from immigration bail
  • where a legitimate and specific request is made for access to specific data by a Law Enforcement Agency
  • where article 8 Representations or further submissions are made and where access to the data is directly relevant to the claim being made
  • intelligence of a breach of bail has been received
  • 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 that Home Office will share that data with the relevant body.

Consideration of application of the EM condition

The existing immigration bail policy indicates that before imposing an electronic monitoring condition, representations must be requested from the individual in regard to applying the condition, which they have 3 working days to respond to if they are detained, or 10 working days from a position of liberty. In most cases where the electronic monitoring condition is being considered for application the person will already be in immigration detention or on immigration bail, providing this timeframe where representations can be sought and considered before a decision on applying the condition is made.

Rather than set criteria for who will be included, the pilot team will select who falls to be included in the pilot by taking the first 600 from the groups outlined below.

  • those suitable for consideration under the Detained Asylum Casework (DAC) process
  • those being considered for removal under inadmissibility processes
  • failed asylum seekers (FAS)

The control group will be selected in the same manner.

Discrimination may occur based on the date on which a person becomes subject to immigration bail. For practicality reasons a date from which the pilot will commence will be set out in the interim operating instruction. The date on which a person is placed on immigration bail is not a protected characteristic.

Guidance will be developed and published for the purpose of the pilot to ensure that those making decisions on applying electronic monitoring to this cohort are aware of the process and particular considerations which will need to be taken into account in the decision-making process.

At the end of the pilot, recommendations will be made regarding the efficacy of using EM as a condition of bail for those awaiting an asylum decision and/or following a negative decision.

The Home Office is committed to implementing this pilot in a way which promotes equality, respects diversity and takes into account the needs of people with protected characteristics. The intention is that this pilot 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.

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:

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. The primary focus of these was in relation to the management of offenders. 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. These fora did examine the use of electronic monitoring outside of the offender management sphere.

Outside of examining the experiences within the UK, the Home Office have built a strong relationship with US Immigration and Citizenship Enforcement. There has been sight of data and analysis gained through the transition from radio frequency to GPS technology and discussions about the management of electronic monitoring within an immigration setting with both US and Canadian immigration colleagues. The US system was introduced in order to improve contact management with asylum seekers (primarily those arriving at the US/Mexican border) who had a poor record of attending their asylum appeal hearing and therefore preventing their asylum claim to be brought to conclusion. The introduction of electronic monitoring had a significant impact in this compliance.

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

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.

The majority of those arriving in the UK having undertaken an illegal and dangerous journey between January and September 2021 were aged between 18 and 39, therefore people within this age group are most likely to be subject to electronic monitoring than other age groups.

Direct Discrimination – The Home Office is prohibited from using electronic monitoring as a condition of immigration bail on those under the age of 18. 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. Although only persons over the age of 18 will be considered for the pilot, we do not consider that direct discrimination on the basis of age arises with regards to the pilot as decisions to apply electronic monitoring as a condition of bail are not made based on age.

Indirect Discrimination – Due to the average age of people who are arriving via illegal and dangerous means being aged between 18 and 39, it is possible that there may be some indirect discrimination with younger adults more impacted. Where a person is over 18, age in itself does not automatically mean the person will be electronically monitored, neither is it a barrier to electronic monitoring. Age could be an additional factor when considering suitability of electronic monitoring in the individual circumstances, for example where there is a medical condition which may make electronic monitoring impractical, but it is not an explicit factor for consideration.

Section 55 considerations

Considerations have been made to the ‘best interests of children’, in regard to this pilot. 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

(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 will not be directly impacted by the pilot, 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 electronic monitoring as a condition of that bail, 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 pilot would lead to a greater level of indirect impact upon those aged between 18 and 39, however any policy on persons entering the UK via illegal and dangerous routes would disproportionately impact on this age group. 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 maintaining contact with those who are on immigration bail pending an outcome to their protection claim.

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 or hold data on the number of individuals arriving via illegal and dangerous journeys, broken down by disability as defined by the Equality Act 2010.

Direct Discrimination – Current legislation provides for electronic monitoring to be a condition of bail for anyone who is liable to be detained – which includes those who arrive via illegal and dangerous journeys. This pilot will not select participants based on any protected characteristic. We do not consider that direct discrimination arises as a consequence of this change, with regards to this protected characteristic.

Indirect Discrimination – Persons who have a disability and fall within the cohorts could be negatively impacted by the pilot however, all decisions to apply EM as a condition of bail must take into consideration of 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.

We accept that where a person is subject to the pilot and they have a disability, reasonable adjustments may need to be made on account of that disability. 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 for the person to be subject to an EM bail condition. Those with disabilities that prevent them from being tagged or complying with electronic monitoring requirements should not have such conditions imposed. Full consideration of the adjustments that can be made regarding the devices is contained in the transfer from radio frequency to GPS tagging EIA.

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

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 inclusion within the pilot.

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 arriving in the UK having undertaken illegal and dangerous journeys 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 – Current legislation provides for electronic monitoring to be a condition of bail including those who are awaiting a decision to be formally admitted to the UK. This pilot will not select participants based on any protected characteristic.  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 pilot would have a disproportionate negative impact on this particular group when compared with others who could be selected for the pilot. Therefore, we do not consider that any indirect discrimination arises with regards to this protected characteristic.

Reasonable adjustments will be made in consideration of the person’s gender where it is appropriate. 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 pilot applies equally to all individuals arrive in the UK via illegal and dangerous journeys 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 this pilot.

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 who arrive in the UK via illegal and dangerous routes. There are no apparent potential issues on this characteristic due to the pilot, the immigration bail policy applies equally to all individuals regardless of their marital status.

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.

Indirect Discrimination – There is no evidence to suggest that the policy 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. There is nothing within the policy that prevents a person from being subject to bail due to pregnancy or maternity.

Direct Discrimination – There is guidance within the policy for circumstances where a pregnant person may be included within the pilot, as EM may not be suitable or a breach of their rights under ECHR. This is explicitly considered where a person is 18 weeks or more pregnant or is up to 3 months post-partum. However, these considerations are not extensive, and the individual facts of the case must be considered. It should be noted that pregnancy does also not always mean EM cannot be applied. 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.

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.

In the rare circumstances where a decision is made to apply an EM condition to a person within the cohort 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, and the limitations of the equipment will be considered as part of the decision on whether it is practical to apply EM as a condition of bail. Full consideration of the adjustments that can be made regarding the devices where the person is pregnant is contained in the transfer from radio frequency to GPS tagging EIA.

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 pilot will apply equally to all persons, regardless of their race. Decisions to apply EM in line with the pilot, where a person falls within a pilot cohort, 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 this policy change.

Indirect Discrimination – It is acknowledged that certain nationalities may be more likely to be subject to electronic monitoring. It will be influenced by the volumes of each nationality arriving via illegal and dangerous routes. Data for those arriving by all illegal and dangerous routes is not currently available. However, In 2021 (up to September) those arriving by small boat were from a total of 54 countries. Of those countries 5 had arrivals in excess of 1,000 and accounted for 73.7%. A further 9 countries had arrivals in excess of 100 and accounted for a further 18.1% of arrivals. The remaining 40 countries had arrivals of less than 100 and accounted to just 8.2% of total arrivals.

Whilst a person’s nationality and therefore likelihood of being included in the selected casework processes may mean more people of certain nationalities than others fall within the pilot, the method of selection for inclusion will not target nationalities directly. Once the individual is identified for inclusion in the pilot 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 within 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 persons on immigration bail 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 peoples’ race. Following the considerations above, it is likely that the pilot 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 maintaining contact with those who are on immigration bail pending an outcome to their protection claim.

Religion or belief

Immigration bail policy does not prescribe, or exclude, individuals from immigration bail by virtue of their religion or belief. The pilot will apply in the same way. Any individual who falls within the pilot cohort may in be placed on EM as a condition of bail 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 – Where a person falls within the pilot cohort, decisions about whether to impose EM will not be influenced by a person’s religion or belief. 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 seeking asylum or arriving via illegal and dangerous routes broken down by religion or belief. The cohort of people to be included within the pilot is made up of non-UK nationals with no current formal 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 adjustments to allow them to practise their religion whilst on EM, and that they would be disproportionately disadvantaged if these adjustments were not put in place.

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. Arrangements will be made to fit the device in a manner that is respectful of beliefs and wishes. Full consideration of the reasonable adjustments that can be made regarding the devices is contained in the transfer from radio frequency to GPS tagging EIA.

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

We consider that any indirect discrimination arising from the pilot 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 immigration bail policy do not exclude any persons from being subject to bail, or any of the conditions of bail by virtue of their sex – all genders are equally eligible for bail and all conditions of bail. This pilot will follow the same framework.

Direct Discrimination – The pilot guidance will apply equally to all persons, regardless of their gender. Decisions to apply discretion where a person falls within the pilot cohort 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 because statistically more males than females arrive via illegal and dangerous routes. In 2021 (up to September) 87.8% of those who arrived via illegal and dangerous routes were male. Since data on arrivals of this kind have been recorded, male arrivals are consistently above 80% of all arrivals. The final decision on whether there is an exemption from applying EM will be determined on a case by case basis, examining personal circumstances, but sex will not be a determining factor within this consideration.

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.

The relevant 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

Schedule 10 to the Immigration Act 2016, and immigration bail policy do not exclude any persons from being subject to bail, or any of the conditions of bail by virtue of their sexual orientation. This will be the same for the pilot.

Direct Discrimination – The pilot will apply equally to all individuals who fall within the identified cohorts 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 selection process for the pilot will not consider sexual orientation. It is not a factor which is identified and recorded unless it has a direct bearing on the person’s claim/application. Where it is recorded it is not in such a way that data can be extracted based upon that factor, it is not possible therefore to draw any likely conclusions as to the impact of the policy change. There is no evidence to suggest that the pilot 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.

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
  • 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

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 representation against electronic monitoring conditions. This includes (where it is practical) the active invitation of representations prior to tagging as part of the consideration process.  Where it has been established that there is no disproportionate breach of Convention rights in an individual case any decision will be based on a queue-based decision e.g. the first 150 released on immigration bail whose case is managed by the Detained Asylum Casework team.

The selection of individuals to be included within the pilot will not be 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.

Age – The Home Office is prohibited from using electronic monitoring as a condition of immigration bail on those under the age of 18. 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. For those over 18 years of age, it is possible that an age-related physical or mental medical condition may require additional support, for which reasonable adjustments must be considered. This is particularly true of those aged 66 or older.

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 for example literature in accessible formats or reasonable adjustments. When making a decision on whether to apply EM as a condition of bail, 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 this pilot.

Maternity and Pregnancy – Maternity and pregnancy may raise additional needs for persons who fall within the pilot cohort. When making a decision on whether to apply or cease electronic monitoring as a condition of bail, consideration must be given as to whether these needs would mean electronic monitoring is a breach of Convention Rights or is impractical.

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

Religion or Belief – We do not foresee any particular needs or disadvantages as a result of an individual’s sex relating to this pilot.

Sex – We do not foresee any particular needs or disadvantages as a result of an individual’s sex relating to this pilot.

Sexual Orientation – We do not foresee individuals of any particular sexual orientation having specific needs relating to this pilot.

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 fall within the pilot cohort and are 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

Where possible policies should set out to preserve/build positive relations between individuals that share protected characteristics. The use of electronic monitoring as a condition of immigration bail is limited to a small group who will have different but possibly overlapping characteristics. It is therefore not expected that good relationships will be fostered between those who share a characteristic within the pilot group or with those who are not part of the pilot purely as a result of the pilot.

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.

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 Electronic monitoring cannot be imposed as a condition of immigration bail on anyone under the age of 18. This pilot group will therefore not contain any individuals who are under 18 or those who claim to be under 18 and who do not appear to be significantly older than 18. There is no legislative bar on imposing electronic monitoring as a condition of bail for those aged 66 or over and there is nothing within the scope of the pilot to limit its use within that age group. However those within this age group are more likely to suffer with physical or cognitive medical issues which could either be exacerbated by its imposition or hinder compliance with the immigration bail condition. The relatively low volume of over 66s arriving via illegal and dangerous routes significantly reduces the probability of an individual in this age bracket being selected for the pilot. Where it is clear that there could be a significant impact on a person’s health or their health gives significant rise to question their ability to comply with immigration bail it will not be suitable to electronically monitor them but consideration can be given to including them within the control group.
Disability Yes Where a person has a significant medical condition (which may also meet the definition of a disability), their case will typically be referred to the Kent Intake Unit and thus will be excluded from the pilot. However, there may be individuals who are not referred to KIU in such a manner. Consideration will be given to whether there is any evidence to suggest that electronic monitoring could have a negative impact on any medical condition (including those which meet the definition of a disability). Where there is strong reason to believe that a detrimental physical or mental impact form the imposition of electronic monitoring; or where the person does not have the capacity to comply with the related immigration bail conditions it will not be suitable to impose electronic monitoring. It may however, still be appropriate to include such an individual in the control group.
Gender Reassignment No There is no perceived impact on those who share this protected characteristic. The devices which will be used to monitor individuals are designed to be worn by those of differing builds. if the order to monitor indicates that the person to be monitored identifies as 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.  
Marriage and Civil Partnership No There are no apparent impacts on individuals as a result of them having this protected characteristic.  
Pregnancy and Maternity Yes From the week 18 of a pregnancy a woman may experience oedema primarily in the ankle where the electronic monitoring device would be worn. Following the birth of a child a woman may continue to experience some conditions linked to pregnancy and any swelling to the ankles may take a while to recede. This may make the device tight on the ankle causing pain and in severe cases limit blood flow to the foot. In addition, in the early week after delivery the mother may continue to have physical examinations by a medical practitioner. Whilst the fitting of a device does allow for slight changes it would not accommodate sudden or significant swelling. The use of electronic monitoring for pregnant females is not recommended from week 18 of the pregnancy. In such circumstances it is likely to be obvious that the woman is subject to electronic monitoring although not the reason why. As a result it is not recommended to impose electronic monitoring until 3 months post-partum.
Race No There is no evidence to suggest that within this pilot a person of one particular race or nationality would be subject to any greater or lesser impact than a person of another race or nationality.  
Religion or Belief Yes There is no evidence to suggest that the wearing of an electronic monitoring device impacts the ability of the wearer to undertake their usual religious observance. There may be an impact on a person in relation to who fits a device on them and how that impacts with their religious observance. It is usual practice for a female officer to fit a device to a woman/a person identifying as female. Whilst a male or female officer may fit a device to a man/person identifying as male. However, where there is an indication that a female fitting a device on a male would interfere with their religious belief a male officer will be schedule to fit the device.
Sex No As a direct result of the higher volumes of males who arrive in the UK via illegal and dangerous routesa male is more likely to be included within this pilot. However, there is no reason to believe that the use of electronic monitoring will have a greater or lesser impact based on the individual’s sex.  
Sexual Orientation No There is no evidence to suggest that a individuals sexual orientation will be impacted by the imposition of an electronic monitoring device.  

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?

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:

Consideration of whether the EM condition will be applied to individuals who fall within the pilot cohort 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, impact on Article 8 rights. A person’s compliance with immigration control will also be a deciding factor.

Decision makers will be required to attend a training course regarding the pilot and the way in which it is being implemented. They will also be required to undergo e-learning on how to task and record events on ATLAS. This training will be supplemented by an interim operating instruction. There is an established enquiry hotline for questions from staff and frequently asked questions are circulated through normal communications channels.

Those who are included within the pilot and are electronically monitored will be provided with information leaflets. It is planned to offer this leaflet in a range of languages. These will include explaining how the data generated by trail monitoring may be accesses/used and how to lodge representations against the use of electronic monitoring.

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.

6. Review date

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: Matt Bligh

Directorate/Unit: Enforcement and Criminality Policy Unit

Lead contact: Adrian Duffy

Date: 08 June 2022

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

Date sent to PSED Team: 29 June 2022

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