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Challenge to anti-GDPR immigration exemption in DPA to go ahead

Two human rights groups are challenging a controversial clause in new UK data protection legislation that they say is in conflict with the EU’s Charter of Fundamental Rights and undermines the General Data Protection Regulation

Digital campaigning organisation the Open Rights Group and the3million group, representing EU citizens living in the UK, have announced that they are forging ahead with a judicial review challenging an immigration exemption in the Data Protection Act (DPA) 2018.

The announcement comes after the two organisations raised £40,300 through the Crowdjustice crowdfunding platform for legal action.

The immigration exemption in the DPA under Schedule 2, Part 1, paragraph 4 removes fundamental data subject rights if the data controller thinks the disclosure of that data would “prejudice the maintenance of effective immigration control or the investigation or detection of activities that would undermine the maintenance of effective immigration control”.

The DPA is based on the EU’s General Data Protection Regulation (GDPR), which states that everyone, regardless of their nationality or residence, should have their fundamental rights and freedoms protected, in particular their right to the protection of personal data.

However, opponents of the exemption clause, represented by law firm Leigh Day, argue that it will undermine the GDPR, which the DPA was designed to implement by restricting the rights of millions of people across the country.

“The exemption removes the longstanding rights of access to personal data which has been available for decades, with no evidence offered by the government why the exemption is necessary now when it wasn’t in the past,” the groups said in a statement.

They are concerned that the immigration exemption will mean that immigrants to the UK will not have access to data and information on how the government decides on their fate, including their potential deportation, making any defence and legal action against unlawful deportation by the government extremely difficult.

The human rights groups believe that the exemption will apply to a wide range of government and non-government bodies, including the NHS, DVLA, employers, landlords and banks.

“There is no justification for such bodies to be able to derogate from the vast majority of fundamental data protection rights,” they said.

The two groups are calling for the courts to declare the immigration exemption incompatible with the GDPR and the EU’s Charter of Fundamental Rights.

Rosa Curling, a human rights solicitor at Leigh Day, said the Open Rights Group and the3million group had warned the government that if the immigration exemption was written into law, it would be contrary to the GDPR as well as incompatible with EU law generally.

“Unfortunately, the concerns of our clients were ignored and they have been left no option but to launch this legal challenge,” she said.

“It cannot be correct that a two-tier system is created for data rights, distinguishing those who become subject to immigration control from British citizens.”

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Jim Killock, executive director of the Open Rights Group, said that restricting the rights of millions to their personal data in immigration processes risks inaccurate data being used to make life-changing decisions.

“Open Rights Group can’t allow that to pass without challenge,” he said. “The government is trying to avoid necessary accountability, and remove responsibilities to treat people fairly. This challenge aims to keep fairness and accountability in the immigration system.”

Nicolas Hatton, co-founder and co-chair of the3million, said the legal challenge matters to all 3.6 million EU citizens who will have to apply for settled status to stay in their own homes after Brexit.

“No applicant should be prevented from accessing the data the Home Office holds about them,” he said. “This is 2018, not 1984.”

Former Home Office minister, Labour MP Liam Byrne, has recognised the need to build checks and balances into the immigration justice system, but described the immigration exemption in the DPA as a “gratuitous land grab” that he believes should be removed from law.

“The reality is that many of these people [with complicated immigration histories] do not have access to the relevant documents, or an accurate reflection or legal understanding of their circumstances,” he wrote in a blog post. “These concerns are not fanciful – they are very real.”

Byrne, currently shadow digital minister, said these concerns are not just for EU citizens, or just for any newcomer to the UK.

“The exemption is drawn so widely that it could conceivably apply to British citizens related to individuals going through an immigration tribunal,” he wrote.

Byrne believes that while the political attention may be on the Home Office, the exemption would apply to private companies or other public bodies, such as local authorities, that have a role to play in the immigration system.

“The exemption allows data sharing without proper accountability across these different bodies and could potentially affect millions,” he said.

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