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High Court to hear challenge to immigration exemption in DPA

The High Court is to hear a challenge by two human rights groups of a controversial clause in new UK data protection legislation they say is in conflict with the EU’s Charter of Fundamental Rights and undermines the General Data Protection Regulation

A judicial review of the government’s immigration exemption for data protection rights will be heard at the High Court in London from today (23 July 2019) to consider either removing it or restricting its scope.

The legal challenge has been brought by the Open Rights Group digital campaigning organisation and the3million group, representing EU citizens living in the UK. They argue that the immigration exemption, which passed into law in May 2018 as part of the Data Protection Act (DPA) 2018, is unlawful.

The groups announced that they would go ahead with the challenge in August 2018 after they raised £40,300 through the Crowdjustice crowdfunding platform for legal action.

The immigration exemption under Schedule 2, Part 1, paragraph 4 in the DPA allows the Home Office, and other organisations or companies involved in “immigration control”, to refuse access to personal data held about individuals if it might “prejudice 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, 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 immigration exemption affects the three million EU citizens who will have to submit their applications for a new immigration status after Brexit. It also affects anyone who has dealings with the Home Office, other state bodies and several companies who are involved in “immigration control”, such as those seeking refuge in the UK and those impacted by the Windrush scandal.

Unchecked mistakes

By blocking access to data, the groups argue that mistakes by the Home Office will go unchecked, important decisions about an individual’s immigration status could be made based on incorrect or incomplete information – and it could even lead to wrongful deportations.

This is of particular concern, the groups say, given that the Chief Inspector of Borders and Immigration has acknowledged the Home Office has a 10% error rate in immigration status checks.

Both organisations argue that the exemption is unlawful because it amounts to an unlawful, unnecessary and disproportionate interference with fundamental data protection rights.

Matthew Rice, Scotland director at Open Rights Group, said an individual’s fundamental right to data protection includes a right to access information held about that individual.

“The immigration exemption removes that right for millions of people for the vague purpose of effective immigration control. This restriction is available to all data controllers, it could be your school, your doctor, your local authority or your employer that exercise the exemption and restricts your access to your data while continuing to share it with the government for immigration enforcement.

“This is against human rights standards and we are seeking that the exemption is removed, or restricted in its scope. At this crucial time we need an immigration system that treats all parties fairly, this exemption tips the scales too much in favour of the powerful and leaves many powerless.”

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Maike Bohn, co-founder of the3million group said EU citizens will need their personal records to prove that they are entitled to live in the UK.

“They need to know how the Home Office and other government agencies are using those records so they can call out mistakes that could have disastrous consequences for their lives. That is why we support removing this shocking exemption.”

Rosa Curling, solicitor at legal firm Leigh Day, said: “We look forward to presenting this case to the High Court on behalf of our clients.

“The discriminatory, two-tier data protection regime created by our government is unlawful and we hope the Court will agree it must be reconsidered on an urgent basis.

“Individuals must have access to their personal data so they know what information is held about them by the Home Office and others, how this information is being processed and shared and to allow them to correct any errors made. Without access to the data, their right to rectify is meaningless.”

While recognising the need to build checks and balances into the immigration justice system, former Home Office minister, Labour MP Liam Byrne has described the immigration exemption in the DPA as a “gratuitous land grab” that 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 in July 2018. “These concerns are not fanciful – they are very real.” 

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