Some of the best Immigration Solicitors in the UK, along with Open Rights Group (ORG) and the3million, which represents EU citizens living in the UK have taken a challenge to the ‘immigration exemption’ in the Data Protection Act 2018 to the Court of Appeal.
In October 2019, the High Court ruled that the ‘immigration exemption’ was lawful. In February 2021, the Court of Appeal hearing took place, and we are currently awaiting the decision.
Aside from Immigration Lawyers and Home Office officials, few people have heard of the ‘immigration exemption’. So why is it subject to a court challenge?
Article 15 of the GDPR outlines the right of data subjects to access their personal information. It states:
“The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data”.
When someone requests access to their personal data that is held by a public or private body or
a charity, it is known as a Subject Access Request (SAR).
The ‘immigration exemption’ which is contained in schedule 2 of the Data Protection Act 2018, allows the Home Office and other organisations involved in ‘immigration control’ to refuse SARs if providing access to personal data might “prejudice the maintenance of effective immigration control”.
The ORG and the3million brought a Judicial Review claiming that the ‘immigration exemption’ was too broad. They argued that the exemption is unlawful because it amounts to unnecessary and disproportionate interference with fundamental data protection rights.
The High Court rejected the Claimants’ arguments. Mr Justice Supperstone concluded the immigration exemption was a matter of important public interest and pursued a legitimate aim. The issue before the Court was what was legally required where, as with the ‘immigration exemption’, the legislation did not itself interfere with people’s data rights, but instead made abstract provision for an exemption which data controllers could rely on if the circumstances of a particular matter meant it was justifiable to do so. The Court held that the immigration exemption satisfied the requirements for a measure to be “in accordance with law”, given the fact it was non-ambiguous.
Following the High Court decision, the ORG and the3million said
“We are disappointed by the judgement in the High Court today and we have applied for permission to appeal.
“We still believe that the immigration exemption in the Data Protection Act 2018 as it stands breaches fundamental rights. It is a blunt instrument, poorly defined and ripe for abuse. Access to data is key for an accountable system, that corrects errors in an immigration system that occur at an alarming rate. The importance of this can’t be underestimated. Millions of EU citizens must navigate the Home Office application process to stay in the UK. This exemption removes that ability to correct errors, which could prove decisive in immigration decisions whether to allow a person to remain in the United Kingdom.
“As a result of this litigation we know the exemption is being used and is being used often. Open Rights Group and the3million will continue the fight against the immigration exemption, seeking an immigration system and data protection framework that respects the rights of everyone.”
The ‘immigration exemption’ has been a contentious provision ever since it was inserted into the Data Protection Act 2018, especially given that it was not present in the 1998 version of the Act. It was noted in the judgment that of around 18,000 SAR’ received in the first year following the coming into force of the Data Protection Act 2018, the ‘immigration exemption’ was depended on to avoid disclosure in 59% of cases. Therefore, a decision to rule it unlawful could result in many immigration decisions needing to be reviewed and possible grounds for thousands of pounds in compensation claims.
We will update you as soon as the Court of Appeal decision becomes available.
Based in Birmingham and London, UK Migration Lawyers is one of the best Immigration Solicitors in Britain. If you have any concerns or questions regarding the ‘immigration exemption’ in relation to data protection, please phone our office on 0121 777 7715.
