Emily Foster

7 October 2019

Earlier this month, interest groups lost a legal challenge to the Immigration Exemption in the Data Protection Act. The exemption prevents individuals from requesting information about their immigration case, which not only jeopardises their right to reside in the UK, but also violates data protection standards.

Data regulation in immigration law
The Data Protection Act is the law that transposes the European rules relating to data protection (the General Data Protection Regulation, GDPR) into UK law. These rules not only protect the processing of the data of individuals, but also allow people to request access to their data when a body is processing it. This is necessary to avoid situations where organisations hold and share personal information belonging to individuals, without the individual’s knowledge or ability to challenge this. The European regulations allow for certain deviations from these rights, but only under limited circumstances.

When Parliament enacted the domestic Data Protection Act, the British government took advantage of these exemptions to argue that it can refuse subject access requests relating to individuals’ immigration cases because it would otherwise prejudice “the maintenance of effective immigration control” or “the investigation or detection of activities that would undermine the maintenance of effective immigration control”.

Stakes in restricting access to immigration data
With more than half of all immigration appeals being allowed, it is easy to see that the Home Office makes numerous mistakes when making decisions on migrants’ applications. The success of appeals often hinges on being able to obtain Home Office data relating to the appellant to show just where the Home Office went wrong when making the decision.

The restriction to the right to access their immigration data has therefore had serious consequences and violates migrants’ rights.

Furthermore, as the chief inspector of borders and immigration has reported a 10% error rate in immigration status checks, a very large number of people will be left without means to challenge incorrect immigration decisions. This is already a reality, as reportedly 60% of subject access requests have been denied in 2019 on this new immigration exemption ground. The amount of people affected by this exemption is also exponentially increasing, as it also applies to the millions of European citizens currently applying under the EU Settlement Scheme.

Legality of the restriction
The current wording of the exemption is problematic. The phrasing “the maintenance of effective immigration control”, is very broad and allows any data controller to reject individuals’ access to crucial data needed to challenge wrongful immigration decisions. As the Act delegates too much discretion to the Home Office to deny people their data protection rights, it creates the risk that this vaguely described exemption is arbitrarily invoked.

Precisely because the Immigration Exemption has not been formulated carefully enough to protect individual’s rights as well, as the European rules and human rights law demand, interest groups have challenged it in court. Unfortunately, the3million and Open Rights Group lost their case in the High Court earlier this month. Many of their arguments came down to the fact that the exemption is described in exceedingly broad terms and that it does not respect the principles of proportionality and necessity, which must be respected when curtailing the rights of individuals. Mr Justice Supperstone, however, did not agree and was satisfied with the degree of clarity of the exemption.

The3million and Open Rights Group have already lodged an appeal to the Court of Appeal in an attempt to overturn the earlier decision.

We hope the Court of Appeal will be open to the serious objections raised against this exemption, as it may jeopardise the rights of tens of thousands to remain in the UK.