Following a further legal challenge against the UK government’s controversial ‘immigration exemption’ from the Data Protection Act 2018, the Court of Appeal has ruled that the exemption was unlawful. Further hearings will now take place to determine what remedies must be put in place.
In January, Workpermit.com reported that the UK immigration exemption from the Data Protection Act would be challenged by human rights’ groups. The case was heard on 23 February 2021 with the Court of Appeal overturning a High Court decision made in the summer of 2019.
Under the UK immigration exemption, found in Schedule 2 of the Data Protection Act (DPA) 18, the Home Office, along with other organisations involved in ‘immigration control’, could deny access to personal data held about individuals if it might ‘prejudice the maintenance of effective UK immigration control’.
Exemption too broad
In the High Court case in 2019, digital campaigning organisation Open Rights Group (ORG), along with the3million, which represents EU citizens living in the UK, argued that the exemption was ‘too broad’ and undermined the European Union’s (EU) General Data Protection Regulation (GDPR) implemented on 25 May 2018.
The campaign groups also argued that the UK immigration exemption violated the Charter of Fundamental Rights.
The exemption, the first of its kind in 20 years of UK data protection law, not only affects EU citizens but any individual who has any dealings with an organisation or body that is involved in administering ‘immigration controls’. This includes people seeking refuge in the UK or those affected by the Windrush scandal.
While the High Court rejected the human rights’ groups arguments and ruled the exemption lawful, the appeal in February was heard by three judges who unanimously overturned the previous ruling on 2 June 2021.
Immigration policymaker at ORG, Sahdya Darr, said: “This is a momentous day. The Court of Appeal has recognised that the Immigration Exemption drives a huge hole through data protection law, allowing the government to restrict access to information that may be being used to deny people their rights.”
“If the government holds information about you, it should only be in the most exceptional circumstances that it is denied to you, such as during a criminal investigation,” Darr added.
Darr went on to say that: “The treatment of immigrants as criminals and suspects is simply wrong. The suffering of the Windrush generation shows that Home Office use of data is poor. The court has found that proper safeguards should be put in place to help prevent future abuses and to ensure that people are treated fairly and lawfully.”
The three judges presiding over the appeal case, Lord Justices Underhill, Singh and Warby said that it was clear that the UK immigration exemption is ‘non-compliant with Article 23 of GDPR’.
The trio said: “It is an unauthorised derogation from the fundamental rights conferred by the GDPR, and therefore incompatible...For that reason, it is unlawful.”
Under Article 23 of GDPR, it is stated that ‘any derogation from the regulation must be done in accordance with legislative measures. These measures must set out a number of specific provisions’.
According to Darr, the government now has until 9 June to apply to the Court of Appeal to appeal to the Supreme Court.
Darr said: “It’s expected that any such application will be considered alongside relief at the hearing. If the Court of Appeal refuses permission to appeal, the government then has the opportunity to make an application to the Supreme Court directly, which must be done within 28 days.”
“Regardless of whether an appeal is sought or not, the question of relief will be decided at the hearing to take place sometime in the summer. If the government does not appeal, then all that’s left is for us to prepare for the relief hearing,” Darr added.
Amid the case, it was revealed that the government has used the data clause to refuse individuals access to some or all of the information held about them in 60% of UK immigration-related cases.
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