Campaigners have lost a legal challenge over the “immigration exemption” in the Data Protection Act. The exemption allows government bodies to use personal data without the subjects in question being aware or being given access to it, if it is a matter of “effective immigration control”.

The two organisations that brought the challenge, Open Rights Group, which works for the protection of the rights to privacy and free speech online, and the3million, a group that defends the rights of EU nationals in the UK, intend to appeal the High Court decision.

The Data Protection Act of 2018 transferred into UK law the EU’s General Data Protection Regulation (GDPR), which aims to give individuals more powers over the use of their personal data. Under the GDPR, data have to processed in a transparent manner and people have the right to demand access, rectification and erasure of their personal information.

The UK law, however, grants an exemption to state bodies and other organisations for “effective immigration control”.

“This exemption will affect everyone involved in an immigration case who wishes to access their data, for example: those seeking refuge in the UK, those affected by the Windrush scandal, the three million EU citizens who will have to submit their applications for a new immigration status after Brexit,” the groups said in a statement.

The two organisations argued that the exemption reduces instead of giving more rights to individuals. It is also too broad and contrary to the EU Charter of Fundamental Rights, they said in court. Their main concern is that it may prevent individuals from knowing whether authorities have accurate data about them, especially given that the Home Office has a 10% error rate in immigration status checks.

“The consequences of inaccurate data in the context of the government’s ‘hostile environment’ have proven to be catastrophic for individuals, ranging from people being wrongly disqualified from holding bank accounts to wrongfully receiving deportation threats and even being forcibly removed in error. In the immigration context, data protection rights are vital to avoid miscarriages of justice,” said the groups.

On its part, the government says that the exemption aims to protect information from people who could abuse the system. The senior civil servant responsible for the data protection policy at the Home Office explained in court that the exemption could be used if there is a risk of "the data subject being 'tipped off' about potential immigration investigation or enforcement action (such as an intention to arrest and detain for removal).”

It could also be applied in relation to the Home Office work about someone abusing their rights or a sham marriage, and if the erasure of data could “wipe an individual's immigration history and thus prevent the Home Office from considering an individual's case on a proper basis."

At a court hearing in July, it emerged that in the first year of operation of the law, the Home Office received 27,984 requests to access personal data relating to immigration and the exemption was used in 10,823 responses (59% of the cases). But the official said that “only small elements of the overall case file, not the whole set of information” were withheld. She also added that an individual must be told when data has been redacted because of an exemption.

In its ruling on Thursday, the High Court of England and Wales considered the Data Protection Act provisions appropriate and safeguards to remedy errors sufficient. The case was therefore dismissed in full.

Open Rights Group and the3million, however, lodged an 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,” they said.

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Rosa Curling, solicitor at Leigh Day, the legal firm representing the groups, added: “Millions of people are already feeling uncertain and anxious about their immigration status as we approach Brexit and our clients feel that the immigration exemption adds a further layer of uncertainty by removing transparency and the opportunity to correct mistakes in the immigration system.”

Claudia Delpero © all rights reserved.

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