EU parliament warns about data transfer risks due to UK immigration rules

The European Parliament is concerned about the way personal data of non-UK citizens are processed in Britain and has asked the EU Commission to “carefully assess” British regulations before agreeing to the free flow of data with the EU.

MEPs are especially worried about the immigration exemption included in the UK Data Protection Act, which allows government bodies to use personal records without the subjects in question being aware or being given access to them for the purpose of “effective immigration control”.

“When non-UK citizens’ data are processed under this exemption, they are not protected in the same manner as UK citizens,” MEPs said. They added that the exemption might be “in conflict” with EU rules.

Personal data of EU citizens can flow freely within the EU’s single market and with other countries that are deemed to offer “adequate” protection, as they apply equivalent rules to the EU. At present, the EU has adopted “adequacy decisions” for Andorra, Argentina, the Faroe Islands, Guernsey, Israel, the Isle of Man, Japan, Jersey, New Zealand, Switzerland and Uruguay. For Canada and the USA there are “partial adequacy” decisions.

As the UK has left the EU, the European Commission will decide about the “adequacy” of UK rules too. The decision is expected by the end of the transition period (31 December 2020).

But the European parliament has now instructed the Commission to “carefully assess UK’s data protection legal framework and ensure that the UK has resolved the problems […] prior to considering UK data protection law adequate.”

The request is part of a non-binding resolution approved on Wednesday 12 February. The document outlines the EU parliament position for EU-UK trade talks, ahead of the negotiation mandate defined by the EU Council (representing EU governments) later this month.

During the parliament debate, Dutch MEP Sophie in ’t Veld said: “I do hope that the negotiating team will be as tough [as it has been on environmental and social standards] when it comes to data protection standards because I am quite worried to see the eagerness of the European Commission to issue a so called ‘adequacy decision’ when it is far from clear that the UK government can be trusted with our data.”

Key economic sectors

The Commission decision could have important consequences for the services sectors, such as finance, banking and hospitality, which rely on smooth data flows.

A report published last year by University College London (UCL) reminded that “all internet and software companies transfer data across borders to provide cloud-based services like email, calendar, file storage and social media timelines.”

Among other examples, the report cited a “boutique UK retailer” selling in the EU and moving customer data from a website hosted in Belgium to servers in the UK “in order to process sales.” The UCL study also mentioned the university’s own email system, which “only works because data can be seamlessly transferred from servers in Ireland to servers in the UK.”

“There has been intense political focus on the issue of trade in goods, particularly in regards to the border with Ireland. By comparison, issues relating to data flows and trade in services more broadly have been neglected. This is despite the fact that services comprise 80% of the UK economy, and disruption to EU-UK data flows could be as economically damaging as disruption to trade in goods,” said UCL Research Associate Oliver Patel.

Personal data flows are also important for the prosecution of cross-border crimes and for medical research.

Data protection in the EU

The EU defines personal data as any information relating to an identifiable person, such as name, address, bank accounts, health records, car registrations or photos, the Institute for Government says. The protection of such data is considered a fundamental right of EU citizens (it is covered by the EU’s Charter of Fundamental Rights) and is regulated by the EU General Data Protection Regulation (GDPR).

The UK has turned the GDPR into national law through the 2018 Data Protection Act. However, it has added an exemption on personal data used for immigration control. This is currently being challenged in court by citizens’ rights group the3million.

In a recent statement, UK Prime Minister Boris Johnson said that after Brexit the UK intends to develop “separate and independent policies” in a number of areas, including data protection. “The UK would see the EU’s assessment processes on financial services equivalence and data adequacy as technical and confirmatory of the reality that the UK will be operating exactly the same regulatory frameworks as the EU at the point of exit,” the Prime Minister argued.

A positive decision by the European Commission, however, is not guaranteed. The immigration exemption is one of the obstacles.

The UCL report also lists among EU concerns the UK withdrawal from the EU Charter of Fundamental Rights, which weakens the general protection framework. In addition, the report highlights the potential transfer of data to other countries not deemed to provide sufficient protection, in particular in the context of the intelligence sharing arrangements with Australia, Canada, New Zealand and the US (the “Five Eyes alliance”).

Furthermore, MEP in ’t Veld referenced reports that the UK has illegally copied information from the Schengen Information System, a database with personal records on EU citizens and people travelling in Europe to which the UK has had access as an EU member, even if not part of the border-free Schengen area.

Should the European Commission decide the UK does not offer adequate protection, data flows from the UK to the EU will continue as usual, as the UK does not plan new barriers. Organisations and companies transferring data from the EU to the UK, however, will face additional legal and administrative requirements that are likely to create an extra burden and increase costs.

So while service users in the UK or the EU might not see major differences, this shows how the UK approach to citizens’ rights and immigration will impact the wider economy.

Free movement for UK nationals in the EU

The resolution approved by the European parliament addressed a number of other issues related to the rights of British and EU citizens. MEPs said the continuation of “free movement for UK nationals [already] in the EU based on a reciprocal approach” (i.e. the permanent right to return for EU citizens with settled status in the UK) is a “cornerstone and indivisible part of the text of a future international agreement.”

The future agreement should also consider the rights of UK nationals returning to the UK with non-EU family members, people with disabilities and carers, and third country nationals living in the UK that have strong legal ties with EU member states, MEPs said. “Proper cooperation” in civil and family law matters, especially as regards the repatriation of children, should also continue, according to the resolution.

The agreement should further include “adequate social security coordination arrangements” (e.g. pensions), the recognition of professional qualifications, and the treatment of service providers “in a non-discriminatory manner”, MEPs said.

Claudia Delpero © all rights reserved.

Image by Rudy and Peter Skitterians from Pixabay.

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