Immigration Exemption judged unlawful, excessive, wrong by Court of Appeal

Today the court of appeal has unanimously found that the UK immigration exemption is incompatible with Article 23 of the GDPR. The judgment is a huge win for the Open Rights Group, the3million and their legal team at Leigh Day.

The Immigration exemption allows the government and private sector to circumvent data protection obligations under the vague purpose of “the effective maintenance of immigration control”. It is in effect a blanket power to refuse information and use it secretly.

Millions of people are potentially affected by this restriction of their data rights. The Home Office has already relied on it in as many as 72% subject access requests for personal information. 

Although the GDPR allows for restrictions on data protection rights it requires any exemptions to be narrow and have proper safeguards to protect individuals. The importance of such safeguards and limits is obvious from Windrush. The UK has created a hostile environment where private citizens and public servants must check the immigration status of other citizens when offering jobs, when renting accommodation, when visiting a GP or hospital, when opening a bank account, when getting married and more. All these groups count as “data controllers” who could use this new exemption to withhold information they have about a person.

Safeguards have to be in writing and set out in legislation. However, the Government decided to simply ignore this requirement and did not introduce any special safeguards or limits.

The Court of Appeal has found government acted unlawfully. How this unlawfulness should be fixed will be determined at a hearing later in the summer.

Responding to the Judgment of the Court of Appeal’s judgment, Sahdya Darr, Open Rights Group’s Immigration Policy Manager 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.

“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 today found that proper safeguards should be put in place to help prevent future abuses and to ensure that people are treated fairly and lawfully.”

Maike Bohn, Co-founder of 3million said:

We welcome today’s judgment, especially as we represent millions of EU citizens who for the first time have to hand their personal data to the Home Office and its contractors to be able to stay in the UK. As it stands, the exemption from data protection for foreign nationals hands all the cards to unaccountable parties – a recipe for things to go horribly wrong. Winning the appeal means we can hopefully reintroduce much-needed scrutiny so errors and data misuse cannot go undetected.”

Waleed Sheikh and Erin Alcock of Leigh Day said: “We are very pleased that the Court of Appeal has today ruled unanimously that the Immigration Exemption, which allows not only the Home Office but those in the private sector such as landlords, banks and others to bypass fundamental data protection obligations in the name of maintaining immigration control, is unlawful and lacking in sufficient legislative safeguards.”

Following today’s judgment, the Court will meet again to discuss the question of relief. In this session, the Court will decide what steps the government needs to take to ensure the exemption complies with GDPR. 


Notes to the editor:

  1. Court case details: Open Rights Group are part of a judicial review against the Immigration Exemption with organisations the3million. The claim was initially heard by Supperstone J in his judgment of 3 October 2019, [2019] EWHC 2562 (Admin). Permission to appeal was granted by my Lord, Singh LJ, on 14 November 2019. Their case was heard by the Court of Appeal on Wednesday 24 and Thursday 25 February. 
  2. After this judgment today, the Court will meet again to discuss the question of relief.
  3. The Home Office statistics, including data on subject access requests, are available here:
  4. The Data Protection Bill was introduced into the House of Lords by the UK Government in September 2017. An exemption of this kind to personal data processed for the purposes of effective maintenance of effective immigration control, had never been in UK law and, throughout Parliamentary debates, the Government failed to articulate actual evidence of the problem that the proposed exemption sought to address.

The Immigration Exemption is included in paragraph 4 of Part 1 of Schedule 2 of the 2018 Act: