ORG and the 3million win in court again

The Immigration Exemption to data protection is STILL unlawful as Courts tell Home Office again that they cannot sidestep Parliament when using personal data to profile migrants.

The Court of Appeal found today that the Immigration Exemption in the Data Protection Act 2018 is unlawful. The Home Office uses the exemption to deny migrants access to their own data in 66% of cases. The government has been told it needs to set out safeguards in legislation, thus facing Parliamentary scrutiny.

The case is part of litigation which has been brought by the3million, the organisation representing EU citizens in the UK, and Open Rights Group, the UK’s largest grassroots digital rights campaigning organisation. The Information Commissioner’s Office (ICO) intervened in the case. Since March 2018, six judges found the Immigration Exemption unlawful.

The government stated in the legal case that the immigration exemption would be used to profile all migrants’ data (including on travel), to work out if people might be abusing their rights or might be undertaking a “sham” marriage.

Monique Hawkins, Co-CEO of the3million, said:

“It’s shameful how this government is fighting tooth and nail to deny migrants our fundamental data rights, sidestepping parliamentary scrutiny. We suspect the Home Office use the Exemption especially to justify data transfers abroad, large scale processing and profiling exercises.

“We expect that the government will drag its feet to try and delay giving effect to this judgment until its new Data Protection and Digital Information Bill becomes law, by which point everyone’s rights will have been weakened. Automated processing and profiling will be made easier, with reduced scrutiny from both Parliament and the Information Commissioner’s Office.

This shows us how far this government will go, wasting public money to fight against being transparent and accountable to parliament.”

Jim Killock, Executive Director of the Open Rights Group said:

“The question now is whether the government will finally act after yet another court tells it that the Immigration Exemption is unlawful or whether they will continue to waste taxpayers’ money on trying to undermine migrants’ data protection rights.

“This victory shows how important strong data protection legislation is in helping us stand up to a government that is intent on undermining human rights. Unfortunately, through the Data Protection and Digital Information Bill, the government is taking away the control we have over our data and handing more power to government departments and corporations.

“We call on the government to set out safeguards as instructed by the court but also for parliamentarians to stop further government attacks on everyone’s data protection rights.”

Open Rights Group and the3million are represented by Erin Alcock, of law firm Leigh Day. She said:

“Many people subject to immigration control are highly vulnerable and it is crucial their fundamental rights are safeguarded. The judgment of the Court of Appeal acknowledges the important role of Parliament in this context – to provide the democratic scrutiny that is necessary in circumstances where fundamental rights are at risk. Our clients welcome the judgment of the Court of Appeal today, upholding the High Court decision from earlier this year, declaring the Immigration Exemption in its current form to be unlawful.”

What is the Immigration Exemption case about?

The Immigration Exemption affects the data protection rights of anyone who has had any contact with the Home Office.

The Data Protection Act 2018 gives people the right to greater control over their own data. People should be able to find out what data is held on them, through Subject Access Requests (SARs).

This right is often called a ‘gateway right’, because knowing what data is held enables a person to exercise their other Data Protection rights, including the right not to be subject to a decision based solely on automated processing, including profiling.

Other rights include the right to have their data corrected, deleted and to object to processing of their data.

Although most of these rights come with some limits built into them anyway, the Immigration Exemption was created to restrict these rights even further when the Home Secretary considers such rights would get in the way of “effective immigration control”.

The Home Office is allowed to create exemptions to data protection rights, but there must be safeguards to prevent abuse of the exemption, and a provision on the risks to the rights and freedom of data subjects. These safeguards and provisions must be set out in legislation.

The Immigration Exemption legal challenge has been fought on the basis that there are insufficient safeguards or considerations of the risk involved, and that in any case, these have not been set out on the face of the legislation.

Instead, the Home Office has merely stated in the legislation that there must be a policy document containing relevant safeguards. Such a policy document is not part of the legislation – and as such it can be changed by ministers at a moment’s notice, and without any parliamentary scrutiny whatsoever.

Today, 11 December 2023, the judgment of the three Court of Appeal judges is unequivocal, stating that the Immigration Exemption is incompatible with the Data Protection Act 2018:

“In essence, what the Secretary of State is saying to Parliament is that there will be additional safeguards but is not willing to tell Parliament what they are. They will be set out in another document, which the Secretary of State can change at will.”

The Court of Appeal has given the Government three months to fix its legislation.

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Court of Appeal judgment on the Immigration Exception.

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