On 28 August 2018, campaign groups launched a legal challenge against an exemption in the UK’s Data Protection Act that could prevent individuals from gaining access to immigration data held on them.
The Open Rights Group and the EU citizens’ group “the3million”, are arguing that as the Data Protection Act currently stands many people are unable to access data that the Home Office holds on them. This is problematic as the data in question is often crucial for applications to the Home Office for new leave or extensions of existing leave.
After a successful crowdfunding campaign to raise the funds necessary to bring the case to Court, the3million group announced on 28 August 2018 that a Judicial Review had finally been launched.
The specific issue comes from an exemption in the UK Data Protection Act for immigration, which removes certain data rights if that data is processed for the “maintenance of effective immigration control”, or if it is deemed likely to prejudice such immigration control.
The exemption includes the right to access data, to restrict processing, to object to processing and the right to deletion, which are all provided for in the General Data Protection Regulation.
The group states that the exemption creates an imbalance in the different groups’ data rights, as well as arguing that “immigration control” has not been defined in the act with sufficient clarity.
An exemption like this prevents people, whether EU citizens living in the UK after Brexit, or the next generation of Windrush migrants, from obtaining the information they need to appeal government decisions relating to their immigration status.
For example, immigration lawyers dealing with appeals from asylum seekers will often have to rely on the right to access data in order to obtain their clients’ immigration histories, in order to then challenge the Home Office’s decision.
The group said: “According to the Chief Inspector of Borders and Immigration, the Home Office has a 10% error rate in immigration checks”. “This exemption would allow these mistakes to go unchallenged. These errors could lead to an application being refused or even deportation”, they continued.
The Judicial Review seeks to have this exemption entirely removed from the act, on the grounds that it is incompatible with the GDPR and the EU Charter of Fundamental Rights.
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