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GDPR after Brexit - EU citizens won their right to access the records held by the Home Office

Posted by: Gherson Immigration

The “Immigration exemption” clause of the Data Protection Act 2018 (DPA) has left EU citizens with no right to access their personal records held by the UK Home Office, and so with no opportunity to appeal the Home Office decisions on their immigration status.

In October 2019, the High Court dismissed a case brought by the activist groups The Open Rights Group and The3million on the matter of removing the UK government’s notorious “immigration exemption” from the Data Protection Act 2018 (DPA), claiming EU citizens are denied the opportunity to effectively challenge Home Office decisions and advocate for their rights to stay in the UK, as they have no access to the documents used to decide upon such matters. On 26 May 2021, the UK Court of Appeal took a contrary view, overturning the High Court’s previous decision, ruling the immigration exemption clause is indeed unlawful. A further hearing will be held this year to consider the remedies.

Immigration exemption problem

Data protection law gives individuals certain rights of access to their personal information held by organisations and public bodies.  However, the DPA 2018 introduced an exemption: Paragraph 4, Schedule 2 of the DPA 2018, provided that “maintenance of effective immigration control” was now a valid reason for an organisation, including the Home Office, to withhold personal information from a requesting individual This disputed clause defended Home Office’s right not to disclose any information used when making decisions with regards to immigration matters concerning the EU citizens. As an effect, any EU citizen applying for the right to remain in the UK (e.g. pre-settled or settled status), had no chance to determine whether the data used in their matter was accurate, which created a paradox, since the only right untouched by the immigration exemption was the right of an individual to correct any such data.

Concerning statistics 

The Chief Inspector of Borders and Immigration admitted that in 2016, the Home Office’s database had a 10% of an error rate with regards to individuals identified as “disqualified persons”, leading to appeals against the Home Office. In the second quarter of 2017 such appeals were 45% successful. However, after the DPA 2018 came into force, such appeals were no longer possible as a result of the lack of transparency with respect to the reasons behind the Home Office decisions. Statistics show that the use of the exemption clause was readily adopted by the Home Office and other organisations upon its introduction in 2018. In 2018,  59% of all requests for disclosure (which amounts to 10,823 applicants) were denied with reliance on the exemption. This figure jumps to 70% after the High Court’s judgement in July 2019. This has left many EU citizens in precarious positions, often with no right to remain or appeal.

What now?

The recent Court of Appeal decision in May 2021 found the immigration exemption to be unlawful, in that it was non-compliant with the General Data Protection Regulation (GDPR) and the EU Charter of Fundamental Rights. However, the Court did not take steps to strike down the immigration exemption just yet – this decision has been deferred to later this year when the Court will take a view on whether to “disapply” the exemption or instead declare it unlawful and leave it to Parliament to make right.

If the latter, it is hoped that the Government recognise the importance of transparency and accountability with respect to maintaining the public’s trust in the fairness of the immigration system and public body decision-making more generally.

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The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2021


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