Written by Ciara Duggan and

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The Government is facing judicial review proceedings over an exemption in the Data Protection Act 2018 that prevents citizens from accessing their immigration data.

Two campaign groups, the Open Rights Group and the3million, have threatened legal action since the provision was introduced into the Data Protection Bill, and have now launched a legal challenge with the aim of seeing the provision removed from the statute.
The challenge is based on the provision’s incompatibility with the GDPR provisions, and with Articles 7 (respect for family life) and 8 (protection of personal data) of the EU Charter of Fundamental Rights. Between them, the groups have raised £40,000 through crowdfunding to cover their legal costs.

What does the provision say?

The provision in question provides that some of the GDPR restrictions do not apply to personal data processed for either “the maintenance of effective immigration control” or “the investigation or detection of activities that would undermine the maintenance of effective immigration control”.

Data processing for these reasons removes the rights to access the data, to restrict processing, to erasure of that data, or to object to the processing. The groups argue it creates a double standard for accessing personal data, distinguishing the British citizens from those who are subject to immigration controls.

Impact of the provision

The provision would affect a wide range of groups, from those seeking asylum in the UK, to the EU citizens who will be making applications for a new immigration status after Brexit.
Anyone seeking to challenge a Government decision on immigration status would also be affected, as the provision would stop them from accessing the information they need to appeal that decision, or to see what personal data formed the basis of the Home Office’s decision.

This is of particular concern to the groups behind the legal challenge, as they point to the Government’s imperfect track record of handling immigration status questions.
According to the Chief Inspector of Borders and Immigration, the Home Office has a 10% error rate when conducting immigration status checks. The groups argue that these mistakes would go unresolved if the provision remains on the statute books, which could mean a wrongful refusal of an application, or deportation in more serious circumstances. The provision would also apply to bodies involved in the Home Office decisions, which could extend to the NHS, HMRC or employers.

This legal challenge cannot come as a surprise to the Government, who received numerous warnings from the groups that they would bring legal action if the provision remained part of the Act. Updates on the outcome of the case will be posted here in due course.

31st August 2018