The UK Court docket of Attraction has dominated that the federal government’s “immigration exemption” within the Information Safety Act 2018 (DPA 18) is illegal, overturning a Excessive Court docket resolution from 2019.
The immigration exemption, which is present in Schedule 2 of the DPA 18, permits the Dwelling Workplace and different organisations or corporations concerned in “immigration management” to refuse entry to non-public knowledge held about people if it would “prejudice the upkeep of efficient immigration management”.
Digital campaigning organisation Open Rights Group (ORG) and the3million, which represents EU residents dwelling within the UK, argued to the Excessive Court docket in July 2019 that the exemption was too broad and undermined the European Union’s (EU) Common Information Safety Regulation (GDPR), in addition to its Constitution of Elementary Rights.
The exemption, which is the primary derogation of its form in 20 years of UK knowledge safety legislation, not solely impacts EU nationals, however anybody who has dealings with any of the state our bodies or corporations concerned in “immigration management”. This contains individuals looking for refuge within the UK or these affected by the Windrush scandal.
Whereas the court docket rejected the teams’ arguments and deemed the exemption lawful – discovering “the needs for which, and the classes of information to which, it might be utilized have been…appropriately delineated” – a authorized enchantment was heard by three judges on 23 and 24 February 2021, who unanimously overturned the choice on 2 June 2021.
“It is a momentous day. The Court docket of Attraction has recognised that the Immigration Exemption drives an enormous gap by way of knowledge safety legislation, permitting the federal government to limit entry to info which may be getting used to disclaim individuals their rights,” mentioned Sahdya Darr, immigration coverage supervisor at ORG.
“If the federal government holds details about you, it ought to solely be in probably the most distinctive circumstances that it’s denied to you, resembling throughout a legal investigation.
“The therapy of immigrants as criminals and suspects is solely flawed. The struggling of the Windrush technology reveals that Dwelling Workplace use of information is poor. The court docket has immediately discovered that correct safeguards ought to be put in place to assist stop future abuses and to make sure that persons are handled pretty and lawfully.”
Lord Justices Underhill, Singh and Warby dominated it was “clear that the Immigration Exception is non-compliant” with Article 23 of GDPR, including it “is an unauthorised derogation from the basic rights conferred by the GDPR, and due to this fact incompatible…For that cause, it’s illegal.”
Article 23 states that any derogation from the regulation should be carried out by way of legislative measures, and that these measures should set out quite a few particular provisions.
“The GDPR says member states can prohibit these rights, but when they do then it should be by the use of a legislative measure,” Waleed Sheikh, an affiliate solicitor at Leigh Day representing ORG and the3million, advised Pc Weekly.
“That legislative measure has to have addressed sure safeguards – for instance, the aim of the processing of the info, the scope of the restriction, or safeguards to forestall abuse.
“What the court docket has mentioned is that these two issues are lacking from the immigration exemption: one, there isn’t a legislative measure, and two, these factors usually are not addressed.”
He added whereas the Info Commissioner’s Workplace (ICO) has beforehand launched steerage on how one can apply the exemption, the purpose of a legislative measure is that it has the drive of legislation behind it, which the ICO’s steerage doesn’t.
In accordance with Darr, the federal government now has till 9 June to use for the Court docket of Attraction to enchantment the Supreme Court docket.
“It’s anticipated that any such software shall be thought of alongside reduction on the listening to. If the Court docket of Attraction refuses permission to enchantment, the federal government then has the chance to make an software to the Supreme Court docket immediately, which should be carried out inside 28 days,” she mentioned.
“No matter whether or not an enchantment is sought or not, the query of reduction shall be determined on the listening to to happen someday in the summertime. If the federal government doesn’t enchantment, then all that’s left is for us to organize for the reduction listening to.”
The case has revealed that the federal government has used the clause to disclaim knowledge topics entry to some or all of their knowledge in 60% of immigration-related instances.
In January 2021, then Scotland director at ORG Matthew Rice advised Pc Weekly that there was no manner of actually realizing when the exemption has been utilized, because the Dwelling Workplace doesn’t inform individuals when responding to their topic entry requests (SARs).
“We present in pre-litigation…that the Dwelling Workplace weren’t informing individuals of when the exemption was being engaged, so individuals have been simply receiving their response from the SARs and having knowledge faraway from it, but it surely wouldn’t say, ‘This knowledge has been eliminated due to this exemption’,” he mentioned, including that whereas there are mechanisms in place for individuals to enchantment towards an information controller’s resolution to withhold knowledge, they’re basically meaningless in case you have no idea that knowledge has been withheld within the first place.
The non-disclosure of non-public knowledge underneath the immigration exemption due to this fact not solely interferes with the person’s entry rights, however a bunch of different digital rights granted by the GDPR as nicely, together with the rights to rectification, erasure and restriction of processing.
Sheikh added: “It hasn’t but been determined what the treatment shall be, so till we all know precisely what the court docket says ought to be carried out, it’s fairly troublesome to speak about what the potential, or the sensible, implications of this judgment shall be.
“By way of the judgment as it’s, it’s a really optimistic judgment and recognises vital issues that we had in relation to the issues with the immigration exemption.”