FATCA & HMRC: breaching my human rights to data protection and privacy

by Jenny

FATCA & HMRC: breaching my human rights to data protection and privacy

by Jenny
Jenny
Case Owner
I am crowdfunding to protect the fundamental rights of Accidental Americans and other compliant US citizens living abroad.
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Jenny
Case Owner
I am crowdfunding to protect the fundamental rights of Accidental Americans and other compliant US citizens living abroad.
Pledge now

This case is raising funds for its stretch target. Your pledge will be collected within the next 24-48 hours (and it only takes two minutes to pledge!)

Latest: March 31, 2024

Reflections on the recent judgment, and why your help could make the difference

Dear Friends and Supporters


As you all know, for years now I have been fighting a battle to vindicate my private data protection rights in connection with FATCA.


The purpose of this update is to provid…

Read more

Why I am taking HMRC to court and need your help 

Hi, I'm Jenny.  I am a US-born British citizen. I moved to the UK more than 20 years ago, when I was 22 years old. I am married and I work with deaf students at the local university where I am a research associate. I have a UK bank account where I receive my salary and pay my taxes on my earnings.

Like many Americans, I have found myself caught up in a piece of legislation called FATCA (Foreign Account Tax Compliance Act). You may not have heard of it before, I hadn't either until I received a letter from my bank out of the blue saying that I "may have tax obligations in the US" and that the bank was going to send information about me to the Internal Revenue Service (IRS). Under FATCA, banks are required to send all of my personal and financial information – and that of all those like me - to US authorities on an annual basis.

Under FATCA, banks are required to send all of my personal and financial information – and that of all those like me - to US authorities on an annual basis.

I am bringing a claim against HMRC for sharing my personal and financial information with the IRS because:

1.      The sharing of all my personal and financial information is a violation of my fundamental human rights to privacy and data protection. My information is irrelevant to the objective of FATCA which is to collect tax from those evading it. I am not liable for tax under FATCA as I earn less than the $104,000 income tax exemption for Americans living abroad.

2.       The sharing of my personal and financial information is in direct breach of GDPR.

3.       This sharing of my personal and financial information with the US government exposes me and countless others to a potential hack throughout the data processing chain (bank, HMRC, IRS).

4.       There is the significant unintended consequence that other US-born British citizens like me are unable to open local bank accounts, or are seeing them be closed down, due to the cost implications on banks of compliance with FATCA. 

Nobody should evade tax. My problem is not with FATCA's objective but the disproportionate nature of the measure to achieve its objective.

(For more information and background on FATCA click here)


Why support this claim

Like me, you believe nobody should evade tax. You recognise that the problem is not with FATCA's objective but the disproportionate nature of the measure to achieve this objective. 

You are:

  • a US citizen concerned about the direct implications of FATCA in the UK on you – the systematic and generalised processing of your personal and financial information, or;
  • a US or non-US citizen who is concerned with the growing trend of encroaching on basic human rights to privacy and data protection via systems of automatic exchange of information and public registers operated by governments, often against the advice of data protection authorities.

Sometimes it takes an ordinary person to defend individuals' fundamental rights when public authorities seek to achieve honourable public objectives through disproportionate means.

As I am one individual defending a principle that affects many, I need the support of those who share my concerns.


What we can do with your help

A legal challenge of this type requires an enormous amount of work. It is complicated and untested which means it is hard to predict how it will develop. I have instructed Mishcon de Reya who are leaders in data protection and privacy issues. Dealing with HMRC, without going to Court, is costing several hundred thousand pounds.  

I have been advised by my lawyers that because of the novel nature of the case, the costs through to a final conclusion are difficult to predict. I will, of course, share regular updates on how the case is progressing and what stage it has reached together with updates on how much more I need to raise.

In addition to providing me with the necessary funds, your donations will show the amount of public support for this cause. On 10 September 2019, I set myself an initial target of £50,000 to be met within 30 days. The supporters of this case were so generous and enthusiastic that we exceeded this target in just 28 days. Now I am working toward a stretch target of £156,000 to cover the costs of the case work as it progresses toward litigation

Support the European Parliament petitions on FATCA

Six years ago, the first petition on FATCA was submitted to the European Parliament. We have waited long enough! The European Commission must now enforce the GDPR and deal with the concerns raised on FATCA

For years the European Parliament has demanded that the European Commission and national data protection authorities (DPAs) put an end to the GDPR violations caused by FATCA in the EU. 

 Under FATCA, financial institutions across Europe must collect the sensitive personal data of bank account holders and transfer them to the IRS independently of any indicia of tax evasion. 

 This bulk processing of information, which resembles the secret practices revealed by Edward Snowden, exposes ordinary citizens to the risk of hacking and identity theft. 

 EU data protection experts advised the Commission that the measure is disproportionate, but the Commission and EU Member States have been turning a blind eye in order not to displease their US ally. 

 However, on 29 October 2021, Congress rejected the introduction of a domestic version of FATCA after Senators, Congressmen and even the American Bankers Association raised the alarm to defend the fundamental right to financial privacy of US citizens and scorn the poor data security record of the IRS. 

 Because of the costs of implementing FATCA, banks across Europe have been refusing to open bank accounts for Americans, denying them access to basic financial services. 

By signing this petition (i.e. adding your name or initials as a comment when you pledge), you will send a message to the European Commission to finally deal with the concerns raised in a number of petitions currently before the European Parliament.  

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Update 30

Jenny

March 31, 2024

Reflections on the recent judgment, and why your help could make the difference

Dear Friends and Supporters


As you all know, for years now I have been fighting a battle to vindicate my private data protection rights in connection with FATCA.


The purpose of this update is to provide some background to the recent interim judgment and also ask for your help.


1. Background to the recent judgment 


You will have seen the recent judgment in favour of HMRC in relation to a strike out application I made. Essentially, the judge decided that I did not satisfy the threshold for throwing out HMRC's argument that my case is an "abuse of process".


2. What my case is about 


The basis of my case should be relatively straightforward - does the collection of my data under FATCA, a system launched in 2010, clash with my rights under the GDPR and the UK data protection legislation, which were introduced in 2016 as a reaction to Edward Snowden’s revelations about excessive bulk data collection by the US and the UK?


3. HMRC hates my case 


For obvious reasons, HMRC hates my case and does not want my case to be heard in court, as it is a very good case.


We already had a trial date in the diary for four days in November 2023 and my team was ready. As were the US experts appointed by my team and HMRC.


So, what happened?


What happens usually in these cases.


4. HMRC has been stonewalling my case with procedural roadblocks


Essentially, the party that does not like the case to be heard (in this case, HMRC) starts throwing procedural obstacles in the way of the claimant.


In my case, the core of HMRC's procedural argument is that my case is not merely about my data protection rights, but a challenge on FATCA as a whole.


Following HMRC's reasoning, a challenge against FATCA as a whole should have taken place by way of a judicial review, which has a strict 3-month deadline.


The core of HMRC's case, therefore, is that my private law claim brought under the data protection legislation is a tardy judicial review through the back door - in a nutshell an "abuse of process".


HMRC's approach has been to shift the attention from the merits of my case to my "intentions" and those of funders in bringing and funding the claim. Are my "intentions" (and those of my funders) limited to data protection – i.e. to a private claim, or are my intentions (and those of my funders) wider – i.e. linked to striking down FATCA as a whole?


As part and parcel of that defence, HMRC required a disclosure of anything that would provide information on my intentions, and those of my private funder intentions.


5. The recent application


My team has tried to strike out HMRC's argument that my case is an "abuse of process". Unfortunately, the judge felt that I was unable to meet the high bar in showing that HMRC's abuse of process defence is hopeless, and held this should be still be decided at trial. This is the essence of the recent judgment.


6. Wider implications for my case 


It is important to point out that the High Court has not yet said anything about data protection.

But unless the judgment is successfully appealed, my case cannot go ahead.


7. Fighting for data protection in the UK is prohibitively expensive


The whole thing is a bit mad. In Europe, where the GDPR was introduced, litigating on a point of principle is relatively inexpensive and the funds raised through CrowdJustice would have been sufficient to cover all legal costs.


However, when the UK introduced the GDPR, there were no accompanying measures to make data protection claims affordable to all. Instead, the ordinary rules apply, which in the UK means that a court case such as this can cost a multiple of what I have been able to raise through CrowdJustice, and I am fortunate that I was able to attract additional funding through an additional donor.


8. Questioning motives


Do I know the identity of all those who supported my case through CrowdJustice, or their individual intentions for supporting my case?


Certainly not, and I know from many reactions on social media that many donors prize their privacy. One supporter stated the obvious when they said in response to the judgment:


"problem here is the US Government has Americans living abroad terrified. In trying to find a legal case against FATCA abuse many donors requested to remain anonymous". 


This case should not be about my intentions. Nor those of my funders. It should be about whether HMRC breached my fundamental rights to privacy and data protection, which I believe they did.


Assume that I win the case. And that this has wider implications for FATCA as a whole? Should this prevent me from bringing a claim to defend my rights? I don't think so.


9. Access to Justice


The judgment has huge implications for the Rule of Law and Access to Justice. If this judgment is allowed to stand, claimants in this area of the law will find it difficult to attract funding. There is no money to be made from a GDPR case, so people like me do not have access to commercial funders. All I can rely on is crowdfunding and - where this is insufficient - additional funding through principled funders. However, HMRC's tactics of requiring extensive disclosure to ascertain intention will deter many potential funders from supporting cases like mine.


But without significant funding, cases such as mine cannot take off.


In other words, the recent judgment has wider implications for the Rule of Law and Access to Justice.


10. I NEED YOUR HELP 


My team has lodged an appeal and I would ask you please to consider contributing funds to CrowdJustice, not only because I need funds, but also because reaching or even beating the £156,000 stretch target would send a strong signal to HMRC and the Court of Appeal that my case has the backing of hundreds of people whose intentions, and identity, should be irrelevant.


Please help me continue the fight by clicking here and feel free to leave messages. Thank you so much! 


Warm regards

Jenny

Update 29

Jenny

May 30, 2023

Belgium rules FATCA data transfers are unlawful

Following last week’s decision by the Belgian data protection authority that the indiscriminate transfers of personal information under FATCA are unlawful and violate the GDPR on myriad counts, yesterday the Times and Telegraph here in the UK also picked up on what my legal team have been warning for many years – that the indiscriminate data transfers under the Common Reporting Standard, which is based on FATCA, threaten the lives of political dissidents by enabling authoritarian regimes to easily hunt them down. FATCA must now go to the top of the European Data Protection Board’s priority list to ensure a consistent application of the GDPR in accordance with the powers conferred on the EDPB by Art. 70 GDPR, and the Kafkaesque vicious circle must end.

Update 28

Jenny

May 17, 2023

My case in a new research paper by Laura Snyder

My case is mentioned alongside the work of JR, whose European Parliament petition inspired my campaign, in a new research paper by Laura Snyder that is published this week in the Southern Illinois University Law Journal, entitled ‘The unacknowledged realities of extraterritorial taxation’. Her paper is available to read and download here.

Update 27

Jenny

April 10, 2023

My case in today's Tax Notes

My case is referenced in an article published today in the journal Tax Notes entitled 'Lessons from account-level FATCA filings' by Robert Goulder. He writes that the European Commission has acted:

'as if its priority were to protect the IGA network. That’s odd since FATCA is not its baby. You’ll be forgiven for thinking the Commission’s allegiance ought to be to preserve the integrity of GDPR, which very much is its baby. The dissonance is explained as a case of governments developing a vast data protection regime with the assumption that the resulting rules would strictly apply to private actors (think Google and Facebook) while applying less strictly — if at all — to their own taxing functions and all things appurtenant to that activity. If there’s some reason why generally applicable data protections must not extend to the domain of tax administration (including information exchange among national revenue bodies), then somebody should say so. In the meantime, [Filippo] Noseda’s clients are left wondering why the Commission cares more about Washington’s IGA network than the statutory rights of EU citizens.'

Update 26

Jenny

Oct. 3, 2022

Match-funding offer

Generous donor JP has offered to match-fund the next several pledges up to a total of £500. JP said:

“I want to find several people to partner me - I will match each new pledge up to a total of pledges of £500, turning £500 into £1000. This work Jenny and Filippo have been doing to safeguard our data is really important.”

Thank you JP!

Update 25

Jenny

Aug. 26, 2022

Our case in Bloomberg and the Washington Post

Today's piece in Bloomberg by Andreas Kluth entitled 'Next, the Supreme Court decides how to punish US expats', reprinted in the Washington Post, mentions this case as part of 'a guerrilla insurgency of litigation [that] is now forming from Canada to Israel to Europe'. At the end of the day, however, my case is about ensuring that my personal fundamental rights are safeguarded.

Update 24

Jenny

Jan. 13, 2022

Send a message to the European Commission: Enforce the GDPR!

The European Commission has still not dealt with the issues raised in any of the FATCA petitions, the first of which was submitted six years ago and supported by a 2018 study entitled FATCA legislation and its application at international and EU level and the European Parliament's Resolution on the adverse effects of FATCA, which passed by a huge majority mandate. 

This is despite the US Congress rejecting the introduction of a domestic version of FATCA in October 2021 after Senators, Congressmen and even the American Bankers Association raised the alarm to defend the fundamental right to financial privacy of US citizens and scorn the poor data security record of the IRS.

By leaving your name or initials as a comment when you make a pledge to this case, you are sending a message to the European Commission to finally deal with the concerns raised in these petitions.

Update 23

Jenny

Jan. 7, 2022

Webinar recording now available

A video from the webinar held by my legal team and their colleagues on 7 December 2021, entitled ‘FATCA - Is privacy catching up? A lesson from recent court cases’, is now available to view here.

Update 22

Jenny

Nov. 22, 2021

My court case in Tax Notes

Today the journal Tax Notes has published an article by Robert Goulder entitled ‘The FATCA Wars: Jenny Goes to Court’. He points out that my caseillustrates how HMRC and the UK government’s Information Commissioner’s Office have neglected the country’s taxpayers as far as their data protection rights are concerned’. Recently, HMRC’s own annual report for 2020-2021 has coded their data security as a ‘red’ risk – the highest level of risk (see page 95). 

Update 21

Jenny

Oct. 29, 2021

Claim filed at High Court

My claim was filed by my legal team this week at the High Court in London. This has been covered in the Economist, American Expat Financial News Journal, and today’s Financial Times.

Update 20

Jenny

July 5, 2021

Our campaign on BBC World Service's Weekend show

As noted in the American Expat Financial News JournalI was interviewed for yesterday's 4th of July episode of the Weekend show on BBC World Service. The segment, which is available to listen to here, starts at about 27 minutes in.

Update 19

Jenny

May 11, 2021

Industry news about our campaign

News about our campaign’s progress was circulated yesterday to lawyers, accountants, and trustees worldwide through their professional body, STEP.

Filippo Noseda, who leads my legal team, told STEP :

'For almost five years, the European Commission and EU Member States, as well as the UK, have been ignoring calls from campaigners to address the breach of fundamental rights caused by automatic exchange of information. Now, after incessant lobbying, the European Data Protection Board acknowledged the problem . . . an invitation by the EU's data protection watchdog to review automatic exchange of information agreements with third countries, including the US, cannot be ignored'.

Update 18

Jenny

April 19, 2021

A substantial victory at EU level

This legal challenge has made significant progress. As explained on my legal team’s FATCA pages, last week the European Data Protection Board issued a statement in which it acknowledges the concerns we have raised and “invites the Member States to assess and, where necessary, review their international agreements that involve international transfers of personal data, such as those relating to taxation (e.g. to the automatic exchange of personal data for tax purposes)."

Update 17

Jenny

Feb. 24, 2021

Our campaign in the news

In addition to recent coverage of this legal challenge in TIME magazine, this month Filippo has been featured in the American magazine Family Wealth Report in relation to this case and the campaign against the Common Reporting Standard. The article mentions the latest letter sent on 17 February 2021 to the European Commission to urge the European Data Protection Board to ‘intervene in the debate concerning the compatibility of FATCA and other systems of automatic exchange of information on individuals' fundamental rights to data protection, data security and data privacy’. The letter was also covered this week by the American Expat Financial News Journal

Update 16

Jenny

Dec. 9, 2020

Our case in Tax Notes

This week an analysis of my legal challenge by Robert Goulder entitled 'Does FATCA have a Schrems problem?' appeared in the journal Tax Notes. He concludes that the automatic exchange of tax information ‘must respect applicable data protections’.  

Update 15

Jenny

Nov. 11, 2020

Filippo at the European Parliament

Yesterday afternoon J.R., who presented a petition on FATCA before the European Parliament, and Filippo Noseda, who leads my legal team, spoke once again at a hearing about the petition, which is the inspiration behind my legal challenge. Filippo presented research revealing that the Commission misled the European Parliament about the depth of their involvement in FATCA and their data protection concerns about FATCA. The session is available to view online and starts at 17:46:10. These findings are also conveyed in a letter sent yesterday from my legal team to the Commission, which is available to read on the case correspondence page.

Update 14

Jenny

Nov. 10, 2020

Our case in Spear’s magazine

Today, Spear’s magazine published an article about the case, entitled ‘Inside one Mishcon tax lawyer’s plan to take on Fatca’ by editor-at-large Alec Marsh

Update 13

Jenny

Sept. 28, 2020

My legal team write to the EDPB about HMRC's response to my Letter of Claim

Today's letter from my legal team to the European Data Protection Board, available on the case correspondence page, discusses Friday's response from HMRC and calls on the European data protection authorities to finally take a position in the Kafkaesque debate on the data protection implications of FATCA and other systems of automatic exchange of information.

Update 12

Jenny

Sept. 15, 2020

HMRC’s reply to the Letter of Claim expected on 25 September

Yesterday HMRC requested, and my legal team granted, an extension until 25 September for HMRC to send us their response to our Letter of Claim asking for adverse party costs to be waived. We hope that HMRC will adopt an approach to my claim that will recognise the public interest of this matter.

Update 11

Jenny

Sept. 4, 2020

Our Letter of Claim is filed with HMRC

As reported by the American Expat Financial News Journal, on Saturday 29 August my legal team filed a Letter of Claim with HMRC under the Data Protection Act. 

Our case was recently discussed in a Bloomberg article entitled 'EU Privacy Law Offers Hope to Foreign Account Tax Law Critics’, and this week the case was highlighted in another piece that appeared in Bloomberg and several other newspapers including the Washington Post

Update 10

Jenny

Aug. 14, 2020

Our case in The Economist

Interest in this campaign is gathering pace. Yesterday, The Economist published an article about the case, entitled ’Should personal financial data be sent to foreign tax authorities?’. A related article appeared this week in The American on the IRS’s public 'naming and shaming’ list, which was mentioned in my legal team's 7 August 2020 letter to the UK’s Information Commissioner and the European Data Protection Board.


It is comforting to see that the arguments developed throughout the case with the ICO are being addressed. Thus, The Economist wrote:


"The [ICO] rejected [Jenny's] claim, even though it accepted that the tax authority did violate some GDPR guidelines. It is not the only European data-protection body to duck the matter […] The European Commission has also pulled punches. After first raising concerns about the data implications of FATCA, it then distanced itself from the issue, even claiming it had not been party to the original negotiations with the Americans, despite a document unearthed by an MEP, and seen by The Economist, suggesting that it was."

Update 9

Jenny

July 8, 2020

Funding needed for appeal of ICO decision

As reported today in the American Expat Financial News Journal, we are actively considering an appeal of the decision by the UK’s Information Commissioner’s Office (ICO). My legal team believes that there are serious questions to be answered, as the ICO refused to discuss the human rights angle of my claim and the data protection case law from the European Court of Justice.

The strength of our arguments and evidence going into Court to appeal the ICO’s decision is not in question. The question has been one of funds. The inability to bring the ICO's ineptitude before the English courts would be a huge hit for us, and a real tragedy for everybody who has been and will be affected by FATCA’s disproportionality.

Update 8

Jenny

June 3, 2020

Our case in WealthBriefing

Today a story about this legal challenge has appeared in WealthBriefing ('Hackers Threaten Global Account-Sharing Pacts, Law Firm Warns’, by Tom Burroughes).

Update 7

Jenny

May 16, 2020

Our case in Linklaters’ magazine

Our case and the issue of data privacy in banking are highlighted as a major development for the legal landscape of the 2020s in the magazine published by Linklaters LLP, which is a member of the Magic Circle of elite British law firms. See page 13

Update 6

Jenny

May 7, 2020

Case correspondence published online

Given the importance of this issue to the debate on data protection and privacy, my legal team at Mishcon de Reya have taken the unprecedented decision of publishing their correspondence, along with a background note summarising the case.

Update 5

Jenny

March 31, 2020

Our case in today's episode of 'How to Keep Your Money'

Filippo Noseda, who is leading my legal challenge against FATCA, discusses the case in today’s episode of the How to Keep Your Money podcast, which is now available on iTunes and Spotify.


Presenter Caroline Garnham talks to Filippo about advocating for our fundamental rights to data protection and privacy in the context of FATCA and the Common Reporting Standard (CRS), as well as other aspects of his career and his role as Visiting Professor at King's College.


The discussion of CRS starts at 14:30 and the segment about my FATCA legal challenge begins at 21:20.


How to Keep Your Money, Episode 15 - 'Private client from a common law and civil law perspective, Filippo Noseda: Mishcon de Reya'

Update 4

Jenny

Dec. 17, 2019

Holding HMRC to account

Despite the extraordinary generosity of our supporters, we still do not have sufficient funds to cover the massive adverse party costs in Court. We've made significant progress and couldn't have got this far without you. This proves the House of Lords’ assertion that this route to justice is ‘expensive and effectively inaccessible to ordinary taxpayers’, even when they have the benefit of crowdfunding from an extremely dedicated community. 


Fortunately, judicial review is not the only path. Because of your immense devotion to this challenge, we have shown that this issue impacts the lives of hundreds of law-abiding people and that the strength of feeling on this is only going to increase over time. The EU shares our view. It is in the government’s best interest to address FATCA’s disproportionality without any further delay.


On 10 September, I set myself an initial target of £50,000 to be met within 30 days. Now I am working toward a stretch target of £120,000 to cover the costs of the case work as my legal team works hard to secure a remedy for us. Every donation helps to raise the profile of this issue.


Please do continue sharing and discussing the page with your friends and family, and on social media. It really does make a massive difference. 


Thank you again for your support,

Jenny

Update 3

Jenny

Nov. 18, 2019

Our case at the European Parliament

On Tuesday 12 November, the European Parliament held a televised debate entitled 'FATCA and its extraterritorial impact on EU citizens'Filippo was asked to discuss our case, and his talk starts at 11:49:50 in the recording of the debate. Other speakers included representatives of the European Commission, the European data protection authorities, the European Banking Federation, the Accidental Americans Association, officials from France and the Netherlands, and the petitioner J.R., whose work led to the European Parliament’s report and resolution dated 5 July 2018


Read more about our case at the EU Parliament in the American Expat Finance Journal and International Adviser.

Update 2

Jenny

Nov. 1, 2019

Our case in the Law Society Gazette

Thanks to your enthusiasm and support for our challenge, Filippo is 'Lawyer in the news'! 

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