Remove the immigration exemption from the Data Protection Act: Part II

by the3million

Remove the immigration exemption from the Data Protection Act: Part II

by the3million
the3million
Case Owner
the3million gives a voice to EU citizens in the UK. Visit our website www.the3million.org.uk Follow us on twitter @the3million
Funded
on 26th October 2019
£21,710
pledged of £20,000 stretch target from 838 pledges
the3million
Case Owner
the3million gives a voice to EU citizens in the UK. Visit our website www.the3million.org.uk Follow us on twitter @the3million

Latest: June 22, 2022

Second legal challenge to Immigration Exemption in Data Protection Act 2018

Dear backer and supporter of the cause,

We have been granted permission to proceed to a full hearing by the High Court in relation to a second legal challenge of the Immigration Exemption.

The "i…

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The Data Protection Act 2018 grants everyone the fundamental right of access to their personal data. However, an exemption included in the Act by the UK Government has meant that those seeking access to personal data for immigration purposes could be denied if it would “prejudice effective immigration control”.

This exemption had never existed before and the Open Rights Group and the3million launched a judicial review - successfully funded on CrowdJustice to fight the exemption. Disappointingly, the High Court decided against us. 

We are not giving up! We need your help to continue the fight!

The Open Rights Group and the3million are appealing against the decision. Our appeal will be heard in the Court of Appeal on 23 and 24 February 2021. 

We need £20,000 to cover our costs risk associated with the case. Because we are not-for-profit organisations, we cannot afford the normal cost risk associated with litigation like this, so we have asked the Court to provide us with costs protection They have now set this at £20,000. Without your help, we will simply not be able to bring this important case forward.

Everything is ready to go, all we need are the funds to protect us from the cost risk. 

We still believe that the immigration exemption in the Data Protection Act 2018 as it stands breaches fundamental rights. It is a blunt instrument, poorly defined and ripe for abuse. Access to data is key to an accountable system, to correct errors that occur at an alarming rate in the immigration system. 

We now know the exemption is being used and is being used often.

Our case has revealed that the Government has used the GDPR opt-out in response to 60% of its immigration-related data requests since the beginning of 2019. 

This exemption affects all foreign nationals living in the United Kingdom. Millions of EU citizens have had to navigate the settled status application process to stay in the UK, handing over personal data to the Home Office to determine whether they have a right to remain . They and other people involved in immigration cases risk being denied full access to their personal data, and if any dispute arose this denial would happen exactly when they need it most.

Rights are meant to be universal, so when we apply them selectively it undermines the whole system and makes everyone vulnerable.

Open Rights Group and the3million will continue the fight against the immigration exemption, seeking an immigration system and data protection framework that respects the rights of everyone. Will you join us?

We need your help to continue the fight. Access to personal data is #accesstojustice.

Who we are 

the3million is the leading campaign group by and for EU citizens living in the UK. We’re entirely independent – so we can truly hold the Government to account.

The Open Rights Group works to preserve digital rights and freedoms by campaigning on digital rights issues and by fostering a community of grassroots activists.

If you would like further information on the case, please contact info@the3million.org.uk

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Update 7

the3million

June 22, 2022

Second legal challenge to Immigration Exemption in Data Protection Act 2018

Dear backer and supporter of the cause,

We have been granted permission to proceed to a full hearing by the High Court in relation to a second legal challenge of the Immigration Exemption.

The "immigration exemption", in the Data Protection Act 2018, was ruled unlawful by the Court of Appeal in June 2021 following a challenge brought by Open Rights Group and the3million.

The exemption, in Schedule 2 of the Data Protection Act, has been used by theHome Office and private companies working to control immigration to refuse requests by individuals for access to personal data held about them on thegrounds that it might "prejudice the maintenance of effective immigration control". Precisely how widespread the usage of the exemption is remains unclear.

Judges gave the government until 31 January 2022 to correct the defects in theexemption. They said in their ruling that it did not meet the safeguarding requirements for exemptions listed in General Data Protection Regulations (GDPR). On 26 January 2022 the government laid a statutory instrument to amend the immigration exemption which it claimed remedied the defects.

However, Open Rights Group (ORG) and the3million, which represents EU citizens living in the UK, claim that the exemption is still unlawful and have applied for a second judicial review of the policy, in the Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2022.

The claimants, again represented by the human rights legal team at law firm Leigh Day, argue the exemption is still unlawful because it does not meet therequirements of being a 'legislative measure' necessary for compliance with Article 23 of the UK GDPR and omits necessary and procedural safeguards required by Article 23.

A legislative measure must be published in full, whereas the statutory instrument allows the Home Secretary to publish the exemption in a redacted format, which infringes the fundamental principle of legal certainty and does not fulfil the requirement to publish in full.

Contrary to the Court of Appeal ruling, the revised exemption is still "non-binding" guidance.

The parts of the exemption which justify restricted access to data for the vague purpose of "immigration control" have been left unamended. The exemption does not clearly and precisely ensure that the requirements of necessity and proportionality are met and does not contain specific provisions required by Article 23.

On 15 June 2022 the ORG and the3million were granted permission to proceed to a full hearing later this year.

Erin Alcock, lawyer in the human rights team at Leigh Day said:

"The Court of Appeal ruling last year was very clear about the safeguards required to bring the Immigration Exemption into compliance with the GDPR. It is disappointing that the statutory instrument laid falls short of what is expected by the law. Our clients feel they have no choice but to take the matter back to court for a second review."

Luke Piper, Head of Policy and Advocacy at the3million said:

"We are pleased that permission has been granted so that this important matter can be considered by the court. We had hoped, after the first challenge, the UK Government would do the right thing and do away with the immigration exemption that denies people their basic data rights. Instead, we are back in court pursuing the safeguards we and every person living in the UK is entitled to."

Meg Foulkes, Head of Policy and Litigation at Open Rights Group, said:

"The Court of Appeal made clear what was necessary to put this matter right. The government's failure to properly comply with these directions means that yet again, we are fighting to ensure that data rights are respected. We remain committed to holding this government to account."

Ben Jaffey QC of Blackstone Chambers and Julianne Morrison and Nikolaus Grubeck of Monckton Chambers are advising in this matter.

Update 6

the3million

Jan. 8, 2022

Immigration exemption - new concerns about our data rights

Dear backers, 

A happy new year to you and thank you for your continuing and generous support. 

It has been a few months since the Court of Appeal’s decision. The Government in that time have created draft laws to change the immigration exemption in reaction to the court’s decision. Unfortunately, these changes are, in our opinion, not compatible with the GDPR and undermine our data rights. 

The draft law is currently being considered by parliament. We, the3million and ORG, have written to the committee responsible for scrutinising this legislation setting out our concerns. You can read them here

The legislation will also be considered by both the House of Commons and Lords at other stages before the end of the month and we will continue to make the case for why these changes are incompatible. 

We would be grateful if you would share our concerns via social media (for example by retweeting/engaging with this tweet)  and your respective colleagues/friends who are interested in this area. 

We will keep you posted but we fear that this issue is far from resolved… 

Warmest data regards, 

Many thanks, 


Luke Piper
Head of Policy and Advocacy at the3million

Update 5

the3million

Oct. 7, 2021

Join us tomorrow at 10:30AM for the hearing at the Court of Appeal

We are in the Court of Appeal tomorrow with our legal representative Leigh Day. The court will decide how to deal with the Immigration Exemption that was found earlier this year to be unlawful. 

See the previous update for more information about the decision.

The hearing is at 10:30AM and we invite you to join the live court hearing with this link: https://t.co/1UAsUsUFtF

the3million and Open Rights Group

Update 4

the3million

May 26, 2021

We won! Immigration Exemption is judged unlawful, excessive and wrong

We are absolutely delighted to announce some huge news this evening, together with a heartfelt thanks to our backers. We absolutely could not have held the Government to account without your financial support.


Below, you will find our press release issued today. We will provide an update as soon as we can to explain the next steps - as a hearing over the summer will determine what legal steps will be taken to fix the unlawfulness of the immigration exemptions.

 

Immigration Exemption judged unlawful, excessive, wrong by Court of Appeal   

 

Today the court of appeal has unanimously found that the UK immigration exemption is incompatible with Article 23 of the GDPR. The judgment is a huge win for the Open Rights Group, the3million and their legal team at Leigh Day.

 

The Immigration exemption allows the government and private sector to circumvent data protection obligations under the vague purpose of “the effective maintenance of immigration control”.

 

It is in effect a blanket power to refuse information and use it secretly. Millions of people are potentially affected by this restriction of their data The Home Office has already relied on it in as many as 72% subject access requests for personal information.

 

Although the GDPR allows for restrictions on data protection rights it requires any exemptions to be narrow and have proper safeguards to protect individuals. The importance of such safeguards and limits is obvious from Windrush. The UK has created a hostile environment where private citizens and public servants must check the immigration status of other citizens when offering jobs, when renting accommodation, when visiting a GP or hospital, when opening a bank account, when getting married and more. All these groups count as “data controllers” who could use this new exemption to withhold information they have about a person.

 

Safeguards have to be in writing and set out in legislation. However, the Government decided to simply ignore this requirement and did not introduce any special safeguards or limits.

 

The Court of Appeal has found government acted unlawfully. How this unlawfulness should be fixed will be determined at a hearing later in the summer.  

 

Responding to the Judgment of the Court of Appeal’s judgment, Maike Bohn, Co-founder of 3million said:

"We welcome today’s judgment, especially as we represent millions of EU citizens who for the first time have to hand their personal data to the Home Office and its contractors to be able to stay in the UK. As it stands, the exemption from data protection for foreign nationals hands all the cards to unaccountable parties - a recipe for things to go horribly wrong. Winning the appeal means we can hopefully reintroduce much-needed scrutiny so errors and data misuse cannot go undetected.”

 

Sahdya Darr, Open Rights Group’s Immigration Policy Manager said “This is a momentous day. The Court of Appeal has recognised that the Immigration Exemption drives a huge hole through data protection law, allowing the Government to deny access to information that may be being used to deny people their rights. If the Government holds information about you, it should only be in the most exceptional circumstances that it is denied to you, such as during a criminal investigation. Treating all immigrants like criminals and suspects is simply wrong.”

 

Waleed Sheikh and Erin Alcock of Leigh Day said: “We are very pleased that the Court of Appeal has today ruled unanimously that the Immigration Exemption, which allows not only the Home Office but those in the private sector such as landlords, banks and others to bypass fundamental data protection obligations in the name of maintaining immigration control, is unlawful and lacking in sufficient legislative safeguards.”  

Update 3

the3million

Feb. 24, 2021

Our appeal begins today

Today, Wednesday 24 February, our hearing in the Court of Appeal against the Immigration Exemption in the Data Protection Act 2018 begins. We will be in court from this morning until tomorrow afternoon. This would not have been possible without your backing, whether financially or through supporting the case in public and on social media. We want to say thanks to each and every one of you. 

It will likely be some months before we get a decision but that we are even here, and having this fight is a victory for all of you and a show of strength in our arguments.

We are going in with a clear aim: to uphold your fundamental rights to data protection and ensure fairness in the immigration system. Our lawyers are ready, our arguments prepared, and we are looking forward to putting these arguments to the Court and overturning the earlier judgement.

Thanks once again and we look forward to updating you in the coming months.

Open Rights Group and the3million

Update 2

the3million

Jan. 8, 2021

We've got a court date!

Our appeal against the UK Government’s immigration exemption in the Data Protection Act 2018 has received a court date! We will be heard by the Court of Appeal on 23 and 24 February 2021.

the3million and Open Rights Group are looking forward to once again standing up for an accountable immgration system and a fair data protection framework that respects everyone’s right to access their personal data, regardless of nationality or country of origin.

We have also confirmed with the court that the costs risk we need to raise will be £20,000. This cost is set by the Court to limit the Government’s ability to recover legal costs from us.

Can you donate today to help get us towards that goal?

Thank you so much for your support you have shown to our challenge so far, we could not have done it without you. 

Update 1

the3million

Nov. 26, 2019

Appeal Granted

We have had some very good news: the Court of Appeal has granted permission for our appeal to be heard, on the basis that we have a real prospect of success. This means Open Rights Group and the3million can continue our fight against the immigration exemption!

We now have another chance to have our case heard and convince the Court that the immigration exemption breaches fundamental rights.

With this announcement our fundraising is now more important than ever!

We are now fundraising to cover the costs of our appeal and we need your help - this time we have a target of £15k, as the cost of an appeal is lower. We will apply to limit the cost to our organisations, but we will need to show we have have the funds to continue with the case - please support our appeal and give whatever you can.

We’ve got this far with your help and remember we have already won a victory on transparency. The Government previously did not inform people when they used the immigration exemption, but will now tell people when the exemption is used which will help them if they want to challenge its application.

We don’t yet know when the appeal will be heard in court, but we will inform you once we have a date. What we need right now is as much of your support as you can. 

Can you donate to the case or share the page over Twitter and Facebook?

https://www.crowdjustice.com/case/immigrationexemption2/ 

Any funds not used to cover the cost of the court case will go towards funding the hard work that Open Rights Group and the3million are putting into campaigning on data protection rights, and towards preparing and building support for our court case.  

Thank you again for your continuing support and your contribution to the fight for justice on data transparency.

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