Campaigners win data protection appeal which denied EU citizens access to immigration records

Campaigners have won a Court of Appeal challenge over an “unlawful” exemption to data protection rules in immigration cases.

The Open Rights Group and the3million said the “immigration exemption” introduced in the Data Protection Act (DPA), which came into force in May 2018, denies people access to their personal records in immigration cases.

The exemption means certain data protection rights do not apply when the information is held for “the maintenance of effective immigration control”.

The campaign groups argued that the exemption is unlawful and would prevent people from challenging errors made by the Home Office.

Their case was dismissed by the High Court in October 2019, but on Wednesday the Court of Appeal ruled that the immigration exemption in the DPA was unlawful.

Lord Justice Warby, sitting with Lords Justice Underhill and Singh, said that the exemption was “an unauthorised derogation from the fundamental rights conferred” under data protection rules and was therefore unlawful.

The issue of what remedy the Court of Appeal will grant will be decided at a further hearing, expected to take place later this year.

At the appeal in February, the Open Rights Group and the3million relied on independent reports that “cast doubt on the accuracy and reliability of the Home Office decision-making in the arena of immigration and data protection”, Lord Justice Warby said.

The judge said a 2016 review by the Independent Chief Inspector of Borders and Immigration found that “in 10% of cases where a search of the Home Office database identified an individual as a ‘disqualified person’ who should be refused a bank account, the answer was wrong”.

The campaign groups also referred to evidence that “in the second quarter of 2017, the success rate for appeals against Home Office immigration decisions was 47%”.

Lord Justice Warby added: “The fact that the Home Office dealt imperfectly with ‘the Windrush Generation’ is a matter of common knowledge.”

In a statement after the ruling, Sahdya Darr, the 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.”

Maike Bohn, co-founder of the3million 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.”

Waleed Sheikh and Erin Alcock, from the law firm Leigh Day which represented the campaigners, 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.”

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