Government does the bare minimum to update the Immigration Exemption

ORG and the3million took the Government to court several times before the Government accepted that the Immigration Exemption was unlawful. While we are relieved to see the Government is finally complying with a court order and bringing the Immigration Exemption in line with the law, it is shameful that it took them five long years to implement the bare minimum that they can get away with.

This approach not only sets a very low bar on the standards we can expect from our politicians and their legislation, but also heightens concerns about how these legal standards will be applied in practice, if applied at all.

It’s also worth noting that the Information Commissioner’s Office have welcomed the government’s draft regulations without criticism, even though the onus appears to be on the individual to uphold their rights not the Government.

Our biggest concerns

Individuals are expected to take action, but are given few tools to help them do this or to address the obvious imbalances of power with the Government.

The exemption is construed in a way that requires the Government to assess if, and to what extent, they can rely on this exemption at the time when an individual makes a request to exercise one of their rights.

In other words:

• It’s up to the individual to take action and trigger the Government to make an assessment as to whether they are applying the exemption correctly;

• It’s also up to the individual to take action again, to test if the Government are indeed applying this exemption only in limited and justified circumstances, and not as a default option.

However, the Immigration Exemption is, by its own nature, a measure whose application must be limited in scope and time, and lifted once the circumstances have changed and the grounds upon which it was applied have vanished. The Government could have chosen a proactive approach, where the application of this exemption is re-evaluated at regular intervals, but have chosen a reactive approach where it’s up to the individual to do all the work.

It’s also worth mentioning that the Government have refused suggestions from Open Rights Group and the3million to implement additional transparency requirements. These would have required the Secretary of State to inform the data subject that a fresh decision regarding the exemption will be made if they make a new data subject access request.

For rights to be meaningful and enforceable, there must be some transparency and accountability, but the Government have done little to improve the status quo.

The facts and circumstances that led to the reform of the Immigration Exemption make it excruciatingly clear that the Government and the Home Office are not keen, if not openly hostile, to following the law and applying this exemption in practice. Indeed, the Home Office has repeatedly applied this exemption without applying any proper safeguarding or risk assessment. They have shown in the last five years a determined attempt to circumvent a Court order that asked them to legislate according to well-established rule of law standards.

At the same time, the government refused suggestions by the Open Rights Group and the3Million to add any articles that included a duty to notify the ICO whenever a material change to the application of the exemption is made, e.g. if a new class of data is included in the data to be redacted or a new source of data is to be used under the exemption.

Likewise, the Government did not implement any mechanism to enhance monitoring and accountability over how they are applying safeguards in practice and limitations required by Article 23(2) of the UK GDPR, such as:

• The storage period

• The category of data being included in the scope of the restrictions

• The additional safeguards to prevent abuse of this exemption.

Open Rights Group believe the new Immigration Exemption is a step forward in the right direction, but is still in our view open to potential abuse.

The new Immigration Exemption:

• Represents a bare minimal effort. It may strictly comply with the Court Order, but it does represent a shabby job and an overall poor display of character by this Government.

• Puts a lot of faith in an individual’s ability to take action and defend their rights, while failing to give them any additional tools or heighten transparency that would reduce the imbalances of power that may prevent them from taking action.

• Puts a lot of faith in the Government and their willingness to implement this new legal standards, which could prove a rather questionable choice in light of the fact that Government have a track record of disregarding these safeguards in practice, have tried their best to circumvent a Court Order that required them to do so, and have given no reason whatsoever to believe they will change their attitude.

In other words, the Government have complied with the Court Order in a way that makes it as difficult as permissible for an individual to uphold their rights and interests. It makes it as easy as possible for the Government to disregard their duties in practice and get away with it. Political considerations must and should go beyond legal standards, and Members of Parliament ought to ask the Government explanation as for these political decisions.

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