ORG and the3million challenge Government in the High Court over the Immigration Exemption

Campaigners have a second judicial review hearing in the High Court on Tuesday 21 March 2023 to challenge the Government over the immigration exemption in the Data Protection Act 2018.

The ways the exemption may have been used by the Home Office and private companies working to control immigration include refusing requests by individuals for access to personal data held about them on the grounds that it might “prejudice the maintenance of effective immigration control”.

The exemption was legally challenged by the3million and the Open Rights Group in 2018 and resulted in a Court of Appeal ruling that meant the Government had to amend defects in the exemption last year. Judges said it did not meet the safeguarding requirements for exemptions listed in the General Data Protection Regulation.

The Government laid a statutory instrument which it claimed remedied the defects but the3million and the Open Rights Group disagreed and applied for a second judicial review, for which permission was granted.

At this week’s hearing, the3million and the Open Rights Group will argue that the immigration exemption contained within Schedule 2 of the Data Protection Act 2018 is incompatible with Article 23 of the UK GDPR.

They say it does not meet the requirement of being a ‘legislative measure’ necessary for compliance with Article 23 of the UK GDPR; and it does not comply with the mandatory requirements listed in Article 23 of the UK GDPR and, as a result, omits necessary substantive and procedural safeguards.

The Information Commissioner is an Interested Party in the claim and says the amendments to the legislation do not do enough to bring the exemption into compliance with the GDPR.

Monique Hawkins, Interim Co-CEO of the3million said: 

“It’s shameful that we need to take the Government to court a second time after they have been told to fix the immigration exemption. It betrays the Government’s level of disrespect towards migrants, when basic data rights are being denied just because people have dared to move to the UK. Transparency and accountability are key and we remain committed to holding the government to account.” 

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

“Restricting people’s access to their personal data has life-changing harms when it comes to immigration decisions. The Government’s refusal to address this shows that its priority is maintaining the hostile digital environment rather than a fair and transparent immigration system.”

the3million and Open Rights Group are represented by Leigh Day partner Waleed Sheikh and lawyer Erin Alcock. 

Erin Alcock said: 

“Our clients remain concerned about the lack of safeguards within the immigration exemption. They feel strongly that the steps taken by the Government to remedy the defects identified by the Court of Appeal have not gone far enough to achieve compliance with the GDPR. Many people subject to immigration control are highly vulnerable and it is crucial their fundamental rights are safeguarded.”

Counsel instructed to appear in the case on behalf of the campaigners are Ben Jaffey KC of Blackstone Chambers and Nikolaus Grubeck of Monckton Chambers.