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Legal challenge launched against immigration exemption clause in new Data Protection Bill

Date of Publication: 
6 March 2018

Leigh Day says exemption creates discriminatory two-tier system for data protection rights

Legal challenge launched against immigration exemption clause in new Data Protection Bill

06 March 2018

Leigh Day solicitors announced yesterday that formal legal action has been launched against the UK Government over the inclusion of a specific immigration exemption clause in the new Data Protection Bill.

According to Leigh Day, the clause means that millions of migrants would be unable to find out what personal data the Home Office holds on them, as the Government says the information is needed for 'effective immigration control'.

It is the first time that an immigration exemption will have been included in UK data protection laws.

The legal action is being brought on behalf of the3million ‐ the largest grassroots organisation of EU citizens living in the UK ‐ and the Open Rights Group (ORG) ‐ a digital campaigning organisation working to protect the rights to privacy and free speech online.

The two organisations argue that the exemption clause is incompatible with the forthcoming EU General Data Protection Regulation (GDPR), which the Data Protection Bill is designed to implement.

Rosa Curling, a solicitor at Leigh Day, explained: "The immigration exemption creates a discriminatory two-tier system for data protection rights. The clause is incompatible with GDPR, as well as EU law generally and the European Convention on Human Rights. If the exemption is made law, our clients will apply for judicial review. They have written to the government today to urge it to reconsider and to remove the immigration exemption from the bill without further delay."

Nicolas Hatton, Chairman of the3million, said: "The UK Government has proposed setting up a new registration system for EU citizens after the UK leaves the EU, and this will potentially create a database with the personal details of over three million people.

"We need safeguards in place to ensure that these citizens have access to the information held about them, so they are able to appeal Home Office decisions or correct mistakes. Everyone should be entitled to know how the Home Office and other government agencies are using their records, and that is why we want this exemption removed."

Writing in the New Statesman, Daniel Carey of Deighton Pierce Glynn Solicitors said that the proposal to remove key data protections from individuals where they are "likely…to prejudice immigration control" will affect some of the most vulnerable and marginalised people in society, and could even put asylum seekers’ lives in danger.

Carey said the immigration exemption clause would create a dangerously discriminatory two-tier data protection regime, and it is highly likely to be found to be unlawful as going beyond the boundaries of the limited derogation provision in the GDPR.

A Government spokesperson told the Guardian that there are no blanket exemptions in the Bill and any restrictions would have to be justified on a case-by-case basis with oversight from the Information Commissioner's Office and the courts.

In a separate development late last week, Migrants' Rights Network (MRN) announced that it had been granted permission for its legal challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital.

As we reported on EIN last November, under the agreement, the Home Office is able to seek confidential patient information via the NHS for immigration purposes.

MRN said last week that the case will now go to a full hearing and the High Court judge who granted permission has recommended this take place as soon as possible.

The challenge will argue that the agreement breaches patient confidentiality and undermines the fundamental values of the NHS.

Liberty, who are representing MRN in the legal challenge, said in a blog post last month that the Government is "contemplating destroying patient confidentiality in the name of border control", and such a change will destroy public trust in the NHS.

"Right now, this sinister architecture may be confined to the surveillance and targeting of undocumented migrants – and that in itself is deeply worrying. But once sufficiently developed, the Government could apply it to any other group it wishes, having already untethered itself from the principles of consent and confidentiality," Liberty warned.