Campaigners get go-ahead to challenge exemption UK gave itself over immigrants' data

Sueball lobbed at Brit government over Data Protection Act

The High Court has agreed to hear a campaign group's case against the UK's Data Protection Act, which they say leaves immigrants with fewer rights over their data.

The sueball – lobbed by the Open Rights Group and EU citizens' group the3million – targets an exemption in the Act that was passed into law last May.

The groups want to remove this exemption from the Act, on the grounds that it is incompatible with the General Data Protection Regulation and the EU Charter of Fundamental Rights.

The exemption in question (schedule 2, part 1, paragraph 4) removes some data rights if that data is processed for the "maintenance of effective immigration control", or if it is deemed likely to "prejudice" that.

That includes the right to access data, to restrict processing, to object to processing and the right to erasure, which are provided for in the GDPR.

The campaigners argued that this creates a two-tier system of data protection rights, and have also complained that "immigration control" is poorly defined – the implication being that there is a risk of mission creep.

The High Court held an oral hearing this morning to decide on whether to hear the case. According to the3million, the judge has granted permission for the case to go ahead, saying that "the case has merit to be heard and that both sides argued with force".

One of the major reasons campaigners are concerned is that the current set-up could prevent people from gaining access to information they need to appeal government decisions related to immigration status.

Lawyers handling appeals for asylum seekers often rely on this right to access in order to get hold of people’s immigration histories and challenge Home Office decisions.

According to information released in the House of Lords, in the 10 years to 2015, some 250,000 appeals were allowed against the Home Office, and the Chief Inspector of Borders and Immigration found a 10 per cent error rate in immigration status checks.

Opponents use such stats as evidence that immigrants need to be able to challenge the Home Office, and that they should be allowed access to the information required to do so.

"This exemption would allow these mistakes to go unchallenged," the3million said when launching the case. "These errors could lead to an application being refused or even deportation."

Similar issues were debated in Parliament during the passage of the bill, with SNP MP Joanna Cherry saying that the exemption would "have the effect of insulating the government from challenges to unlawful decision making".

Her fellow SNP member Brendan O'Hara also raised concerns about the fact that there was no legal definition of immigration control on the face of the bill.

"Given that effective immigration control is both highly subjective and highly political, I fear it will make individuals' rights extremely susceptible to changes in political tides," said SNP MP Brendan O’Hara.

The Open Rights Group, meanwhile, has said previously that the exemption also "removes restrictions from sharing of data between bodies; a shadowy, opaque, pernicious problem" – and called the exemption a "blunt instrument". ®

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