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Immigration data protection exemption is unlawful rule Appeal Court judges

An Immigration Exemption within the Data Protection Act 2018, which allowed the Government and others within the private sector a blanket power to refuse information and use it secretly has been ruled unlawful in a judgment handed down today.

Posted on 26 May 2021

Judges sitting at the Court of Appeal ruled unanimously that the Government’s “Immigration Exemption” is incompatible with the requirement for such exemptions as outlined under Article 23(2) of the EU General Data Protection Regulation (GDPR).

The GDPR requires exemptions to be narrow and have proper safeguards to protect individuals. The importance of such safeguards and limits is obvious from Windrush and injustices committed under the government’s “hostile environment” policy. However, the Government decided to simply ignore this requirement and did not introduce any special safeguards or limits.

The Court of Appeal found the Government acted unlawfully and safeguards which had to be in writing and set out in legislation were simply not there. A further hearing will take place later in the summer to determine how to fix the unlawfulness.

The appeal was brought by Open Rights Group, a digital rights organisation that seeks to promote and uphold privacy and data protection rights and the3million, a grassroots organisation of EU citizens resident in the UK, both represented by Leigh Day solicitors, with an intervention in the Court of Appeal case brought by the Information Commissioner.

Open Rights Group and the3million had argued that the Immigration Exemption is unlawful because it is overbroad and there are no legislative safeguards in place to protect against unnecessary and disproportionate interference with the fundamental rights of data subjects.

Waleed Sheikh, who represented Open Rights Group and the3million with Erin Alcock,  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.”

Open Rights Group and the3million were represented at the hearing by Ben Jaffey QC of Blackstone Chambers and Julianne Morrison of Monckton Chambers.

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Waleed Sheik

Waleed Sheikh

Waleed Sheikh is an associate solicitor in the human rights department.

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Erin Alcock
Judicial review

Erin Alcock

Erin is a lawyer in the human rights team

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