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Campaign groups granted permission for judicial review of immigration exemption

Two campaign groups have been granted permission to bring a judicial review against the government's immigration exemption, contained in the Data Protection Act 2018, which passed into law in May 2018.

Posted on 17 January 2019

The immigration exemption affects the three million EU citizens who will have to submit their applications for a new immigration status after Brexit. It affects anyone who has dealings with the Home Office, some other state bodies and several companies who are concerned with “immigration control” such as those seeking refuge in the UK and those impacted by the Windrush scandal.

The Open Rights Group and the3million wrote to the Home Secretary earlier in early 2018 to urge the government to reconsider the exemption before it was passed into law. The government refused and the groups issued judicial review proceedings in the High Court.

Both organisations argue that the exemption is unlawful because it amounts to an unlawful, unnecessary and disproportionate interference with fundamental data protection rights. They argue that the exemption has removed people’s right to access their personal data, which is of particular concern given that the Chief Inspector of Borders and Immigration has acknowledged the Home Office has a ten percent error rate in immigration status checks.

The campaigners argue that by denying people the right to access their data people will not be able to properly challenge errors made by the Home Office. This could lead to applications relating to immigration statuses being wrongly refused or wrongful deportations taking place.

Rosa Curling, solicitor at Leigh Day, said:

“Our clients are delighted with the decision today. The attempt to remove so many people’s data rights is particularly worrying in the context of the Home Office’s hostile environment policy. Our clients are pleased to be have been granted permission so they can present their arguments in full to the court at a substantive hearing.”

Nicolas Hatton of the3million, the EU citizens group, says:
“If over three million EU citizens are going to apply for settled status, they must be able to do so knowing it’s safe for them to do it, with the right to see what the Home Office is doing with their data. Not only does this exemption go against the very purpose of the data protection act (which means to protect us from data abuse from those holding our data), but it also reinforces suspicion that the Home Office has something to hide.  I am confident our case against the Government will be successful, for the sake of EU citizens in the UK who deserve to be treated fairly, as well as all third-country nationals who fall under the same exemption.”
Matthew Rice, Open Rights Group said:
“We are delighted to have been granted permission to challenge the immigration exemption in the Data Protection Act 2018. The exemption undermines the fundamental right to data protection of millions across the United Kingdom and we will be seeking removal of the exemption from the Act in its entirety.
“The immigration exemption removes accountability from the immigration process, just as it becomes key for millions more. As the status of millions of European citizens is brought into question, it is vital that everyone retains the right to find out what data is held about them, challenge inaccuracies, and hold the Government to account for any decisions that may be taken.
“This is about more than those undergoing the settled status checks. This challenge is for anyone and everyone that is going through, or is connected to someone going through, the immigration process. This blunt instrument poses a huge threat to the right to privacy, it is time for it to go once and for all.”