This week the House of Commons and the House of Lords will consider the Government’s proposed legislation regarding amendments to the immigration exemption. The Government is showing a flagrant disregard to the Court of Appeal’s ruling on the rights of migrants’ to access their data.
The Government has been given until the end of this month to introduce legislation amending the exemption so that it is compatible with the Court of Appeal’s findings. However, the proposed legislation continues to undermine the rights of migrants’ to be able to access their data.
The exemption currently has the effect of denying people access to their data rights where it is in the interest of immigration control to do so. Millions of EU citizens are prevented from full access to information held on them by the Home Office. This undermines their legal right to challenge immigration decisions.
The proposed legislation fails to include the statutory safeguards demanded by the UK courts and adhere to the principles underpinning quality legislation. The current safeguards were deemed by the court to be inadequate to protect individual data subject rights. Instead, the Government makes reference to guidance which is not enforceable by law and undermines the principles set out for legislative measures to be clear, precise and forseeable. In effect, what the Government is asking Parliament to do is to ignore the Court of Appeal’s rulings on the rights of migrants’ to access their data.
In May 2021, the immigration exemption (which became law as part of the Data Protection Act 2018) was deemed unlawful under GDPR by the Court of Appeal. The changes which were laid last year in the form of a Statutory Instrument can be found here. The judges ruled that the immigration exemption does not comply with Article 23 of GDPR because it lacks a legislative measure to address specific safeguards for example, the purpose of the processing of the data, the scope of the restriction, or safeguards to prevent abuse.
The proposed legislation which will be debated by a committee of MPs on Tuesday and by members of the House of Lords on Wednesday does not meet the requirements laid out by the Court of Appeal, which demand “clear, precise and foreseeable” legal provisions. The Government has failed to address the unlawful conduct identified by the Court of Appeal in the judgments and is attempting to avoid accountability by the courts by relying instead on providing ‘guidance’. Without a legislative and therefore enforceable measure the court has said the Government must introduce, people’s data rights remain unprotected. As a result, the proposed legislation threatens to continue to severely curtail the data rights of migrants and deny them access to information without accountability.
Open Rights Group together with the3million have shared this briefing note with MPs and members of the House of Lords. It is vital that Parliamentarians attend the debates in the Commons and the Lords to express their concerns that what the Government is doing is incompatible with the findings of the Court.