Campaigners for the rights of EU citizens in the UK have launched a legal challenge against an exemption in the Data Protection Act which prevents citizens accessing their Home Office records.
They believe that they should have access to data the Home Office holds on them, because the information will influence the Home Office’s decision about their immigration status following Brexit.
The3Million, a grassroots campaign group fighting to protect the rights of EU citizens in the UK, have teamed up with the Open Rights Group, and launched a legal challenge to the Data Protection Bill – which includes an immigration exemption.
In a statement, the3Million said, “the3million and the Open Rights Groups have launched a judicial review challenging the UK Government over the inclusion of a specific clause in the Data Protection Act 2018 which, they argue, would unnecessarily restrict the rights of millions of people across the country for the purpose of ‘effective immigration control’.”
Do We Have A Right To Data?
the3million bloc marching in support of a People’s Vote on June 23, 2018 Credit: the3million Wikimedia Commons
Personal data means “any information relating to an identified or identifiable natural person.” This includes your name, location data, IP address, photograph, job title, or political opinion.
The 2018 Data Protection Act was designed to implement GDPR, giving individuals the right to access data held about them – whether by tech companies or government departments. So in theory, thanks to GDPR we do have a fundamental right to data.
However the proposed legislation has an exemption for immigration (schedule 2, part 1, paragraph 4), removing the right to access personal data “for any of the following purposes: the maintenance of effective immigration control or the investigation or detection of activities that would undermine the maintenance of effective immigration control.”
So, when it comes to an individual’s immigration status, it would appear that we do not have a right to access personal data held by the Home Office.
A Breach of Fundamental Data Rights
Windrush campaigners in Oxford in April 2018. The judicial review will also impact those affected by the Windrush scandal. Credit John Geoffrey Walker Flickr
The3Million and Open Rights Group have successfully crowdfunded a legal challenge on the basis that this exemption is contrary to article 23 of the GDPR. They argue that it also runs counter to articles 7 (respect for family life) and 8 (protection of personal data) of the EU Charter of Fundamental Rights, as well as being discriminatory towards EU citizens. The Charter lays our civil, political, economic, and social rights and is based charters and conventions, such as the Human Rights Convention, as well as the constitutional traditions of EU member states.
The groups argue that, in effect, it creates a double standard for access to personal data held by the Home Office. Human rights lawyer Rosa Curling, who is acting for the3Million and the Open Rights Group, told the Guardian, “It cannot be correct that a two-tier system is created for data rights, distinguishing those who become subject to immigration control from British citizens.”
The3million point out that the challenge will also impact the data rights for any individual with an immigration case to be settled. “For example, those seeking refuge in the UK, those affected by the Windrush scandal, the three million EU citizens who will have to submit their applications for a new immigration status after Brexit. If this Bill becomes law, people won’t have the right to access their personal data held by the Home Office.”
They also highlight that the proposed Data Protection Act would leave no recourse for mistakes by the Home Office on immigration cases, something the Windrush scandal has brought into sharp focus.
“According to the Chief Inspector of Borders and Immigration, the Home Office has a ten percent error rate in immigration status checks. This exemption would allow these mistakes to go unchallenged. These errors could lead to an application being refused or even deportation.”
Featured image credit: I Love the EU Wikimedia Commons