the3million and Open Rights Group seek to appeal immigration exemption judgment

Campaigning organisations the3million and Open Rights Group have made an application to appeal the High Court judgment handed down today which dismissed their judicial review challenge to the Home Office regarding the ‘immigration exemption’ contained in the Data Protection Act 2018.
 
The organisations argued at the High Court hearing, that took place on 23 and 24 July 2019, that the exemption is far too broad and is contrary to the General Data Protection Regulations (GDPR). The GDPR was designed to strengthen fundamental rights of data subjects. The organisations argued in their legal case that the immigration exemption does the opposite: enabling government departments to derogate from a wide range of obligations towards individuals in the interest of ‘maintaining effective immigration control’.   
 
Mr Justice Supperstone handed down judgment this morning, finding against the claimants. He found that “the provisions of the exemption setting out the purposes for which, and the categories of data to which, it may be applied are, in my view, clear and appropriately delineate”. Accordingly, the claim was dismissed in full.
 
the3million and Open Rights Group, who are represented by law firm Leigh Day, are seeking permission to appeal to the Court of Appeal.    
 
The Open Rights Group is a UK-based digital campaigning organisation working to protect the rights to privacy and free speech online.  the3million is an organisation of EU citizens in the UK that campaigns for EU citizens who have made their home in the UK to be able to continue their life here after Brexit. 
 
The case was brought in the wake of the Windrush Scandal and during a time where the future rights of approximately three million EU citizens in the UK remains uncertain. Open Rights Group and the3million launched their challenge due to serious concerns that, among other things, the removal of data rights protected by GDPR prevents individuals from knowing whether or not the information held about them is accurate.
 
The consequences of inaccurate data in the context of the Government’s ‘hostile environment’ have proven to be catastrophic for individuals, ranging from people being wrongly disqualified from holding bank accounts to wrongfully receiving deportation threats and even being forcibly removed in error. In the immigration context, data protection rights are vital to avoid miscarriages of justice.
 
The claimants argued that under EU law, derogations from fundamental rights have always required evidence of ‘strict necessity’, which they do not believe had been shown to be the case with the immigration exemption provisions. EU law also requires specific safeguards as set out by the GDPR to reduce the risk of abuse, which the claimants argued do not exist in this case. The Information Commissioner intervened in the proceedings, arguing that the exemption would be lawful if statutory guidance was produced clearly defining its use. In response to the case put forward by the Information Commissioner Mr Justice Supperstone found that guidance was not required to render the exemption lawful. 
 
Open Rights Group and the3million in a joint statement said:
 
“We are disappointed by the judgement in the High Court today and we have applied for permission to appeal
 
“We still believe that the immigration exemption in the Data Protection Act 2018 as it stands breaches fundamental rights. It is a blunt instrument, poorly defined and ripe for abuse. Access to data is key for an accountable system, that corrects errors in an immigration system that occur at an alarming rate. The importance of this can’t be underestimated. Millions of EU citizens must navigate the Home Office application process to stay in the UK. This exemption removes that ability to correct errors, which could prove decisive in immigration decisions whether to allow a person to remain in the United Kingdom.
 
“As a result of this litigation we know the exemption is being used, and is being used often. Open Rights Group and the3million will continue the fight against the immigration exemption, seeking an immigration system and data protection framework that respects the rights of everyone.”
 
Rosa Curling, solicitor at Leigh Day, added:

“Our clients are understandably disappointed that their claim has been dismissed but they are determined to seek an appeal of the judgment as they believe that the government’s immigration exemption is fundamentally unlawful. Millions of people are already feeling uncertain and anxious about their immigration status as we approach Brexit and our clients feel that the immigration exemption adds a further layer of uncertainty by removing transparency and the opportunity to correct mistakes in the immigration system.”