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29 May 2018

New data rules ‘threaten immigration status for thousands’

Last week, MPs voted to exempt the Home Office from data protection rules that previously allowed people to access what information public authorities hold on them. This will make contesting immigration decisions more difficult than it currently is.

The Data Protection Act 1998 gave individuals a right to access information held about them through a procedure known as a ‘subject access request’ (SAR). A revised version of this bill exempts the Home Office from SARs, specifically when it comes to immigration. As the Open Rights Group notes, the Home Office can refuse SARs when the procedure “is likely to prejudice ‘effective immigration control’ or the ‘investigation or detection of activities that would undermine the maintenance of effective immigration control’.” This would prevent individuals from obtaining information from the Home Office relating to their immigration status. 

According to the Home Office, in 2016 (the last year that figures were released) there were nearly 25,950 SARs – a considerable increase from just over 22,000 in 2010. As Gherson Immigration note, the large number of SARs made to the Home Office in 2016 suggests that they have become increasingly important to individuals who seek to challenge a Home Office decision on their immigration.

Particularly in the context of immigration, the right of individuals to obtain information on themselves is crucial as this can bring to light errors made by case workers and provide information that can overturn a falsely reached immigration decision. A briefing produced by the Immigration Law Practitioners’ Association details numerous cases in which extremely serious consequences have been avoided owing to this right to access such information.

A spokesman from The Law Society has said: “when the government removed legal aid for most immigration cases, they made it harder for people to challenge Home Office decisions. Now they are seeking to remove the last avenue people have to understand and contest these decisions, which will put the immigration status of tens of thousands of people at risk”. In light of current reports of a ‘hostile environment policy’ at the Home Office, the recent Windrush scandal and increased reporting on Home Office failings, it is felt that this exemption would be in the interest of the Home Office, as it would allow it to prevent public knowledge of such mistakes.

According to the Information Commissioner’s Office: “if the exemption is applied, individuals will not be able to access their personal data to identify any factual inaccuracies and it will mean that the system lacks transparency and is fundamentally unfair.”

Various organisations including Liberty and The 3 Million are currently complaining on the issue and looking to challenge the decision in the High Court.

Meanwhile discussions at PICUM this week identified GDPR as a useful tool for those advocating on behalf of migrants. At particular issue is the development of a firewall between essential services and immigration enforcement when it comes to migrants’ personal data (preventing immigration officers from accessing data from health or social services, for example).

More on this to follow in next week’s newsletter, and in the inaugural newsletter on Policing and Immigration Enforcement. To sign up to the latter, click here.