Last week, concerned health professionals and migrants were told they could have their day in court. The Migrants’ Rights Network has gained permission to challenge, in the High Court, a data-sharing agreement between NHS Digital, the Department of Health and the Home Office. As we finally head for judicial review, it is becoming increasingly clear that data-sharing for immigration enforcement purposes is one of the most pressing issues of our time.
by Fizza Qureshi
The first judge who reviewed MRN’s legal challenge thought we did not have enough grounds to justify a full judicial review. This was in January. Our legal counsel thought we could appeal this decision in an oral hearing. So back into the Royal Courts of Justice we went, last week, to make our representations in front of another judge, whom we hoped could be swayed differently. And permission for judicial review has been granted!
Since MRN first announced its legal challenge to the data-sharing agreement last year, there has been a race to consult experts and stakeholders over the agreement’s soundness and impact. We can only assume that this sudden enthusiasm for gathering evidence and opinion, after the data-sharing deal was struck in secret (back in late 2017), constitutes an attempt to avoid a battle in court.
This ongoing public consultation, of sorts, started with the release of a review of NHS Digital’s data-sharing practices, two days before we submitted our request for a legal challenge. This review argued that there is no confidential patient information being shared with the Home Office. The information that NHS Digital do share with Government departments – a patient’s name, date of birth, gender, area they are registered, and last known address – was deemed to be merely administrative data, not confidential or sensitive information. But this is this contrary to how the British Medical Association (BMA) itself labels confidential patient information.
Then, at the beginning of the year, we saw the release of a review by Public Health England (PHE), who had already warned of the consequences of the data-sharing agreement, and stated previously:
“If patients have concerns that their personal information, even simple identifiers, could be shared with law enforcement or immigration enforcement agencies… then this risks creating a real barrier to their engagement. Any barriers, actual or perceived, to patients accessing healthcare can have serious consequences … [this] is concerning from a public health and personal healthcare perspective.”
MRN’s concern was that, with a PHE review underway, we would be asked to delay our legal challenge until the review was complete. Even though the PHE review amounted to a third party review, and was not binding for the Home Office.
Without any clarity about the time-frame and terms of reference of PHE’s review, we feared, data-sharing would continue unimpeded for months, if not years. And, as our legal counsel explained to the judge last week, lives would continue to be affected on a daily basis, leading to declining confidence in public health institutions and clear violation of migrants’ rights to data privacy.
Fortunately, the oral hearing recognised that PHE’s review did not offer sufficient grounds to prevent a judicial review. And so we can proceed.
Data-Sharing for immigration purposes is becoming the norm
The norm now for the Home Office is to allow all sorts of private information to be gathered, and personal data to be shared, for the purpose of “immigration controls.” Take the Data Protection Bill that was recently debated in the Commons. During its second reading, the Culture Secretary stated an exemption within the Bill for immigration control purposes was “…necessary to ensure that ’a minority of individuals cannot abuse data protection law with the sole intent of undermining immigration controls’.”
This frightening exemption is also being threatened with legal action by the3million and Open Rights Group. Both are battling the new exemption on the grounds of discrimination, and the creation of a two-tier data privacy regime. This is very much what our legal challenge is about, too. We argue that allowing NHS Digital to hand over patient data is discriminatory, first against undocumented migrants, who lose the right to patient confidentiality, but more broadly against any migrant, whose privacy rights risk being stripped away through one of the many mistakes the Home Office makes in tracking “immigration offenders.”
As the3million and Open Rights Group have stated, the data protection exemption that threatens to enter into law is going to be used “…as an attempt to disguise the Home Office’s mistakes by making sure that their errors are never found. When people are wrongly told to leave, they would find it very hard to challenge [because they would be denied the right to know how their personal information is being used].”
Not only do the Home Office not want their mistakes found, they also want to continue to make the UK an unpleasant place to live if you’re a migrant – EU or non-EU, undocumented or not. While different rules and policies continue to apply to different “categories” of migrants, all of them now face the same hostile environment. And all of them would be under threat if their data protection rights were easier for the Home Office to suspend.
The government’s policies continue to be guided by the belief that MORE and MORE immigration controls are needed, at the expense of basic rights, to assuage a public convinced the UK is overrun with migrants – at “breaking point,” as UKIP once put it. It is unlikely that ministers will change their views, and revoke rights-infringing policies, without a push from civil society. If that means a concerted effort to fight them in the courts, then so be it. We hope that legal channels can assert the rights that migrants have and are entitled to in this country.
The data-sharing agreement case will now go to a full hearing, hopefully in summer 2018. MRN was granted a cost capping order of £15,000, meaning this is the amount we would be liable for if we lost our challenge. We have already raised £12,000 but still need your help to raise the rest – so please do consider donating to our ongoing crowdfunding campaign.
Together we can make sure this unethical and inhumane agreement is ended once and for all.