EU citizens will be subject to ‘second-class’ data regime

LONDON: The UK’s departure from the EU will leave more than three million people subject to a “second-class” data regime and unable to access their records because of “unlawful” legislation, the High Court has heard.

The3million group said a new “immigration exemption” introduced in the Data Protection Act, which came into force in May last year, denies people access to their personal records in immigration cases. The organisation, which describes itself as “giving a voice” to citizens from other EU countries who live in the UK, is challenging the exemption and argues that it will prevent people from contesting errors made by the Home Office.

The case, against the Home Secretary and the Secretary of State for Digital, Culture, Media and Sport, is also being brought by digital campaigners Open Rights Group. On behalf of both organisations, Ben Jaffey QC told a hearing in London on Tuesday: “Very shortly, there will be a further three million people who will be subject to that regime, a further 5 per cent of the population of the UK will be subject to these arrangements.”

In written arguments before the court, Jaffey said: “The immigration exemption will create a two-tier system for data protection rights. All those affected by immigration matters will be the subject of a second-class data protection regime.”

He added: “Data protection rights have proven vital to avoid miscarriages of justice in the immigration context. That importance will only increase as the immigration system becomes more dependent on automated analysis and profiling of data.”

Jaffey told the court the immigration system is “complex and prone to error” and the consequences of any mistake can be “particularly grave”, adding: “When data is wrong, lawful citizens get a letter inviting them to go home”.

He said the Home Office is making “greatly increased use” of a large amount of data in support of its “hostile environment” raft of immigration policies — which has been renamed the “compliant environment” following the Windrush scandal.

The barrister detailed a number of errors made by the Home Office, including letters threatening deportation, which were sent to lawful residents by mistake, and said 47 per cent of appeals to the immigration tribunal are successful.

Jaffey said evidence from the Home Office suggests it has relied on the exemption in about 60 per cent of processed cases, but that the organisations have not been able to identify anyone who has been made aware that it has been used in their case.

The organisations are seeking a declaration that the immigration exemption is incompatible with EU data regulations and charter rights. They urged the government to reconsider the exemption before it became law and launched High Court proceedings after it refused to do so.

Human rights organisation Liberty and the Information Commissioner are intervening in the case. Lawyers for the government contend that the exemption is lawful, and are urging Justice Supperstone to dismiss the case. The hearing is due to continue on Wednesday (today), following which Justice Supperstone is expected to reserve his ruling.