A new threat to public safety? The collision of immigration and data protection law
Schedule 2 of the UK’s Data Protection Act 2018, incorporates a controversial clause known as the immigration exemption (the “Exemption”). The Exemption works to disapply certain data protection rights where the processing is carried out for immigration purposes and the Home Office considers that the processing might “prejudice the maintenance of effective immigration control”.
In July 2019, Open Rights Group (ORG) and the3million brought a claim which argued that the Exemption was too broad and undermined the GDPR as well as the EU’s stance on fundamental human rights. Whilst ORG and the3million claimed that the Exemption is incompatible with rights to privacy and protection of personal data, the UK government argued that the Exemption is justified on the grounds that it prevents data subjects from being 'tipped off' about potential immigration enforcement actions.
In the first instance, the court rejected these arguments, holding that the purposes for which the Exemption might be applied were “appropriately delineated”. Although the court found the Exemption to be lawful, the case brought the Exemption into the public eye revealing that the Home Office relied on the clause to deny access requests by data subjects in approximately 60% of immigration cases. ORG and the3million have now appealed this decision.
This appeal, reportedly heard on 23 February, is set against the backdrop of the Covid-19 pandemic and its impact on the rights of data subjects. In fact in the wake of the Covid-19 pandemic, the Exemption’s application in the context of healthcare providers has become increasingly problematic. The Exemption means that healthcare providers may disclose personal data without the need to obtain the data subject's consent, in the event that they receive requests from the Home Office for patient information where those patients are the subject of immigration proceedings. As a result, there is a real concern that data subjects who are the subject of an immigration case are potentially avoiding medical care for fear that their details may be transferred to the UK government. It follows that the outcome of the appeal is now anticipated by more than just human rights advocates.
The Exemption has also caused concern in the context of the UK's draft adequacy decision – the EDPB specifically referred to it as needing further investigation and monitoring as the Commission decides whether to finalise the draft. See our April 2021 update for further information.