The government has been taken to court over its decision to deny European citizens the right to access data the Home Office holds on individuals in immigration cases.
In a high court judicial review, campaigners for EU citizens allege that a clause in the Data Protection Act 2018 unlawfully excludes them from rights they would otherwise hold to access private data held by third parties.
It emerged during the hearing that 60% of the requests for disclosure of data held by the government have been denied since the beginning of 2019 using these powers, leaving migrant workers and others unable to appeal Home Office decisions.
Law firm Leigh Day, acting for the activist group the3million and the Open Rights Group, which brought the case, said the exemption affects 3.6 million EU citizens living in the UK who will have to apply for new immigration status after Brexit.
Lawyers for the Home Office argue that the exemption is compatible with EU data regulations and charter rights.
But solicitor Rosa Curling of Leigh Day said it was discriminatory and a breach of EU law. “The discriminatory, two-tier data protection regime created by our government is unlawful and we hope the court will agree it must be reconsidered on an urgent basis.
“Individuals must have access to their personal data so they know what information is held about them by the Home Office and others, how this information is being processed and shared and to allow them to correct any errors made.
“Without access to the data, their right to rectify is meaningless.”
By blocking access to data, the groups argue that mistakes by the Home Office will go unchecked and decisions about an individual’s immigration status “could be made based on incorrect or incomplete information and it could even lead to wrongful deportations”.
“This is of particular concern given that the chief inspector of borders and immigration has acknowledged the Home Office has a 10% error rate in immigration status checks,” they said.
EU citizens in the UK are affected by the new data laws because they must go through an application for a category of immigration post-Brexit called settled status.
As the law stands, an EU citizen whose application for settled status is rejected will not have the opportunity to establish if it is because of erroneous information or incomplete information held by the Home Office, says the3million.
“Data protection rights have proven vital to avoid miscarriages of justice in the immigration context [and] that importance will only increase as the immigration system becomes more dependent on automated analysis and profiling of data,” lawyers said in a submission to the high court.
They argue that the immigration exemption in the data act was discriminatory and contrary to the circumstances set out under the EU General Data Protection Regulation (GDPR) legislation under which member states could derogate from the law.
Lawyers noted that the only right left untouched by the immigration exemption was the right of a citizen to correct incorrect date. This, they said, was meaningless given they could not access the data in the first place.
Matthew Rice, Scotland director at the Open Rights group, said the implications of the exemption could be far reaching.
“The immigration exemption removes that right [to access private data] for millions of people for the vague purpose of effective immigration control. This restriction is available to all data controllers, it could be your school, your Doctor, your local authority or your employer that exercise the exemption and restricts your access to your data while continuing to share it with the Government for immigration enforcement.”