The EU General Data Protection Regulation (‘the GDPR’) will enter into force on 25 May 2018. To give effect to the GDPR, the UK Government has introduced the Data Protection Bill 2017. This legislation will replace the Data Protection Act 1998.
Schedule 2, Part 1, Paragraph 4 of the Data Protection Bill 2017 states that there is an exemption to data subjects’ rights where personal data is being processed for the maintenance of effective immigration control, or for the investigation or detention of activities that would undermine it. This is the immigration control exemption.
This exemption will have an effect on the right of individuals to access their personal data through Subject Access Requests (SARs). That is of extreme concern to immigration solicitors.
Legal representatives make SARs to the Home Office for the release of their clients’ files as these files frequently provide crucial information about their clients’ immigration histories.
SARs are frequently essential to individuals and their legal representatives when preparing applications to the Home Office, appealing against negative decisions, and mounting legal challenges against removal, detention and deprivation of citizenship.
Under the exemption, “data controllers, including the Home Office, would not be obliged to respond to subject access requests from people wishing to know what data about them is retained, if the Home Office determines that responding would engage the exemption”. There is no definition of what immigration control exemption means in the Bill.
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.
SARs have been vital to legal representatives’ work especially with vulnerable groups, including individuals with mental health issues, domestic violence victims, children, and persons in immigration detention. Curtailing the right of these individuals and their legal representatives to access this information therefore fundamentally undermines access to justice.
SARs are also the primary means through which legal representatives can identify mistakes, miscarriage of process and mismanagement on the part of the Home Office.
The immigration control exemption will reduce legal representatives’ ability to best represent their clients and remove an important tool in holding the Home Office to account when they ignore or misrepresent facts.