Most people applying to see government held data about themselves are being blocked in immigration cases since a controversial law came in last year, the High Court has been told.
Campaign organisation the Open Rights Group has highlighted the issue at the beginning of a court challenge to the Government, claiming the ‘immigration exemption’ introduced in the Data Protection Act is being employed in no fewer than 60% of applications.
The organisation, which campaigns to protect people’s digital rights, has brought the case with the3million group, representing EU citizens in the UK.
They also said that individuals were not being told when the opt-out was used, and that the failure to notify people left them unable to challenge the use of the exemption – deemed necessary by ministers if the release of information would “prejudice effective immigration control”.
Maike Bohn, co-founder of the3million, said: “GDPR (General Data Protection Regulation) is about transparency and protection of our data rights.
“We found out that the Government have not told people when their rights have been curtailed - on a surprising scale of 60% of cases.”
Matthew Rice, Scotland director for Open Rights Group, said: “The number of times this exemption has been used confirms the fears we had when we brought the case forward.
“This vague exemption provides a wide open opportunity for the Home Office to restrict access to data and avoid accountability for the mistakes it is regularly found to make.
“This is a blunt force exemption being used in opaque circumstances to restrict individuals’ fundamental right to access to personal data.”
Lawyers for the Home Office contend the exemption is compatible with EU data regulations and charter rights.
It came into force last May despite both the Law Society and the Bar Council protesting that ministers were risking a repeat of the Windrush scandal. They warned it would lead to people being wrongly deported or denied health treatment, in a mirror image of the treatment of the Windrush generation.
'Settled status' shortcoming
EU citizens in the UK are affected by the exemption because they must apply for the right to stay in the UK after Brexit, by obtaining ‘settled status’. As the law stands, an EU citizen whose application is rejected will be unable to establish if it is because of wrong, or incomplete, information held by the Home Office, the3million group says.
The only right left untouched by the immigration opt-out was to correct an incorrect date, lawyers said – which was meaningless given a person could not access the data in the first place.
Other public bodies, such as a school or hospital, and private bodies such as employers or private landlords are also allowed to restrict access to personal data.