Lawyers attack immigration exemption in data legislation

Clause in Data Protection Bill prompts warnings that it could block subject access requests and lead to future injustices in dealing with immigration

Controversial new legislation will prevent people obtaining government held data about themselves, risking a repeat of the Windrush scandal, lawyers are warning.

Aerial view of Houses of ParliamentBoth the Law Society and the Bar Council have protested that the Data Protection Bill will block subject access requests if the release of files would “undermine immigration control”.

The exemption would lead to people being wrongly deported or denied health treatment, the Law Society said – in a mirror image of the treatment of the Windrush generation.

Unless the Home Office drops the proposal, former Home Secretary Amber Rudd’s promise to “show they have learned the lessons from Windrush” would be hollow, said Barry O’Leary, a member of its immigration law committee.

Urging MPs to rebel, he said: “If they let it go through in its current format, then I’m afraid they are complicit in future injustices.”

Removing rights

UKAuthority reported last October that the exemption in the Data Protection Bill would remove data privacy rights for immigration investigations.

O’Leary, speaking to BBC Radio 4’s Today programme, said subject access requests were a crucial part of those rights, because the Home Office “frequently makes mistakes”.

“Individuals use this frequently, as do lawyers on their behalf, because we can show – through these requests – that they actually have status, even if the Home Office says otherwise,” he said.

He gave the example of a man detained and threatened with deportation to Somalia, despite his protests that he was British.

“Through doing one of these requests, the lawyer could show that on his own Home Office file it could be proved that he was British,” he said.

“If it is the Home Office that is making the mistake, we can’t allow them to stop the individual showing that they’ve made the mistake.”

Other side of world

The new law would allow appeals to the information commissioner, but O’Leary added: “I’m afraid that the individual might then be on the other side of the world, because the Home Office has deported them.”

Civil rights group Liberty has warned that millions of migrants could have their personal information “corrected or erased” without knowing it is happening.

Gracie Bradley, Liberty’s advocacy officer, said: “It will be near impossible to challenge poor decision-making in immigration cases, or prevent the Home Office destroying evidence that could help people prove their right to be here.”

 A Home Office spokesperson said: “It is wrong to say that the proposed narrow exemption in the Data Protection Bill is an attempt to deny people access to their data.

“People will still be able to request data as they can now and will be met in all cases except where to do so could undermine our immigration control.”

Image by Paul Clarke