An individual’s right to access information held about them under the Data Protection Act 1998 is arguably one of the greatest legacies of the New Labour government.

In immigration law, where complexity abounds and cases often roll on for years through changes in rules and regulatory frameworks, this right is crucial for people attempting to find vital information about their immigration case, or for others attempting to do so on their behalf.

It is therefore concerning that, buried deep in the Data Protection Bill, there is a proposed exemption enabling the Home Office to refuse such requests in the interests of maintaining immigration control.

The “immigration control exemption”

Schedule 2, Part 1, paragraph 4 of the Data Protection Bill, originally designed to implement the European-wide General Data Protection Regulation (GDPR) which comes into force later this month, states as follows

The GDPR provisions listed in sub-paragraph (2) do not apply to personal data processed for any of the following purposes—

(a) the maintenance of effective immigration control, or

(b) the investigation or detection of activities that would undermine the maintenance of effective immigration control, to the extent that the application of those provisions would be likely to prejudice any of the matters mentioned in paragraphs (a) and (b).

As confirmed by the Information Commissioner in its briefing to the House of Lords:

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.

As the Immigration Law Practitioners’ Association points out in its excellent note on this, there is “no definition of the phrase ‘maintenance of effective immigration control’… [and it] could therefore be used to cover an innumerable number of matters”.

Everyday accountability

It is difficult to stress how important Subject Access Requests — the process of making a request for information held by a government department about a particular person — are for individuals dealing with the Home Office.

Put simply, it is often the only way to find out what the bloody hell is going on.

Every immigration lawyer will have a story about receiving a Subject Access Request bundle and discovering something — a note from a case worker, a forgotten decision, a full set of tribunal proceedings that nobody had mentioned — which turns a case on its head.

A client of mine had been repeatedly told that he was not stateless and could obtain citizenship of a particular country. The Home Office had maintained this position through several years of hearings and applications.

Upon receipt of disclosure following a Subject Access Request and review of the Home Office file, I discovered a fax from the embassy of the country in question, sent to the relevant case working team many years previously, stating categorically that my client was not a national of that country.

The ILPA briefing referred to above details 25 further case studies where, like the example given above, extremely serious consequences were averted as a result of free access to this information.

A two-way street

Access to this information is also good for the system in general: sometimes a client believes or states that certain things have happened in their case which have not, or omit important details.

In these cases, lawyers can better advise on prospects of success, or decline to act if they do not think an application can be made or is worth making. Time and expense is spared on all sides.

The saga of the Samim Bigzad removal is an example of a case where representatives may not have acted, or may have acted differently, had they been fully appraised of the facts beforehand.

It will be difficult to expect lawyers to conduct greater due diligence before initiating proceedings to halt removals, as the courts have generally urged in Hamid cases, without the legal right to access client files that currently exists.

Sunlight is the best disinfectant

In the statelessness case I mentioned above, the tribunal branded the Home Office conduct a “public disgrace”. And as Subject Access Requests have so often been used to show the Home Office getting it wrong, the concern is that restriction of disclosure would be in its interests.

It would not even be surprising to hear the argument made that low morale among Home Office staff as a result of disclosures of wrongdoing, or the similar decline in public confidence as a result of the same, would mean that it would be in the interests of the maintenance of immigration control to restrict disclosure.

But it would mark the disappearance of yet another safety net, following the demise of legal aid and appeal rights, in an increasingly expensive and complex system of rules and requirements, and which had previously helped save the Home Office from itself.