As immigration lawyers, we frequently need to make subject access requests to the Home Office for the release of our clients’ files. These files often provide crucial information about our clients’ immigration histories. We cannot rely on the Home Office to provide this information without such a request, and they frequently do not check their own records properly when making life-changing decisions.
We are, therefore, very concerned about the immigration control exemption in the Data Protection Bill. Schedule 2 of the Bill sets out exemptions from the General Data Protection Regulation (GDPR). Paragraph 4 states:
4 (1) The listed GDPR provisions 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).
We believe that the Home Office will use this provision to limit our access to Home Office files through subject access requests. The Information Commissioner has published reports on the Bill, and this paragraph acknowledges this issue:
“20. The majority of data protection complaints to the Information Commissioner about the Home Office relate to requests for access to personal data to UK Visas and Immigration, mostly by solicitors acting on behalf of those seeking asylum. This exemption could potentially render personal data unobtainable to the data subject and this could be detrimental to individuals who are appealing asylum decisions for example. 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.”
We have put a call out for examples of when crucial information has been discovered through subject access requests. We have had a very good response so far. One example concerns a client who the Home Office denied was a British Citizen and detained for 17 months. When his lawyers applied for the Home Office file through a subject access request, they discovered that the evidence that the client was British had been held by the Home Office all along.
Solicitors need the facts in order to represent their clients. This exemption could deny access to justice, reduce our ability to best represent our clients, and allow the Home Office to misrepresent facts without us having the means to be able to hold them to account. If you have further examples of the importance of subject access requests, please send them to email@example.com.