Campaign groups are continuing to increase pressure on the government to reconsider the ‘immigration exemption’ in the Data Protection Bill which could prevent people from gaining access to immigration data held on them. The Bill had its second reading in the House of Commons yesterday where Tory MP Matt Hancock confirmed that the exemption was necessary, so the government could “properly police [its] borders”.
What is the Immigration Exemption?
The Data Protection Bill (“Bill”) is currently passing through Parliament. The EU General Data Protection Regulation (“GDPR”) comes into effect on 25 May 2018 and the Bill is likely to mirror the majority of the GDPR’s provisions, to enable transfers of data between the UK and EU post-Brexit.
The Bill, as drafted, creates an exemption from certain provisions of the GDPR on immigration control grounds. Under the exemption, specific rights of data subjects will be restricted where their data is processed for:
- The maintenance of effective immigration control; or
- The investigation or detection of activities that would interfere with effective immigration control to the extent that the fulfilment of their rights would prejudice these activities.
How will it affect EEA and non-EEA nationals?
Under the exemption as drafted, there would be no obligation on the Home Office to respond to subject access requests from individuals who wish to know what data about them is retained. This could be crucial for individuals subject to Home Office decisions if they wished to know what personal data was held on them and formed the basis of any decisions.
Whilst the purpose of the GDPR is to strengthen peoples’ rights, the Bill as drafted appears to seek to discriminate against some individuals and is arguably incompatible with GDPR. We will be keeping a close eye on developments in this area.