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Home Office data protection exemption clause challenged

Having successfully overturned an earlier high court decision, EU citizens have won the right to full access to records about them held by the Home Office or any other body after a legal battle by campaigners.

The unanimous ruling brings to an end a three-year challenge by campaign groups the3million and the Open Rights Group, begun in 2018 when they claimed that an “immigration exemption” clause within the Data Protection Act 2018 (DPA) unlawfully denied applicants access to their data. This exemption meant that an EU citizen seeking to challenge a decision to refuse settled status or future leave to remain in the UK was automatically handicapped because they did not have access to the records used against them.

The successful appeal follows a previous bid to overturn the immigration exemption in the DPA in a judicial review in 2018, during which the Home Office successfully argued that the law was necessary. In this appeal however, judges ruled against the Home Office’s consideration that immigration control policies “outweighed the benefits of the individual exercising their data subject rights”.

This latest ruling means that further legal arguments are required in order to establish what remedies must be put in place.

Sahdya Darr, Immigration Policy Manager at the Open Rights Group commented that the judges had “recognised that the immigration exemption drives a huge hole through data protection law” adding that public bodies should be allowed to deny subject access requests only in “exceptional circumstances ... such as during a criminal investigation”.

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