Insights Court of Appeal suspends declaration that the Immigration Exemption under Data Protection Act 2018 is unlawful


In August 2018, the Open Rights Group, a digital rights organisation that seeks to promote and uphold privacy and data protection rights, and the3million, a grassroots organisation of EU citizens resident in the UK, brought a judicial review claim against the Government seeking a declaration that the “Immigration Exemption” under Paragraph 4 of Schedule 2 to the Data Protection Act 2018, which disapplies some data protection rights and obligations where their application would be likely to prejudice immigration control, was unlawful. They argued that the Immigration Exemption was incompatible with the General Data Protection Regulation (206/679/EU) and/or with the Charter of Fundamental Rights of the EU.

In May 2021, the Court of Appeal allowed the claimants’ appeal, finding that the “Immigration Exemption” is contrary to Article 23 of the GDPR and of the UK GDPR. It did not decide what form of relief should be granted at that stage as all parties had agreed that the issue of relief raised sensitive and complex issues that needed to be the subject of separate argument. Accordingly, the decision on relief was deferred.

The Court of Appeal has now published its decision on relief, ruling that the “Immigration Exemption” will be declared unlawful, but that such declaration will be suspended until 31 January 2022 to provide a reasonable time for the legislation to be amended.

The Court of Appeal ruled that the suspension will apply to both the public and private sectors (and not just the public sector as argued by the claimants) as employers in the private sector are under significant legal responsibilities in the area of immigration and a major shift in the law would cause significant disruption for the private sector. Further, suspending the declaration for the public sector only would result in two different regimes for the public and private sectors respectively and the claimants had not established that a clear and satisfactory line could be drawn between the sectors for these purposes. (R (Open Rights Group and the3million) v Secretary of State for the Home Department [2021] EWCA Civ 1573 (29 October 2021) — to read the judgment in full, click here).