After two and a half years in the Home Office, I think I can safely say that our immigration system is not some celestial design – it is a human institution. The Home Office and the immigration system take decisions that are bad or wrong and need to be corrected.
The purpose of the Data Protection Act 2018 is to improve the rights of individuals over their personal data. The General Data Protection Regulation, from which the Act bases itself, states that everyone, regardless of their nationality or residence, should have their fundamental rights and freedoms protected, in particular their right to the protection of personal data.
Why do these two pieces of information matter? Well, in the Data Protection Act 2018 there is an exemption that removes the rights of individuals to the protection of personal data if it would prejudice the “maintenance of effective immigration control”. I fought for it to be removed while it was in the Commons but I’m afraid the Tories used their majority to vote us down. Now two civil society organisations, representing digital rights and the rights of millions of EU citizens, are taking the Government to court.
We have to build in checks and balances to the immigration justice system. As a former Home Office minister I can recognise a gratuitous land grab when I see one. And this carve out is a gratuitous land grab that should be removed from law.
The provisions in the exemption were drafted before the Windrush scandal broke, where people were wrongly detained, denied legal rights, and threatened with deportation and, in some cases, deported by the Home Office. The bill was debated while the scandal was unfolding but astonishingly the Government seemed to see no relevance between what had taken place and what was at risk by including this exemption. Here we have a Department of State, that is not fantastic at keeping records, selectively carving out particular rights of particular people who need this information to fight tribunal cases.
I may have been the Immigration Minister, and currently serve as the Shadow Minister for Digital, but most importantly I am a Member of Parliament for the constituency for Birmingham, Hodge Hill. This gives me first-hand experience of the complicated immigration histories of people who come to see me in my surgeries. The reality is that many of these people do not have access to the relevant documents, or an accurate reflection or legal understanding of their circumstances. These concerns are not fanciful; they are very real.
These concerns are not just for EU citizens nor just for any newcomer to this country. The exemption is drawn so widely that it could conceivably apply to British citizens related to individuals going through an immigration tribunal. While the political attention may be on the Home Office, the exemption would apply to private companies or other public bodies like local authorities that have a role to play in the immigration system. The exemption allows data sharing without proper accountability across these different bodies and could potentially affect millions.
The legal challenge from the Open Rights Group and the3million seeks to strike out the whole of the immigration exemption. The organisations argue that the exemption is a disproportionate interference with the fundamental right to protection of data and lacks necessity. For me, this is a question of justice. These rights, in my experience, have time and time again delivered justice when it was required. Remove those rights, and injustice will follow. That is why I support the legal challenge against the immigration exemption.
Liam Byrne is the Labour MP for Birmingham Hodge Hill and Shadow Digital Minister