My Lords, Schedule 2(4) to the Data Protection Act 2018 outlines specific rights under the UK general data protection regulation, otherwise known as UK GDPR, that can be restricted if they would likely prejudice either
“the maintenance of effective immigration control”
or
“the investigation or detection of activities that would undermine the maintenance of effective immigration control”.
This is known as the immigration exemption.
These regulations amend the immigration exemption, following the judgment in the case of Open Rights Group and another v the Secretary of State for the Home Department. In that case, the Court of Appeal held that, while there was nothing in principle unlawful about having an exemption for the purposes of maintaining effective immigration control, the legislation itself did not fully reflect the safeguards required by Article 23(2) of the GDPR. As a result, the department made a commitment to amend the immigration exemption, setting out additional safeguards where further safeguards were considered relevant. The deadline for bringing these changes into force is 31 January this year. As part of the process of preparing these draft regulations, the department has consulted the parties to the litigation and the Information Commissioner’s Office and considered carefully their observations and comments, making amendments to the draft as appropriate.
I will now provide some detail about the new safeguards. The right of the data subject to be informed of the immigration exemption’s use, save in certain circumstances, is now on the face of the legislation, once again proving our commitment to be as open and transparent as we are able to be. We have also put in place an immigration exemption policy document—the IEPD—explaining how the immigration exemption must be operationally applied and the circumstances in which data rights might be exempted. The IEPD has been published and we will, of course, keep it under review. Publication will give stakeholders the opportunity to offer their views on the IEPD and where it can be improved, and we will act to make it so.
We are committed to addressing legitimate concerns, promoting high standards in the application of the immigration exemption and protecting individuals’ personal data. The IEPD builds on the rights and safeguards already enshrined in legislation and adds to the existing guidance that the Home Office and the ICO have published. As we said in court, we follow the ICO guidance and welcome its comments and the changes it would wish to make to the document. We are also limiting use of the immigration exemption to the Secretary of State. In doing so, we have now put it beyond doubt that the immigration exemption may not be used by so-called rogue landlords to restrict a migrant’s rights, a point that was raised in court by other parties.
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I want to be clear that by laying these regulations, we do not see to remove anyone’s rights but to add more safeguards to those rights and increase transparency on how the immigration exemption will be used. This builds on the guidance that the Information Commissioner’s Office has issued, which we are adhering to and will adhere to.
I shall highlight why the immigration exemption is vital to how we protect our borders and our citizens. For the main part, it is used when individuals request the data held about them by the Government, usually as part of a subject access request. The immigration
exemption enables the Home Office to, for example, redact certain information about ongoing operational activity or security checks in circumstances where releasing it would be likely to prejudice the maintenance of effective immigration control. After all, it is common sense that someone in this country illegally should not be given information about the enforcement activity that is about to be used to remove them.
Through targeted use of the immigration exemption, we are able to maintain an effective watchlist capability at the border to prevent criminals and those who seek to halt cause us harm threatening our country as well as to support other agencies and international partners in their vital work. We can frustrate and prevent sham marriages and protect the integrity of ongoing immigration removal and enforcement action and forgery investigations. The immigration exemption is also used to protect people being forced into a marriage and to prevent individuals absconding where there is a planned immigration visit.
There are many other ways in which the immigration exemption is used, but the central aim is to protect our citizens, ensure the integrity of the border and prevent abuses of the immigration system. It is not, however, used in a blanket way. It is applied on a case-by-case basis to the minimum amount of relevant data for the shortest possible time. The immigration exemption can be used only when we have identified the likely prejudice to the immigration system that releasing the data would be likely to cause. Once those concerns are addressed, the data may be released.
I know that noble Lords will appreciate the urgency and sensitivity that accompanies these regulations, and I think that the Committee will today support the regulations, given the safeguards that they provide. They are vital for our effort to protect the border and our citizens, and I hope that the Committee will support the measures to ensure that this tool remains part of that endeavour beyond 31 January this month. I beg to move.