After last year’s Windrush scandal, it seems that millions of EU citizens could be facing a similar dilemma after Brexit, if new Home Office rules on data access are implemented fully. A recent case heard in the high court has highlighted the fact that Home Office rules denying access to personal records could mean that EU citizens find it almost impossible to prove that they have a right to stay in the UK, questioning their immigration status and putting them at risk of deportation.
The case has been brought by the Open Rights Group and the3million, a campaign group representing EU citizens living in the UK. Their challenge is to a section of the 2018 Data Protection Act that allows Home Office ‘data controllers’ to restrict access to personal information if it would be likely to ‘prejudice effective immigration control’. The claim by the groups is that the ruling is contrary to the EU’s charger of fundamental rights and doesn’t comply with EU law. With the recent introduction of GDPR across Europe (including the UK), it was inevitable that challenges would arise and that there would be conflicts between the EU legislation and pre-Brexit UK law.
Post Windrush – lessons still need to be learnt?
The Windrush scandal demonstrated that the collection and use of data is not by any means foolproof. In fact, in many cases the information relied on by the Home Office to make life-changing decisions on the status of residents in the UK was fundamentally flawed or just flat-out wrong. Now it seems that a further 3 million EU residents could be facing the same dilemmas, as their own data is held ‘in secret’ by the Home Office and they are denied access to information that could help them in immigration disputes.
The high court was told during the case that the Home Office had offered no evidence to explain why it has introduced the restrictions on access to immigration files, but that the exemption was permissible under EU law.
While the Data Protection Act does clearly state that access to information is subject to some restrictions, it is difficult to see under what justification the Home Office has made a claim for legitimacy in this case. Access to the personal data of 3 million EU citizens doesn’t jeopardise the prevention or detection of a crime, nor has it been retained for the purposes of historical or statistical research. It could also be argued that the Home Office is in violation of the Act by refusing to say why it is withholding data by not giving a legitimate reason for its actions.
Regardless of the reasoning, it does mean that with Brexit just a few weeks away, the status of around 3 million UK residents could be called into question, and access to the information they need to demonstrate that they have the right to live and work in the UK could be denied (seemingly without reason) by the Home Office. This does not set a good precedent for the future…
It could also impact on UK businesses in a big way, as companies in both the private and the public sector employ EU nationals who are currently resident in the UK. If those workers cannot prove that they have the right to live and work here, businesses across all sectors could suddenly find that they have gaps in their rotas that are going to be very difficult to fill.
Despite the new and supposedly ‘streamlined’ Settled Status legislation, many of the 3 million EU citizens are worried that they may be treated in the same way as the Windrush generation.
What can you do?
If you’re one of the 3 million or are worried that your status may be in jeopardy post-Brexit, it’s essential to act sooner rather than later. Talk to a solicitor or legal expert who specialises in immigration law. Not only will they be able to advise you on your next move, but they may be able to submit a request for data that could help you make your case.
With the clock ticking on Brexit, and questions already being raised about the legitimacy of the interpretation of the Data Protection Act by some parties, things look like they could get very complicated for EU nationals living in the UK in the next few months. It appears that we have yet to learn the lessons of the Windrush scandal and apply them to what could be the biggest challenge to immigration law in a generation.