The UK Court of Appeals has ruled that the government must change the current immigration exemption in the Data Protection Act 2018 to improve its clarity.

The ruling, which comes following a case brought by the3milllion and the Open Rights Group, requires the government to set out safeguards, particularly around how people in a potentially vulnerable position within the immigration system are able to access the information held about them.

According to the Open Rights Group, the Home Office relies on the immigration exemption to deny migrants access to their own data in 66% of cases.

“It’s shameful how this government is fighting tooth and nail to deny migrants our fundamental data rights, sidestepping parliamentary scrutiny. We suspect the Home Office use the Exemption especially to justify data transfers abroad, large scale processing and profiling exercises,” Monique Hawkins, the Co-CEO of the3million, a rights group dedicated to European citizens living in the UK, said.

“We expect that the government will drag its feet to try and delay giving effect to this judgment until its new Data Protection and Digital Information Bill becomes law, by which point everyone’s rights will have been weakened. Automated processing and profiling will be made easier, with reduced scrutiny from both Parliament and the Information Commissioner’s Office.”

The Immigration Exemption affects the data protection rights of anyone who has had any contact with the UK Home Office.

More specifically, it effects the right to “subject access requests” which is guaranteed in The Data Protection Act 2018 – this includes knowing what data the Home Office holds, and being have to appeal decisions based solely on automated processing, and have data corrected or deleted.

The exemption allows the Home Secretary to restrict these rights if they are thought to get in the way of what they deem “effective immigration control.”

This might include investigating if someone is abusing the immigration system through a sham marriage or fake degree.

While the Home Office is allowed to create exemptions to data protection rights, there must be appropriate safeguards to prevent the abuse, and these must be set out in legislation.

Currently, the Home Office has merely stated that there must be a policy document containing said safeguards, but this is not part of legislation, nor did they explain to Parliament what the safeguards were.

Therefore, the Court of Appeal has said that the Immigration Exception is incompatible with the Data Protection Act 2018, and has given the government three months to fix the legislation.

The Information Commissioner was an interested party in the claim, and raised concerns that previous actions from the government, including guidance, did not provide enough clarity to an exemption that is used in a significant number of cases.

“This ruling is about giving migrants greater clarity in how their information is used to inform life-changing decisions about where they have the right to live,” John Edwards, the Information Commissioner, said.

“It doesn’t change the immigration process, but it does mean that people will have greater confidence when they ask to see what is happening with their information, those responding to their requests will have the guidance they need to treat people fairly and with greater empathy, and it will be easier for my office to scrutinise where those requests for information have not been handled correctly.

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“Given the importance of people’s right to request information about themselves, we are pleased that the court has been clear that the government must clearly set out safeguards when it restricts this right – even when these restrictions are for important purposes like immigration control.

“Protecting people’s rights, particularly where those people may not even be aware those rights exist, is a key part of the role the ICO was set up to fulfil. We were pleased to be able to offer our expertise around this case, and we’ll continue to provide advice to the government to ensure these safeguards are applied in practice.”

The ruling must come as a blow to the Home Secretary as the UK government continues its crackdown on immigration, including its recent plans to stifle legal immigration by raising the minimum wage for the skilled worker visa, as well as raising the minimum wage for the family visa, to over double the current minimum wage.

The new ruling could at least provide immigrants more clarity on how decisions regarding their right to live in the UK has been handled.

“The question now is whether the government will finally act after yet another court tells it that the Immigration Exemption is unlawful or whether they will continue to waste taxpayers’ money on trying to undermine migrants’ data protection rights,” Jim Killock, executive director of the Open Rights Group, said.

“This victory shows how important strong data protection legislation is in helping us stand up to a government that is intent on undermining human rights. Unfortunately, through the Data Protection and Digital Information Bill, the government is taking away the control we have over our data and handing more power to government departments and corporations.

“We call on the government to set out safeguards as instructed by the court but also for parliamentarians to stop further government attacks on everyone’s data protection rights.”