08:27, April 23 226 0 theguardian.com

2018-04-23 08:27:05
Home Office data exemption sparks fears of renewed Windrush scandals

The Home Office is to be given sweeping data protection exemptions that will prevent anyone seeking information about their immigration status in future, campaigners for the Windrush generation are warning.

The changes due to be brought in by the data protection bill will deprive applicants of a reliable means of obtaining files about themselves from the department through what are known as “subject access requests”.

Challenging the Home Office’s notoriously poor decision-making in immigration cases will become far more difficult and result in miscarriages of justice, a wide range of civil rights groups, the Joint Council for the Welfare of Immigrants (JCWI), lawyers and political opponents allege.

The legislation will also lower data protection standards for the Home Office, according to campaigners, so that it no longer needs to handle data transparently, fairly and lawfully. It would not prevent the destruction of vital records such as Windrush-generation landing cards, for example.

Data will be able to be shared secretly between public services, such as the NHS, and the Home Office, more easily under the bill, it is claimed.

Labour’s shadow home secretary, Diane Abbott, said: “One of the government’s version of events is that they destroyed the landing card records of the Windrush generation for reasons of data protection. This is highly doubtful.

“But their latest data protection bill shows that the Windrush scandal is not a mistake. The bill exempts immigration matters from data protection. This can be for anyone who is a migrant, or suspected of being one, as in the Windrush cases.

“They should amend this bill. It is unacceptable that the government should be pressing ahead with legislation that allows agencies to breach data protection rights for anyone who is suspected of being a migrant. Otherwise they will show they have learned nothing, and are determined to maintain the hostile environment at whatever human cost.”

Gracie Bradley, advocacy officer for the human rights organisation Liberty, said: “The Windrush scandal would be a new low anywhere else – but thanks to Theresa May’s hostile environment, it’s just another day at the Home Office for us.

“If the data protection bill’s ‘immigration exemption’ becomes law, it will be near-impossible to challenge poor decision-making in immigration cases, or prevent the Home Office destroying evidence that could help people prove their right to be here.

“And immigration enforcement teams will find it even easier to secretly access confidential information collected by trusted public services like schools and hospitals.”

Both main legal professional bodies, the Law Society, which represents solcitors across England and Wales, as well as the Bar Council, which represents barristers, have backed the warnings.

Joe Egan, the president of the Law Society, said: “Recent events have shown how important it is to be able to scrutinise Home Office decision-making.

“The [EU’s General Data Protection Regulation] GDPR and data protection bill are based on accountability and transparency and the proposed [Home Office] exemption completely flies in the face of these principles.

“Anyone seeking their own personal data from the Home Office could be denied access without justification and with no avenue to appeal.

“With serious flaws in the immigration system being exposed on a daily basis, there is deep concern about the potential for miscarriages of justice if the proposed exemptions were to be included in the final bill.”

Andrew Walker QC, the chair of the Bar Council, said: “It seems that the government is determined to press ahead with changes in the law that could make it even more difficult for people, including those of the Windrush generation, to demonstrate that they have the right to live in the UK.

“If the new law is brought into force in the form the government wants, then those Commonwealth citizens – and many others – who are lawfully living and working in the UK will be denied the right to know what information the Home Office holds about them, which could make the difference between success and failure in a legal challenge to their wrongful detention or removal.

“The Home Office has a notoriously bad track record for unlawful decision-making, which can have catastrophic consequences for people who are detained indefinitely in removal centres or wrongfully deported.

“Giving the Home Office the right to decide not to share the data it holds about those it is trying to deport or detain will be to give it more power than it has shown it is competent to use. The legal profession’s concerns about the bill were first raised many months ago, and we would urge the government to listen to them, even at this late stage.”

The Law Society and Bar Council are calling for the Home Office’s proposed exemptions to be removed.

The JCWI has highlighted the case of Michael Braithwaite, a special needs teaching assistant who lost his job after being wrongly classified as an illegal immigrant.

The only way his lawyer was able to prove his status was to ask for his case file to be handed over by the Home Office through a “subject access request” – a common practice in challenging immigration decision.