Home Office data exemption sparks fears of further Windrush scandals

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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, 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 it no longer needs to handle data ‘lawfully, fairly and in a transaparent way”. 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 has been claimed.

How the Guardian broke the story

Home Office data exemption sparks fears of further Windrush scandals

In November last year, Paulette Wilson (left), who has lived in the UK for more than half a century, spoke to the Guardian’s Amelia Gentleman about her treatment at the hands of the Home Office – and revealed that she had been held at Yarl’s Wood detention centre and threatened with deportation. It was the first of a series of stories that developed a picture of how many members of the Windrush generation were being mistreated by the government under the so-called ‘hostile environment’ policy. By February, with other examples mounting, the government had relented in Wilson’s case, but faced acute criticism from Caribbean diplomats who urged the Home Office to adopt a “more compassionate” approach.

In March the story of Albert Thompson – who had lived in Britain for 44 years but was told to produce a passport or face a bill of £54,000 for cancer treatment – forced attention back to the growing crisis. After the Guardian reported a string of additional cases matters came to a head when Theresa May refused to meet with Caribbean diplomats to discuss the issue, prompted fury among opposition MPs and a wider media backlash. After days of negative publicity Rudd and May were forced to change tack and issued apologies, promised reforms – and eventually gave the Windrush generation a fast-track to citizenship.

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The shadow home secretary, Diane Abbott, said: “[The] 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.”

The Labour MP David Lammy added: “The heart-breaking stories of people unjustly and unlawfully stripped of their right and held prisoner in their own country show that granting the Home Office these powers would be a significant mistake.”

Gracie Bradley, the advocacy officer for the human rights organisation Liberty, said:“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 solicitors 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.”

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 decisions.

The3million group, which campaigns for EU citizens rights post Brexit, and the Open Rights Group have already threatened legal action, through the law firm Leigh Day, if the Home Office exemptions become law.

If the department make a mistake in an application for settled status, the organisations say, individuals will be unable to obtain the data to see how the rejection decision was arrived at, leaving them unable to fight to have their legitimate right to be in the country reinstated.

The Home Office has established a team to help obtain documentation for Windrush generation applicants seeking to prove their legal status.

A Home Office spokesperson said: “It is wrong to say that the proposed narrow exemption in the Data Protection bill is an attempt to deny people access to their data. People will still be able to request data as they can now and will be met in all cases except where we to do so could undermine our immigration control.

“They will have the right to complain to the information commissioner if they disagree with any use of the immigration exemption and we would always want to assist those whose claims are in question.”