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Requests for Employee Data From the Home Office - Are They Lawful?

on Friday, 22 October 2021.

The Data Protection Act 2018 and the General Data Protection Regulation (GDPR) introduced far reaching changes to the way organisations need to think about how they handle personal data.

However, one of the lesser known provisions of the 2018 Act is an exemption from certain UK GDPR rules, such as providing data under a Subject Access Request, where immigration control might be prejudiced by the release of such data. By way of example, an employer might receive a request from the Home Office for data relating to the immigration status of their employees and, in our experience, told by the Home Office that the immigration exemption in the 2018 Act permits them to release that data.

The Court of Appeal Decision

In May 2021 the Court of Appeal ruled that the immigration exemption in the 2018 Act was unlawful as it failed to comply with Article 23(2) GDPR. The case, brought by campaign groups The Open Rights Group and the three million, challenged the exemption on various grounds, but primarily arguing that the exemption was too broad.

Following the Court of Appeal's decision in May, the Court heard further arguments in October 2021 on the question of relief. In that hearing the Court confirmed that the immigration exemption would be declared unlawful, but that declaration will be suspended until 31 January 2022.

What This Means?

The Government now has until the end of January 2022 to introduce and bring into effect legislation amending the exemption. If it fails to do so, the declaration of incompatibility will come into effect on that date and the immigration exemption will no longer apply. It is understood that the Government plan to introduce legislation to amend the exemption in line with the Court of Appeal's judgment.

Until a revised exemption is introduced, it is possible that the Home Office will continue to process personal data in the same way as it has to date. Therefore any applications made to the Home Office, be it an immigration application by an individual, or an application for a sponsor licence by an employer or education provider, might continue to be governed by the Home Office's existing data protection policies regarding the exemption.

Similarly, if an organisation is processing data for immigration purposes - including where it is complying with its duties as a sponsor - the immigration exemption will technically continue to apply in the same way that it does now until the revised exemption becomes law. However, in light of the finding that the exemption is unlawful, we recommend seeking advice if you intend to rely on the exemption.

For further support for your business on responding to correspondence from the Home Office or any other immigration issues your business is facing, please contact Tom Brett Young in our Immigration Law team on 07393 148352, or complete the form below.

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