18/05/2018 08:16 BST | Updated 18/05/2018 08:16 BST

Hostile Environment 2.0: Why EU Citizens And Open Rights Group Are Taking Government to Court Over Data Protection

There are now few alternatives left other than taking the government to court

It has been a big week in politics for the six million non-UK citizens, including the 3.6million EU citizens, in the UK. Unnoticed by the media and the wider public, parliament passed a passage in the Data Protection Bill 2018 that will have grave consequences for many migrants who come into contact with the Home Office.

Not even two weeks after Sajid Javid disowned the ‘hostile environment’ the government pushed through a Home Office exemption to data access rights regarding immigration cases, potentially denying thousands of the six million non-UK citizens access to justice. Article 4 of the Data Protection Bill excludes all non-UK citizen from knowing what data the Home Office has used to assess their immigration status.

The3million, the grassroots organisation representing the 3.6million EU citizens in the UK, have been warning about this for months. There are now few alternatives left other than taking the government to court.

With the Windrush scandal barely out of the news, the government has just passed the next installment of the hostile environment. Windrush has shown that the Home Office does not always get it right. Actually, the Chief Inspector of Borders and Immigration found that Home Office data is consistently unreliable. When bank checks for migrants were introduced in January the inspector established that 10% of the records shared with the banks were incorrect.

The problem with Home Office data is also evident in the number of successful immigration appeals, which have risen to their highest levels in 2017/18 with 50 percent of appealed decisions overturned in court.

Now Article 4 of the Data Protection Bill 2018 allows the Home Office to deny access to the data they have used to refuse applicants. The government argues that this data access rights exemption is needed to ‘maintain effective immigration control’. They say that people should ‘trust’ the Home Office and that this general exception will be used sparsely and only when necessary. With over 100 Home Office letters sent to EU citizens advising them to leave the UK in ‘error’, unlawful deportations of EU citizens who have fallen on hard times and the Windrush scandal, for many of the six million non-UK citizens trust has been eroded. With evidence of ever increasing hostility towards migrants by government departments since 2010 it is even more difficult to extend that trust to any future government, who will not be bound to any of the verbal promises made by the government or the Home Office.

This is why the3million have started a crowdfunder to force a judicial review of the Data Protection Bill. The main arguments are:

- The right of people involved in migration disputes to obtain their personal data from the Home Office will be severely restricted if not not entirely removed. The Home Office could simply refer to the exemption denying access or even refusing to confirm that data is held. This makes it impossible for individuals to challenge or correct data held on them.

- The exemption would also prevent people from finding out how their data was obtained and shared, enabling the Home Office to continue unlawful data sharing arrangements unchallenged because they will remain a secret. It is ironic that the exemption was passed on the same day parliament decided NHS data sharing for immigration control was elevated back to a serious crime.

- It is also worrying that the data access exemption is passed just before the application process for the 3.6 million EU citizens is introduced. A process that will use government data to establish the future status of all EU citizens in the UK. With high Home Office error rates currently, the likelihood of mistakes increases exponentially when five to seven thousand applications need processing daily for the next two and a half years.

- Importantly, the Home Office data access exemption contravenes the very EU law the Data Protection Bill 2018 is meant to implement. Restrictions of data access rights are only allowed under the following circumstances - but not for immigration purposes:

    1. National security;
    2. Public security;
    3. Defence;
    4. Crime prevention & investigation;
    5. Economic / financial interests of Member States.

Parliamentary means to fight this unlawful exemption are exhausted, unless the Government decides to drop Article 4. A judicial review is now the only option stop this law which provides the Home Office with arbitrary powers during a time when Windrush showed that transparency must be at the forefront of any immigration policy.

The3million have set up a crowdfunder to collect the £30,000 necessary to launch the legal action fighting for data access for every single one of the six million non-UK citizens in the UK.