Statutory Instrument 2022/76 came into force on 31 January 2022. These Regulations have been made to amend the immigration exemption present within Schedule 2 of the Data Protection Act 2018 (DPA 2018).
What is the immigration exemption?
The DPA 2018 provides an exemption from particular UK GDPR provisions. If an exemption does apply, an organisation may not have to comply with all of the rights and obligations under UK GDPR/DPA 2018.
There are a number of different exemptions, which are set out within Schedule 2 – 4 of the DPA 2018. The immigration exemption can be found in Schedule 2, Part 1, Paragraph 4 of the DPA 2018.
The immigration exemption is divided into two parts. The first part of the exemption applies to controllers who process data in relation to immigration, such as the maintenance of effective immigration control or the investigation or detection of activities that would undermine effective immigration control.
The second part of the exemption applies where you have not collected personal data specifically for immigration purposes but wish to pass the information on to another controller who is responsible for the processing.
The immigration exemption only applies to the extent that exercising such rights would prejudice the identified immigration purposes, which are:
- The maintenance of effective immigration control; or
- The investigation or detection of activities that would undermine the maintenance of effective immigration control.
What rights does the immigration exemption apply to?
The exemption applies to the following rights present within the UK GDPR:
- Right to be informed;
- Right of access;
- Right to erasure;
- Right to restrict processing; and
- Right to object.
Why has the amendment been made?
The amendment has been made following the Court of Appeal judgment in the case of The Open Rights Group & Anor, R v The Secretary of State for the Home Department & Anor.
It has been made to make it clear that the exemption can only be relied upon by the Secretary of State and only if the Secretary of State has in place an immigration exemption policy document setting out the policies and processes for determining whether the immigration exemption applies.
In addition, the amendment clarifies that the immigration exemption must be applied on a case-by-case basis and to have regard to the immigration exemption policy document when making the necessary decision.
How can we help?
Ruby Ashby is an Associate in our expert Dispute Resolution team.
Should you be affected by any issues relating to data protection, please do not hesitate to contact Ruby or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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