My Lords, I do not think I am going to surprise the Minister but I will go through my points on Amendment 175A. The short version is that among the double negatives, paragraph 4 enables the Home Office and others to refuse a subject’s access request in respect of data relating to “effective immigration control”. I will not muse on what “effective” might mean in this context this evening. There are exceptions to the exemption, as the Minister has said, but they do not go to the heart of the problem, which is that if the Home Office uses the exemption, someone challenging a Home Office decision will not be able to check that the Home Office has the correct information about him. For instance, an application may be refused and the correct information established only if the matter goes to appeal.
I discovered during the passage of the Bill that at the start of a case solicitors routinely put in a request to the Home Office to ensure that there is not a crucial error in the information it holds about their client. That must save time and effort—and, indeed, money and anxiety—on both sides. It seems a matter of common sense to be able to do so. I have been puzzled throughout as to why the Government consider this exemption necessary. If it is because there may be an issue of criminality, paragraph 3 provides for this, including “the prevention … of crime”, if the Home Office believes that someone might be about to commit an immigration offence.
I understand from a discussion with the Minister last week, for which I am grateful to her and her officials, that the Government do not want to characterise all applicants to the Home Office for immigration leave as criminals, but I really do not think that that is an answer. As the Minister knows, and the House will know, I would like to see this paragraph out of the Bill altogether or, at a poor second best, not brought into effect until work has been done with practitioners—lawyers and the relevant NGOS—as to its operation, but we all know about the procedural rules and those mean that I have to confine myself to the amendment made by the Government in the Commons.
As we have heard, the government amendment takes certain provisions of article 5 of the GDPR out of the scope of the exemption. The Minister has just explained those and that the provisions which must continue to apply are requirements for “lawfulness, fairness and transparency” in processing, and the “purpose limitation”, which precludes straying beyond,
“specified, explicit and legitimate purposes”.
I may be cynical—I think I am—but I cannot help thinking that this amendment is not a concession: it is to protect the Government. The original wording—and I admit to not having really taken this in beforehand—of this part of the paragraph is really quite dubious. My amendment is therefore necessarily narrow but in spirit applies to the whole paragraph. It calls for guidance about the application of the provisions of article 5 following consultation.
Since consultation would, I am sure, extend to the following points, I take this opportunity to ask the Minister to give a number of assurances. I have given the Government notice of these. They are: that the exemption is not going to be used in a blanket way to deny all requests for files held by the Home Office concerning immigration, and this will be the case regardless of the believed immigration status of the subject; that the exemption will not be routinely applied or applied without meaningful individual assessment in circumstances where the Home Office seeks to acquire data collected by essential public services from other government departments, such as the Department for Education; that the exemption will not be routinely applied or applied without meaningful individual assessment in circumstances where a person or his legal representative is requesting data held by the Home Office so that he can regularise his immigration status or progress an immigration claim; that the exemption will be applied solely by the Home Office and not by government contractors carrying out immigration control functions; that the exemption will be used only in cases where the Government have a clear and specific reason to believe that the release of data would undermine immigration control in relation to that specific person; that undermining immigration control does not include an individual accessing data which may show why he may have reason to be allowed to stay in the UK and, for those reasons, that it is anticipated to be used in only a very small number of cases; and, finally, that the exemption will not be applied to British citizens or migrants who are lawfully resident in the UK.
The Minister has told us that the operation of the paragraph will be reviewed after a year and she has mentioned the Immigration Law Practitioners’ Association. I am grateful because I think it is those who have to apply a provision or are on the wrong end of its application whose experience will be important. Having made my requests for assurances, I do not intend to press my amendment but I will be grateful for assistance from the Minister in responding to these very real concerns. They are not ones that I composed: they are a compilation of points that I was given by practitioners this morning.