I thank the noble Baroness for setting out the rationale for Amendment 175A. I wholeheartedly endorse the sentiment behind it— namely, that the data protection principles must underpin the processing of personal data held by the Home Office for immigration purposes. I also unreservedly support the notion that the Home Office needs to abide by the highest standards required by the GDPR and the Bill and to ensure that its staff are properly equipped, including through the appropriate training and guidance, to ensure that the department collectively fulfils its statutory responsibilities when it comes to processing people’s personal data. We want our staff to recognise that new data rights should be seen as an opportunity to improve how we collect, process and use other people’s data and respond to customers’ requests.
I am grateful to the noble Baroness for giving me foresight of her specific questions. The first concerned the exemption not being used in a blanket way to deny all requests for files concerning immigration held by the Home Office. This will be the case regardless of the believed immigration status of the client. We have been clear, and guidance will be clear, that the exemption can be used only on an individual basis and on a right-by-right basis—that is, a controller can exclude only those rights that would cause the prejudice test to be satisfied. Further, we will only withhold the information that could be likely to cause the prejudice. All other data is currently—and will carry on being—released.
The noble Baroness’s second question concerned the exemption not being 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. Where a right is to be restricted, there has to be evidence which a data controller can identify that has satisfied the likely-to-prejudice effective immigration control test and the test that it is still a live concern. That is irrespective of where or from whom the data was gathered.
The noble Baroness’s third question concerned the exemption not being routinely applied or applied without meaningful individual assessment in circumstances where a person or their legal representative is requesting data held by the Home Office so that they can regularise their immigration status or progress an immigration claim. We have been clear—and out guidance will be clear—that a right can be restricted only where there is a risk to the maintenance of effective immigration control. If a person is seeking to regularise their status, it is incumbent upon us to facilitate their efforts, and we strive to do so.
The noble Baroness’s next question was about the exemption being applied solely by the Home Office and not by government contractors carrying out immigration control functions. The exemption may be used and applied by those who work with us. However, the same checks and balances would be applicable in all instances.
The noble Baroness also asked for the exemption to 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 is correct—and it is what paragraph 4 of Schedule 2 provides for.
The next question the noble Baroness asked was about undermining immigration control not including an individual accessing data that may show why they may have reason to be allowed to stay in the UK. We have been clear that, where a person is seeking to regularise their status or appeal a decision, we will disclose all the data we hold to assist them in that and always give the full basis of why a decision has been made to facilitate any appeal.
The noble Baroness rightly asked, for the above reasons, whether it would be used only in a very small number of cases. The answer is yes. We anticipate that it will be a minority of cases and it is a rebuttable assumption that all rights apply to all data subjects.
The noble Baroness’s final question was about the exemption not being applied to British citizens or migrants who are lawfully resident in the UK. The exemption is not designed to apply to those here lawfully. It could, however, be used if a lawful UK resident was involved in an attempt to cause prejudice to the maintenance of effective immigration control—for example, by sponsoring someone in the knowledge that they did not qualify to be here.
I hope that I have answered in full the noble Baroness’s questions. I thank here again for providing me with sight of her questions.