Court of Appeal rules on suspension of relief under retained EU law

01 Nov 2021

In R (Open Rights Group & The3Million) v SSHD & SSDCMS [2021] EWCA Civ 800, the Court of Appeal found that the ‘Immigration Exemption’ under the Data Protection Act 2018 is incompatible with retained EU law. The Court has now given a further judgment dealing with the jurisdiction to suspend relief: [2021] EWCA Civ 1571.

In this judgment, the Court of Appeal held that it had the jurisdiction, derived from retained EU law, to suspend the disapplication of legislative provisions such as the Immigration Exemption. That jurisdiction should be exercised only if the court is satisfied that (i) the period of suspension imposed is really needed to avoid legal uncertainty (ii) the party requesting the suspension has acted in good faith, and (iii) immediate disapplication would cause “serious difficulties”. On the facts, the Court of Appeal decided that it was prepared to suspend relief but, given the requirement of strict necessity identified in the authorities, only until 31 January 2022, in order to provide a reasonable time for the Data Protection Act 2018 to be amended so as to remedy the incompatibility.

Julianne Morrison and Nikolaus Grubeck acted for the successful Appellants.