High Court to hear new immigration exemption challenge

15 Jun 2022

The Administrative Court has granted permission to apply for judicial review in a fresh challenge to the ‘Immigration Exemption’ under the Data Protection Act 2018 (“DPA 2018”).

The Court of Appeal found in R (Open Rights Group & The3Million) v SSHD & SSDCMS [2021] EWCA Civ 800 that an earlier version of the Immigration Exemption under the Data Protection Act 2018 was incompatible with retained EU law. The Government subsequently enacted the Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2022 (SI 2022/76), amended the DPA 2018 in light of the Court of Appeal’s decision.

The Claimants argue that the amended Immigration Exemption remains unlawful in that it does not meet the requirement of being a ‘legislative measure’ necessary for compliance with Article 23 of the UK GDPR; and/or does not comply with the mandatory requirements listed in Article 23 of the UK GDPR and, as a consequence, omits necessary substantive and procedural safeguards.

Nikolaus Grubeck is acting for the Claimants, instructed by Leigh Day.