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UK: Court of Appeal finds immigration exemption incompatible with GDPR

The England and Wales Court of Appeal (Civil Division) issued, on 26 May 2021, its judgment allowing the appeal in The Open Rights Group & Anor, R (On the Application Of) v The Secretary of State for the Home Department & Anor [2021] EWCA Civ 800. In particular, the appeal pertained to the lawfulness of statutory restriction on data protection rights in the context of immigration, specifically the 'immigration exemption' enacted under paragraph 4 of Schedule 2 to the Data Protection Act 2018 which disapplies some data protection rights where their application would be likely to prejudice immigration control.

Notably, the appellants sought a declaration that the immigration exception was incompatible with Article 23 of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR'), which allows Member States to enact further exemption, and/or Article 7, 8, and 52 of Charter of Fundamental Rights of the European Union ('the Charter'). Moreover, the Court determined that, on the grounds that there presently exists no legislative measure with specific provisions in accordance with the mandatory requirements of Article 23(2) of the GDPR, the appeal should be approved as the immigration exemption is an unauthorised derogation from the fundamental rights conferred by the GDPR, and therefore incompatible with the same.

In light of this, the Court deemed it unnecessary to address the additional contention that the immigration exemption is incompatible with the Charter.

You can read the judgment here.

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