How Privacy and Data Protection Law Can Help Defend Migrants’ Rights


Challenge to data sharing between public authorities

Super-complaint

One way to challenge data sharing between public authorities is via a super-complaint.

In 2018 Liberty and Southall Black Sisters brought the first ever police super-complaint, under section 29A of the Police Reform Act. This is a scheme designed to allow designated bodies to raise issues on behalf of the public about harmful and systemic practices by the police.

This super-complaint challenged:

  1. The police passing victim and witness data to the Home Office for immigration enforcement purposes; and
  2. The operation of and/or perception of a culture of police prioritising immigration enforcement over the investigation of crime and safeguarding.

This was a case where individuals were too scared to come forward to challenge the data sharing between the police and Home Office, due to the risk of being deported.

It was argued that the data-sharing, which included all victims even those who are victims of extremely serious crimes such as rape, modern slavery and human trafficking, undermined the fight against crime. It had a real deterrent effect on people with insecure immigration status seeking the support of the police. As a result, victims were unable to access justice while perpetrators remained free to commit further crimes and threaten public safety.

Home Office policy

When Liberty and Southall Black Sisters started the case, there was no policy on sharing and it was done on a random adhoc basis. Liberty and SBS argued that there had to be a policy, in order to ensure consistency as public law principle in this context.

A policy was then produced by the police, which said:

(1) That ordinarily, police will share any suspicion that a victim or witness of crime is of uncertain or unsettled immigration status. They will share that with the Home Office.
(2) The policy also said that the primary purpose of police in this situation was to protect the victim.
(3) It also said the police would take no enforcement action. they woudl just hand on the details to the Home Office to leave it to them.

Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS), the College of Policing (CoP) and the Independent Office for Police Conduct (IOPC) published their December 2020 report responding to the Super-Complaint. The report called for an overhaul of the laws and policies on police data-sharing with the Home Office.

Judicial review

Liberty also sought to challenge the first part of the policy, that “ordinarily the police will share any suspicion that a victim or witness of crime is of uncertain or unsettled immigration status.”

The Judicial Review grounds included:

Ground 1: Articles 2 and 3 European Convention.

  • Articles 2 & 3 include positive obligations to put in place an administrative framework, being systems and policy, which provide practical and effective protection against serious crime. [see e.g. Balsan v Romania 2017 – a victim of domestic violence must have system in place by which they can complain about being victim and seek the authorities protection.]
  • The evidence that victims will be deterred reporting crime, because they are concerned they will handed over to the Home Office, meant the administraitive famework did not provide pratical effective protection against crime, as people would not report crime.

Ground 2: related to Article 8. Looked first at whether there was an interference (sharing of data did interfere) and secondly whether it was justified.

  • This ground relied on The Christian Institute v The Lord Advocate (data about children shared between public authorities for the purpose of safeguarding. Interferred with Article 8 and incompatible as neither children nor parents asked for consent.)
  • Was there an interference: yes
  • Was the interference justified:
    • It caused serious harm. It prevented victims of serious crime such as rape, threats to kill, from having protection from the police.
    • sharing of data was inconsistent with primary purpose of policy. Primary purpose was that police should be protecting victim. Sharing data was inconsistent with that as victims would not come forward and so have no protection.
    • data sharing was justified by Home Office for purpose of immigration enforcement but, it did little or nothing to achieve that. First the police were not going to pursue immigration enforcement. No evidence that data sharing with Home Office led Home Office to take any enforcement action against indivdiuals.
      • There is caselaw that indicates a public authority may be required to put forward evidence to show that a justification they put foward is effective in a particular case. see e.g. Quila v The Home Department, Supreme Court  (no evidence Home Office policy deterred forced marriage)

Ground 3 related to Article 14, discrimination.

  • Sharing of data was direct discrimination on grounds of immigration status.i.e. data was shared if ‘unsettled’ but not if ‘settled’.
  • Failure to make exceptions to the rule e.g. for victims of domestic violence.
  • i.e. difference in treatment ongrounds of status.
  • advantages of Article 14 is broader range of statuses protected. Much more limited under Equality Act. Includes immigration status under Article 14. However, direct discrimination is justifiable under Article 14 but not under Equality ACt.
  • Also put forward Thlimmenos argument, CASE OF THLIMMENOS v. GREECE – this is the argument that if the state fails to make exception to a policy or rule for a group that is signficantly different, then that itself may be unlawful in discrimination. in this case victims of domestic violence should not have data shared. Example of this is the case of OA v Secretary of State for Education.
  • Test of justification: was the discriminatino or failure to make an exception justified.

Permission was granted. The police withdrew the initial policy then issued a new one, which was withdrawn and re-issued. They also included additional justifications such as sharing was for safeguarding reasons. Against this the Claimants argued that sharing should be based on consent (s.35 DPA 2018 and Article 8, Christian Institute case). The claim initially proceeded however, when the Claimant was given a chance of status the claim was abandoned. Meaning the issues have not been resolved.



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