Immigration exception to data protection found unlawful. Again

The Court of Appeal has declared the government’s second attempt at an immigration exception for normal data protection law to be unlawful. The judgment in R (On the Application Of The 3Million) v Secretary of State for the Home Department [2023] EWCA Civ 1474 upholds that of the High Court below, which we covered previously here: Amended data protection exemption for migrants declared unlawful. The case was brought by the 3million group amongst others and they have a write up on their website.

This is by-the-by, but I’ve been ruminating a lot recently on the absence of a proper discipline of or principles to immigration law. Paragraphs 45 to 50 of this judgment provide an illustration of how properly structured “immigration law” might work in practice. Specific provisions would be needed beyond general fall-backs on human rights or administrative law. Binding rules would be needed rather than policies. And a proper role for Parliament would be built-in as a safeguard. As the judges go on to say at paragraph 51, this does not mean flexibility should be eliminated. Immigration law requires flexibility. But it should be bounded by clearly defined law and scrutiny.