The Open Rights Group & Anor, R (On the Application Of) v The Secretary of State for the Home Department & Anor (Rev2) [2021] EWCA Civ 800 (26 May 2021)

The Open Rights Group & Anor, R (On the Application Of) v The Secretary of State for the Home Department & Anor (Rev2) [2021] EWCA Civ 800 (26 May 2021)

The Immigration Exemption in the Data Protection Act 2018 is unlawful because it does not contain specific provisions in accordance with the mandatory requirements of Article 23(2) GDPR. The absence of such a legislative measure means the Exemption is an unauthorised derogation from fundamental rights and incompatible with the Regulation. Article 23(2) requires any derogation to be effected by a legislative measure that is tailored, legally enforceable, and contains specific, precise provisions on the listed topics to the extent relevant.

Citation
[2021] EWCA Civ 800
Parties
Appellant/claimant: The Open Rights Group; Appellant/claimant: the3million; Respondent/defendant: The Secretary of State for the Home Department; Respondent/defendant: The Secretary of State for Digital, Culture, Media and Sport; Intervener: Liberty; Intervener: The Information Commissioner
Jurisdiction
England and Wales
Judgment Date
26 May 2021
Procedural Posture
Judicial Review Appeal / Court of Appeal (civil Division) Appeal From High Court
Outcome
Appeal allowed
Legal Topics
GDPR Article 23, Immigration Exemption, Fundamental Rights, Proportionality, Necessity, Legislative Derogation, Supremacy of EU Law
Data Protection Immigration Law EU Law Human Rights GDPR Article 23 Immigration Exemption Fundamental Rights Proportionality +3 more

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Parties

The Open Rights Group

Appellant/claimant

the3million

Appellant/claimant

The Secretary of State for the Home Department

Respondent/defendant

The Secretary of State for Digital, Culture, Media and Sport

Respondent/defendant

Liberty

Intervener

The Information Commissioner

Intervener

Procedural Posture

Judicial Review Appeal / Court of Appeal (civil Division) Appeal From High Court

Legal Issues

  1. 1 Whether the Immigration Exemption in the Data Protection Act 2018 is compliant with Article 23 of the GDPR and/or the Charter of Fundamental Rights of the European Union
  2. 2 Whether the Exemption contains the specific provisions required by Article 23(2) GDPR
  3. 3 Whether the Exemption is a necessary and proportionate measure in a democratic society

Ratio Decidendi

The Immigration Exemption in the Data Protection Act 2018 is unlawful because it does not contain specific provisions in accordance with the mandatory requirements of Article 23(2) GDPR. The absence of such a legislative measure means the Exemption is an unauthorised derogation from fundamental rights and incompatible with the Regulation. Article 23(2) requires any derogation to be effected by a legislative measure that is tailored, legally enforceable, and contains specific, precise provisions on the listed topics to the extent relevant.

Court Disposition

Appeal allowed

Orders

  • Declaration that the Immigration Exemption is incompatible with Article 23 of the GDPR and unlawful
  • Remitted for further consideration of remedy if necessary