Open Rights Group & Anor, R (On the Application Of) v Secretary of State for the Home Department & Anor [2021] EWCA Civ 1573 (29 October 2021)

Open Rights Group & Anor, R (On the Application Of) v Secretary of State for the Home Department & Anor [2021] EWCA Civ 1573 (29 October 2021)

The Immigration Exemption in Schedule 2 to the Data Protection Act 2018 is incompatible with Article 23(2) of the UK GDPR. The Court has jurisdiction, derived from retained EU law, to suspend relief for incompatibility in exceptional cases for compelling reasons of legal certainty. Suspension is justified for both public and private sectors until 31 January 2022 to allow legislative amendment, given the disruption and legal uncertainty immediate disapplication would cause.

Citation
[2021] EWCA Civ 1573
Parties
Claimant/appellant: Open Rights Group; Claimant/appellant: the3million; Defendant/respondent: Secretary of State for the Home Department; Defendant/respondent: Secretary of State for Digital, Culture, Media and Sport; Intervener: Liberty; Intervener: Information Commissioner
Jurisdiction
England and Wales
Judgment Date
29 October 2021
Procedural Posture
Judicial Review / Appeal Judgment and Remedies
Outcome
Declaration of incompatibility suspended until 31 January 2022; liberty to apply for extension if unexpected circumstances arise.
Legal Topics
GDPR Compliance, Immigration Exemption, Suspension of Relief, Declaratory Orders, Retained EU Law
Data Protection Administrative Law Constitutional Law GDPR Compliance Immigration Exemption Suspension of Relief Declaratory Orders Retained EU Law

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Parties

Open Rights Group

Claimant/appellant

the3million

Claimant/appellant

Secretary of State for the Home Department

Defendant/respondent

Secretary of State for Digital, Culture, Media and Sport

Defendant/respondent

Liberty

Intervener

Information Commissioner

Intervener

Procedural Posture

Judicial Review / Appeal Judgment and Remedies

Legal Issues

  1. 1 Is the Immigration Exemption in Schedule 2 to the Data Protection Act 2018 compatible with Article 23 of the UK GDPR?
  2. 2 Does the Court have jurisdiction to suspend relief for incompatibility with retained EU law?
  3. 3 Should suspension of relief apply to public and private sectors, and for what duration?

Ratio Decidendi

The Immigration Exemption in Schedule 2 to the Data Protection Act 2018 is incompatible with Article 23(2) of the UK GDPR. The Court has jurisdiction, derived from retained EU law, to suspend relief for incompatibility in exceptional cases for compelling reasons of legal certainty. Suspension is justified for both public and private sectors until 31 January 2022 to allow legislative amendment, given the disruption and legal uncertainty immediate disapplication would cause.

Court Disposition

Declaration of incompatibility suspended until 31 January 2022; liberty to apply for extension if unexpected circumstances arise.

Orders

  • Declaration that the Immigration Exemption in Paragraph 4 of Part 1 of Schedule 2 to the Data Protection Act 2018 is incompatible with retained EU law as it does not satisfy Article 23(2) of the UK GDPR.
  • Suspension of the declaration until 31 January 2022 to allow amendment of the Data Protection Act 2018.