Immigration Exemption Update

October 11th, 2021

Back in late May 2021, it will be recalled that the Court of Appeal found the immigration exemption in para 4 of Schedule 2 to the Data Protection Act 2018 to be unlawful in its failure to comply with Article 23(2) GDPR: see the post here. The judgment made clear that the question of relief would be a matter for further submissions. A hearing was held on the question of relief on 8 October 2021, at the end of which the Court of Appeal announced in open court its decision. The immigration exemption will be declared to be unlawful, but that declaration will be suspended until 31 January 2022. In other words, the Government has until the end of January 2022 to introduce and bring into effect legislation amending the exemption, so as to avoid harm to the public interest. If it fails to do so, the exemption will be disapplied from that date. The Government’s current stated intention is to amend para 4 by means of regulations made under section 16 DPA. The reasons for that ruling will be handed down in due course.

Christopher Knight

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