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How the Data Protection Bill will put asylum seekers’ lives in danger

The Home Office has already shown it plays fast and loose with vulnerable people’s data. 

For most of us, data protection law is a shield, not a sword. It works away in the background, keeping our data private when we need it to be. But for vulnerable groups, including migrants, data protection often plays a much more active role. 

Asylum seekers routinely disclose to the Home Office information which could cost them or their family their lives were it to fall into the wrong hands. This could be details of a same-sex relationship, a minority religious belief, a criminal offence, or a political affiliation.

That is why civil society groups and lawyers are extremely concerned about the government’s proposal to remove key data protections from individuals where they are “likely…to prejudice immigration control”. Almost by definition, these are likely to be some of the most vulnerable and marginalised people in our society. The proposal is hidden away in a Schedule to the Data Protection Bill, which receives its important Second Reading in the House of Commons on 5 March 2018.

A case I recently worked on illustrates how dangerous allowing the government to play fast and loose with data can be. As reported elsewhere, my client successfully sued the Home Office for damages. In a misguided attempt to verify the authenticity of certain documents, the Home Office shared records of his persecution in his country of origin with those same persecuting authorities. The Home Office’s actions potentially put his and his family’s life at risk, and made future return to his country of origin more difficult. 

The Home Office eventually agreed to pay my client £15,500 in damages. The central plank of that claim was the Data Protection Act 1998. Unfortunately, the Home Office’s conduct of the case did not instil confidence that this breach was a one-off: it denied liability for a very long period, and still refuses to apologise. When we asked the Home Office under Freedom of Information laws whether there were other similar cases, its response was worrying:

to identify the required information would require the detailed manual interrogation of every asylum claim lodged over the last five years. This equates to more than 100,000 cases..” 

It seems reasonable, then, to be concerned that the data of many more asylum seekers may have been misused by the Home Office. 

This is not the first such case. In 2016, the Home Office was ordered to pay damages ranging from £2,500 to £12,500 to persons named in a spreadsheet listing families returned to their country of origin. The Home Office had mistakenly posted this sensitive document online.

These may be eye-catching examples, but data protection law is a day-to-day essential in thousands of immigration-related cases. For example, where an individual is being detained in an immigration removal centre and wishes to challenge their detention, their lawyers will almost always need to obtain the Home Office's internal paperwork using the “subject access” right in data protection legislation before advising them. The Home Office file will show whether there are barriers to removing the detainee from the UK and whether the Home Office has correctly addressed matters such as the detainee’s mental health and torture history. It is these matters that render detention unlawful and mandate release. 

For example, a recent case showed that the Home Office had received independent evidence that a detainee was a torture victim who should not be detained. It had, however, dismissed that evidence, with the consequence that he remained detained, unnecessarily and unlawfully, for another eight months. The Bill simply cancels the right to access this wherever the government deems its immigration interests to be affected. If paperwork is withheld, vulnerable people are likely to be falsely imprisoned as a result.

At any one time there are approximately 3,000 detainees being held in Immigration Removal Centres in the UK, and around 10 times that number pass through those centres in a given year. Many should not be there (indeed, there are growing calls for an end to the system altogether). So preventing detainees' lawyers from accessing their files will affect hundreds of cases concerning individual liberty in any one year, some of which are for persons who have been detained for periods counted in years, not months. 

The same careful process is required in other contexts, such as challenging a decision regarding the status of a potential victim of human trafficking. One of my clients has a highly traumatic trafficking history within the UK, and public authority documents have been important in reconstructing a past clouded by incomplete memories of time, place and person. This too relied upon use of the “subject access” right.

Other data protection rights, such as the right to restrict unfair processing of information, are also an important bulwark against the disproportionate sharing of migrants’ data between public authorities, which is increasingly pervasive.

The government claims that the proposed restriction is “targeted” on only some aspects of data protection law and would be applied selectively in practice. But it restricts principles that lie at the heart of data protection law, such as Article 5(1)(a) and (b) of the EU General Data Protection Regulation, which require data to processed “fairly” and transparently and for “specified..and legitimate purposes”. But serious doubts remain. History is littered with supposedly “targeted” laws that took on a life of their own once interpretation passed into the hands of those tasked with applying them.

It is difficult to understand why the government thinks it needs to take such a draconian step. Perhaps making legal accountability more difficult is the point. That, and perhaps a hubristic Brexit-inspired impulse to re-draw the boundaries of EU data protection law to better reflect this government’s expressed “hostile environment” for undocumented migrants. In reality, the migrant exemption would create a dangerously discriminatory two-tier data protection regime, further marginalising some of the most vulnerable people in society.

But the “migrant exemption” is not just bad law from the point of view of victims; it is highly likely to be found to be unlawful as going beyond the boundaries of the limited derogation provision in the EU General Data Protection Regulation (which becomes directly effective in the UK on 25 May 2018). And it is bad politics too: it would mean that the UK’s data protection regime fell short of providing equivalent data protections post-Brexit and could therefore prevent the free exchange of data with EU member states. That is a very real possibility: the EU Court of Justice previously struck down data arrangements between the US and the EU and it would not hesitate to do so in relation to the UK.

But the most pressing need is people like my client, who rely on the Data Protection Act to vindicate their fundamental human rights. There will be many others like him in the future. The Data Protection Bill should not take those rights away from them.

For further information about the case, see further here.

Daniel Carey is a solicitor with Deighton Pierce Glynn Solicitors.

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I’ll miss the youthful thrill of Claire’s Accessories – but the tween Mecca refused to grow up

From an adolescent rite of passage to struggling to stay open: how the tackiest shop on the high street lost its shine.

The first day I was allowed to go into “town” (hailing from rural Essex, that’s the local shopping centre, not London) with a friend – unsupervised by a parent – was a real cornerstone of my childhood.

We were 13, and looking back, we had neither mobile phones nor contingency plans, and my mum must have been sat at home for the entire two hours scared shitless, waiting for when she could pick me up again (by the Odeon carpark, 3pm sharp).

Finally free from the constraints of traipsing around department stores bound by the shackles of an adult, my friend and I had the most grown-up afternoon we could imagine; Starbucks Frappuccinos (size: tall – we weren’t made of money), taking pictures on a pink digital camera in the H&M changing rooms, and finally, making a beeline for tween Mecca: Claire’s Accessories.

As a beauty journalist, I’m pretty sure Saturdays spent running amok among the diamante earrings, bow hairbands and fluffy notebooks had an influence on my career path.

I spent hours poring over every rack of clip-on earrings, getting high on the fumes of strawberry lipbalm and the alcohol used to clean freshly pierced toddlers’ ears.

Their slogan, “Where getting ready is half the fun”, still rings true for me ten years on, as I stand on the edge of dancefloors, bored and waiting until my peers are suitably drunk to call it a night, yet revelling in just how great my painstakingly applied false lashes look.

The slogan on a Claire's receipt. Photo: Flickr

On Monday, Claire’s Accessories US filed for bankruptcy, after they were lumbered with insurmountable debts since being taken over by Apollo Global Management in 2007. Many of the US-based stores are closing. While the future of Claire’s in the UK looks uncertain, it may be the next high street retailer – suffering from the surge of online shopping – to follow in Toys R Us’ footsteps.

As much as I hate to say it, this is unsurprising, considering Claire’s commitment to remain the tackiest retailer on the high street.

With the huge rise of interest in beauty from younger age groups – credit where credit’s due, YouTube – Claire’s has remained steadfast in its core belief in taffeta, rhinestone and glitter.

In my local Superdrug (parallel to the Claire’s Accessories, a few doors down from the McDonald’s where we would sit, sans purchase, maxed out after our Lipsmacker and bath bomb-filled jaunt), there are signs plastered all over the new Makeup Revolution concealer stand: “ENQUIRE WITH STAFF FOR STOCK”. A group of young girls nervously designate one among them to do the enquiring.

Such is the popularity of the three-week-old concealer, made infamous by YouTube videos entitled things like “I CANNOT BELIEVE THIS CONCEALER!” and “FULL COVERAGE AND £4!!!”, no stock is on display for fear of shoplifters.

The concealer is cheap, available on the high street, comparable to high-end brands and favoured by popular YouTube “beauty gurus”, giving young girls a portal into “adult life”, with Happy Meal money.

It’s unlikely 13-year-olds even own eye bags large enough to warrant a full coverage concealer, but they’re savvy enough to know that they can now get good quality makeup and accessories, without going any higher than Claire’s price points.

They have naturally outgrown a retailer that refuses to grow with them; it’s simply not sustainable on Claire’s part to sell babyish items to a market who no longer want babyish things.

Adulthood is catching up with this new breed of teenagers faster than ever, and they’ve decided it’s time to put away childish things.

Tweenagers of 2018 won’t miss Claire’s Accessories if it goes. The boarded-up purple signage would leave craters in shopping centre walls soon to be filled with the burgundy sheen of a new Pret.

But I will. Maybe not constantly – it’s not as if Primark has stopped selling jersey dresses, or Topshop their Joni jeans – it’ll be more of a slow burn. I’ll mourn the loss of Claire’s the next time a pang of nostalgia for blue-frosted shadow hits me, or when it’s Halloween eve and I realise I’m bereft of a pair of cat ears. But when the time comes, there’s always Amazon Prime.

Amelia Perrin is a freelance beauty and lifestyle journalist.