The unconscionable immigration exemption in the UK DPA

Whilst I'm on the subject of Brexit, may I commend the effort of the Open Rights Group and the 3 million to launch a https://www.crowdjustice.com/case/immigrationexemption/ the immigration exemption in the UK's recently passed Data Protection Act. Schedule 2, paragraph 4 of the Act basically strips key GDPR protections from all UK immigrants in relation to anything to do with their immigration status. It needs to be read to be believed -

"Immigration

4(1)The GDPR provisions listed in sub-paragraph (2) do not apply to personal data processed for any of the following purposes—

(a)the maintenance of effective immigration control, or

(b)the investigation or detection of activities that would undermine the maintenance of effective immigration control,

to the extent that the application of those provisions would be likely to prejudice any of the matters mentioned in paragraphs (a) and (b).

(2)The GDPR provisions referred to in sub-paragraph (1) are the following provisions of the GDPR (the rights and obligations in which may be restricted by virtue of Article 23(1) of the GDPR)—

(a)Article 13(1) to (3) (personal data collected from data subject: information to be provided);

(b)Article 14(1) to (4) (personal data collected other than from data subject: information to be provided);

(c)Article 15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers);

(d)Article 17(1) and (2) (right to erasure);

(e)Article 18(1) (restriction of processing);

(f)Article 21(1) (objections to processing);

(g)Article 5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in sub-paragraphs (a) to (f).

(That is, the listed GDPR provisions other than Article 16 (right to rectification), Article 19 (notification obligation regarding rectification or erasure of personal data or restriction of processing) and Article 20(1) and (2) (right to data portability) and, subject to sub-paragraph (2)(g) of this paragraph, the provisions of Article 5 listed in paragraph 1(b).)

(3)Sub-paragraph (4) applies where—

(a)personal data is processed by a person (“Controller 1”), and

(b)another person (“Controller 2”) obtains the data from Controller 1 for any of the purposes mentioned in sub-paragraph (1)(a) and (b) and processes it for any of those purposes.

(4)Controller 1 is exempt from the obligations in the following provisions of the GDPR—

(a)Article 13(1) to (3) (personal data collected from data subject: information to be provided),

(b)Article 14(1) to (4) (personal data collected other than from data subject: information to be provided),

(c)Article 15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers), and

(d)Article 5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in paragraphs (a) to (c),

to the same extent that Controller 2 is exempt from those obligations by virtue of sub-paragraph (1). "

So let's be clear of the GDPR rights, in full, that this provision of a UK act of parliament is denying immigrants to the UK -

Article 13(1) to (3)

Information to be provided where personal data are collected from the data subject

1.  Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information:

(a) the identity and the contact details of the controller and, where applicable, of the controller's representative;

(b) the contact details of the data protection officer, where applicable;

(c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;

(d) where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party;

(e) the recipients or categories of recipients of the personal data, if any;

(f) where applicable, the fact that the controller intends to transfer personal data to a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article 46 or 47, or the second subparagraph of Article 49(1), reference to the appropriate or suitable safeguards and the means by which to obtain a copy of them or where they have been made available.

2.  In addition to the information referred to in paragraph 1, the controller shall, at the time when personal data are obtained, provide the data subject with the following further information necessary to ensure fair and transparent processing:

(a) the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;

(b) the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject or to object to processing as well as the right to data portability;

(c) where the processing is based on point (a) of Article 6(1) or point (a) of Article 9(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;

(d) the right to lodge a complaint with a supervisory authority;

(e) whether the provision of personal data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as whether the data subject is obliged to provide the personal data and of the possible consequences of failure to provide such data;

(f) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

3.  Where the controller intends to further process the personal data for a purpose other than that for which the personal data were collected, the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2.

Article 14(1) to (4) 

Information to be provided where personal data have not been obtained from the data subject

1.  Where personal data have not been obtained from the data subject, the controller shall provide the data subject with the following information:

(a) the identity and the contact details of the controller and, where applicable, of the controller's representative;

(b) the contact details of the data protection officer, where applicable;

(c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;

(d) the categories of personal data concerned;

(e) the recipients or categories of recipients of the personal data, if any;

(f) where applicable, that the controller intends to transfer personal data to a recipient in a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article 46 or 47, or the second subparagraph of Article 49(1), reference to the appropriate or suitable safeguards and the means to obtain a copy of them or where they have been made available.

2.  In addition to the information referred to in paragraph 1, the controller shall provide the data subject with the following information necessary to ensure fair and transparent processing in respect of the data subject:

(a) the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;

(b) where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party;

(c) the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject and to object to processing as well as the right to data portability;

(d) where processing is based on point (a) of Article 6(1) or point (a) of Article 9(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;

(e) the right to lodge a complaint with a supervisory authority;

(f) from which source the personal data originate, and if applicable, whether it came from publicly accessible sources;

(g) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

3.  The controller shall provide the information referred to in paragraphs 1 and 2:

(a) within a reasonable period after obtaining the personal data, but at the latest within one month, having regard to the specific circumstances in which the personal data are processed;

(b) if the personal data are to be used for communication with the data subject, at the latest at the time of the first communication to that data subject; or

(c) if a disclosure to another recipient is envisaged, at the latest when the personal data are first disclosed.

4.  Where the controller intends to further process the personal data for a purpose other than that for which the personal data were obtained, the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2. 

Article 15(1) to (3)

Right of access by the data subject

1.  The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data and the following information:

(a) the purposes of the processing;

(b) the categories of personal data concerned;

(c) the recipients or categories of recipient to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;

(d) where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period;

(e) the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing;

(f) the right to lodge a complaint with a supervisory authority;

(g) where the personal data are not collected from the data subject, any available information as to their source;

(h) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

2.  Where personal data are transferred to a third country or to an international organisation, the data subject shall have the right to be informed of the appropriate safeguards pursuant to Article 46 relating to the transfer.

3.  The controller shall provide a copy of the personal data undergoing processing. For any further copies requested by the data subject, the controller may charge a reasonable fee based on administrative costs. Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information shall be provided in a commonly used electronic form.

Article 17(1) and (2)

Right to erasure (‘right to be forgotten’)

1.  The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:

(a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

(b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;

(c) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);

(d) the personal data have been unlawfully processed;

(e) the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;

(f) the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).

2.  Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data.

Article 18(1)

Right to restriction of processing

1.  The data subject shall have the right to obtain from the controller restriction of processing where one of the following applies:

(a) the accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy of the personal data;

(b) the processing is unlawful and the data subject opposes the erasure of the personal data and requests the restriction of their use instead;

(c) the controller no longer needs the personal data for the purposes of the processing, but they are required by the data subject for the establishment, exercise or defence of legal claims;

(d) the data subject has objected to processing pursuant to Article 21(1) pending the verification whether the legitimate grounds of the controller override those of the data subject.

Article 21(1)

Right to object

1.  The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.

Article 5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in sub-paragraphs (a) to (f).

Principles relating to processing of personal data

1.  Personal data shall be:

(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);

(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’);

(c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);

(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’);

(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).

2.  The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).

Seriously. Read all of those schedule 2 part 4 provisions and re-read them. Then look at the GDPR protections they are denying your colleagues, friends, neighbours, family, community. Yes, that last one really means that UK law specifically denies immigrants the protection of the general principles relating to the processing of personal data.

There is no possibility this could withstand legal scrutiny whilst the UK is still in the EU but all bets are off come 29 March 2019.

Brexit Support for Open University Staff who are EU Nationals

The Open University's HR director sent the following message to all staff this morning.

Since the publication of the Brexit White Paper (which outlines the UK’s five key objectives once the UK leaves the European Union on 29 March 2019) my team and I have been giving considerable thought as to what we, the University, can do to support any colleagues who may be affected by changes to the UKs migration policies after this date.

We are in the privileged situation at the OU where we have a diverse range of staff working here, who have made, and who continue to make, an enormous contribution to the University across a range of roles and disciplines. We recognise that the diversity of our colleagues is one of our greatest assets so, despite the current uncertainty that Brexit has brought to many of our colleagues we want to encourage and support anyone who is an EU national to stay working with the OU, regardless of their role or length of service.

In order to do this we will:

• Wherever possible, support our employees who are either directly or indirectly affected by these policy changes to stay in the UK and stay working with the OU
• Support affected colleagues through any process they may need to participate in, in order for them to stay living and working within the UK, and provide them with any documentation or other resources to assist with this

We have engaged with the OU International Community Support Network  to understand the issues and what support is likely to be needed to ensure the delivery of this commitment and will be able to provide more information once we have the detail of this.

As a priority, we will start by looking at very practical support such as:

• The provision of legal briefing sessions so staff can understand the implications for them and their families (both face to face and online for those who can’t attend in person)
• We are looking at how we can assist employees with financial support for application fees for the EU Settlement Scheme and reviewing existing processes for those applying for British Citizenship.
• A direct line to HR support to speed up the issuing of any required information. This can be accessed by emailing: staff-brexit-enquiries@open.ac.uk
• A central shared area where all documents and communications can be accessed easily for reference
• The creation of a bank of useful resources for international staff (including reference letters and practical support)

I understand that this is an incredibly unsettling time for anyone who could be affected by the UK’s decision to leave the EU and I know that we have colleagues who are worried and anxious about their futures in the UK. Whilst I can’t alleviate this with one message, I want to reassure anyone impacted by Brexit that the OU is totally committed to the principles I have outlined above and as an organisation will do all that we can to support you and your family members and/or dependants over the forthcoming months.  

Additional support can be accessed through the OU International Community Support Network. This is a self-organised staff diversity network which is open to everyone (regardless of nationality) which has been set up to support staff and students who are affected by the results of the EU Referendum. Support and advice can also be accessed through the Employee Assistance Programme. This is a free and confidential service, available to all OU employees and their immediate family members. It offers expert advice, information, counselling and support and is available 24 hours a day, 7 days a week.

You can also access the government website for the latest information.

We have committed to keep you updated and there will be a series of further communications leading up to March to ensure you are informed and supported. In the meantime, if you have any questions or concerns please contact: staff-brexit-enquiries@open.ac.uk