CJ (International Video-Link Hearing: Data Protection) Jamaica
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Wikeley,O'Connor |
| Judgment Date | 12 March 2019 |
| Neutral Citation | [2019] UKUT 126 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 12 March 2019 |
[2019] UKUT 126 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President), Wikeley UTJ and O'Connor UTJ
Mr R de Mello and Mr T Muman instructed by J M Wilson, for the Claimant;
Mr S Kovats QC instructed by the Government Legal Department, for the Secretary of State.
AJ (s 94B: Kairie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC); [2018] Imm AR 976
KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53; [2018] 1 WLR 5273; [2019] 1 All ER 675; [2019] Imm AR 400; [2019] INLR 41
MM (Uganda) and Another v Secretary of State for the Home Department [2016] EWCA Civ 617; [2016] Imm AR 954; [2017] INLR 15
R (on the application of Kiarie) v Secretary of State for the Home Department; R (on the application of Byndloss) v Secretary of State for the Home Department[2017] UKSC 42; [2017] 1 WLR 2380; [2017] 4 All ER 811; [2017] Imm AR 1299; [2017] INLR 909
R (on the application of MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705; [2016] 1 WLR 5093; [2017] Imm AR 53; [2017] INLR 47
R (on the application of Nixon and Another) v Secretary of State for the Home Department [2018] EWCA Civ 3
Schrems v Data Protection Commissioner (Case C-362/14); [2016] QB 527; [2016] 2 WLR 873; [2016] 2 CMLR 2
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166; [2011] 2 WLR 148; [2011] 2 All ER 783; [2011] Imm AR 395; [2011] INLR 369
Borders, Citizenship and Immigration Act 2009, section 55
Data Protection Act 2018, sections 1–3, 5, 6, 8, 10, 15, 22, 207 & 209; paragraph 34 of Schedule 1; paragraphs 4, 5 & 14 of Sehedule 2
European Convention on Human Rights, Articles 8 & 14
Human Rights Act 1998, section 6
Immigration (European Economic Area) Regulations 2016, regulation 41
Immigration Rules HC 395 (as amended), paragraphs A398–399
Nationality, Immigration and Asylum Act 2002, sections 94B & 117A-D
Regulation 2016/679/EU (“the General Data Protection Regulation”), Recitals 2 & 25; Articles 2–4, 6, 9, 10, 17, 21, 23, 44–46 & 49
Treaty on the Functioning of the European Union, Article 16
UK Borders Act 2007, sections 32 & 33
Vienna Convention on Consular Relations 1963, Articles 5, 31, 33, 35 & 70
Vienna Convention on Diplomatic Relations 1961, Articles 22 & 27.2
Human rights — Article 8 of the ECHR — private and family life — “unduly harsh” — KO (Nigeria)[2018] UKSC 53 considered — procedure and process — out-of-country appeals — discrimination — procedural irregularities — international video-link hearing — data protection procedural fairness
The Claimant, a citizen of Jamaica, entered the United Kingdom at the age of eight in 2001 on a visitor's visa. He overstayed and his immigration status was never regularised. He and his partner, a British citizen, had a daughter in October 2012, who was also a British citizen. He was convicted of several offences, culminating in convictions in April 2015 for conspiracy to supply crack cocaine and heroin, for which he was sentenced to three years' imprisonment. In July 2015 the Secretary of State for the Home Department served notice of the decision to remove the Claimant to Jamaica. The Claimant applied for further leave to remain based on his family life. In September 2016 the Secretary of State refused the application for leave, finalised the deportation decision and issued a certificate under section 94B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). As a result, the Claimant could only challenge that decision by way of an out-of-country appeal once he had left the United Kingdom. In April 2017 the Claimant was deported to Jamaica. He lodged his appeal with the First-tier Tribunal (“FtT”) against the Secretary of State's decision to refuse his human rights claim in May 2017. The Claimant's challenge to the section 94B certificate by way of judicial review was refused by the Court of Appeal in October 2017.
The FtT sat in Birmingham in July 2018 to hear the appeal. The Claimant participated in the hearing, effectively under protest, by way of a video-link from the British High Commission (“the BHC”) in Kingston, Jamaica. The FtT dismissed the Claimant's human rights appeal. The bulk of the decision related, however, to a preliminary issue about the lawfulness of the video-link arrangement. The FtT rejected the Claimant's submission that the Home Office's proposed methods of transferring his personal data involved a breach of Regulation 2016/679/EU, otherwise known as the General Data Protection Regulation (“the GDPR”).
On appeal, the Upper Tribunal considered the Claimant's two main grounds of appeal: Part A concerned the preliminary issue and the EU data protection provisions, while Part B referred to various human rights grounds, both procedurally and substantively. The data protection grounds under Part A specifically concerned the Claimant's right to object to the processing of his personal data, his right to the erasure of his personal data that had been processed and the alleged transfer of his personal data to a third country. The Claimant also submitted that he was the victim of unlawful discrimination by reason of the processing of his personal data and because there was no objective justification for treating his case differently from that of a claimant under the Immigration (European Economic Area) Regulations 2016, who may apply for permission to be admitted temporarily to the United Kingdom solely for the purpose of making submissions in person at the appeal hearing.
Held, dismissing the appeal:
(1) The FtT had properly found that the Claimant's right to object to the processing of his personal data did not apply because of the cumulative effect of the qualification in Article 21(1) of the GDPR, namely that the data controller had demonstrated compelling legitimate grounds; the application of the exemptions in paragraphs 5(3)(a) and (c) of Schedule 2 to the Data Protection Act 2018 (“the DPA 2018”), namely “necessary for the purpose of, or in connection with, legal proceedings” or “otherwise necessary for the purposes of establishing, exercising or defending legal rights”; and paragraph 14(3) of Schedule 2 to the DPA 2018, where its application “would be likely to prejudice judicial independence or judicial proceedings”. In challenging that finding, the Claimant argued that the FtT was duty-bound to disapply the section 94B certificate as there was a less restrictive measure available, namely to permit him to return to give live evidence before the FtT in Birmingham. That argument was unconvincing as the FtT was fixed with both a valid section 94B certificate and lawful deportation, which then acted as the springboard for the inquiry as to whether the video-link arrangement was necessary. Article 23 of the GDPR clearly envisaged that there might be restrictions on a data subject's rights, including the right to object. Any such restriction must be “a necessary and proportionate measure in a democratic society to safeguard” one of several specified interests, which included both “the protection of judicial independence and judicial proceedings” and “the enforcement of civil law claims” (paras 27 – 38).
(2) The Claimant's challenge concerning the statutory right to erasure under Article 17(1)(a) of the GDPR revolved around the retention of the appeal bundle by the BHC. The Secretary of State had provided assurances that the staff handling the Claimant's data at the BHC were Home Office staff and that the appeal bundle would be retained for no more than seven days after the hearing. The FtT had properly concluded that the assurances were reliable and that any data protection breach was unlikely (paras 39 – 40).
(3) The arrangements made to enable the Claimant to give evidence in his human rights appeal by video-link between the BHC in Kingston, Jamaica and the Tribunal's hearing centre in Birmingham did not involve the transfer of data to a third country, for the purposes of Article 44 of the GDPR. Principles of public international law guaranteed the inviolability of diplomatic and consular premises. Both the GDPR and the DPA 2018 had a degree of extra-territorial effect. It made good sense for the GDPR to apply to an EU Member State's diplomatic and consular premises overseas, rather than to treat any data transfer to such premises as a transfer to a third country. That was because for all practical purposes the data remained under the sole control of the Member State. Even if that were not the case, the transfer was lawful under the derogation in Article 49(1)(e) of the GDPR as the transfer was necessary for the establishment, exercise or defence of legal claims (paras 41 – 55).
(4) The Claimant's submissions regarding his discrimination claim conflated and confused two distinct matters, namely data protection rights and immigration rights. So far as data protection was concerned, the GDPR and the DPA 2018 did not discriminate on the grounds of nationality. As regards immigration, the Claimant was undeniably a third country national. While EU citizens had the right of free movement, subject to carefully defined restrictions, non-EU citizens were subject to the Immigration Acts and had no such rights. By virtue of that fundamental distinction, EU and non-EU citizens could not be seen as being in an analogous position in respect of immigration. It followed that discrimination on the basis of nationality was entirely permissible in, and indeed fundamental to, immigration law. The Claimant's submissions on discrimination were founded on the premise that, whenever any immigration decision involved the processing of personal data, a non-EU citizen might be given the same rights as an EU citizen. That was not what the law mandated (paras 57 – 62).
(5) The FtT had...
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