Upper Tribunal (Immigration and asylum chamber), 2019-03-12, [2019] UKUT 126 (IAC) (CJ (international video-link hearing: data protection))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Wikeley, Upper Tribunal Judge O’Connor |
| Status | Reported |
| Date | 12 March 2019 |
| Published date | 15 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | international video-link hearing: data protection |
| Hearing Date | 25 January 2019 |
| Appeal Number | [2019] UKUT 126 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
CJ (international video-link hearing: data protection) Jamaica [2019] UKUT 00126(IAC)
THE IMMIGRATION ACTS
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Heard at Field House on 24 and 25 January 2019 |
Decision & Reasons Promulgated |
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE WIKELEY
UPPER TRIBUNAL JUDGE O’CONNOR
Between
CJ
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr R de Mello and Mr T Muman instructed by J M Wilson,
Solicitors
For the respondent: Mr S Kovats QC, instructed by the Government Legal Department
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The arrangements made to enable the appellant to give evidence in his human rights appeal by video link between the British High Commission in Kingston, Jamaica and the Tribunal’s hearing centre in the United Kingdom did not involve the transfer of data to a third country, for the purposes of the General Data Protection Regulation ((EU) 2016/679).
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Even if that were not the case, the transfer was lawful under the derogation in Article 49(1)(e) of the Regulation (transfer necessary for establishment, exercise or defence of legal claims).
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)
Unless and until a Tribunal or Court directs otherwise, the claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify the claimant or any member of the claimant’s family. Failure to comply with this direction could lead to contempt of court proceedings.
DECISION AND REASONS
Introduction
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This is the decision of the panel. It concerns an appeal against the decision of the First-tier Tribunal (‘the FTT’) which sat in Birmingham on 17 July 2018 to hear the appellant’s appeal against the respondent’s deportation decision. The appellant, who by that date had already been deported, participated in the hearing (effectively under protest) by way of a video-link from the British High Commission (‘the BHC’) in Kingston, Jamaica. In summary, the appellant’s case is that the FTT materially erred in law in dismissing his preliminary objection to the video-link arrangement. The appellant contended that this method of giving his live evidence necessarily involved a breach of both EU and domestic data protection law. He also argued that he was the victim of unlawful discrimination by reason of the processing of his personal data, including the transmission of the appeal bundles, through the link to the BHC in Kingston.
The factual background
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The bare facts of the case and the chronology are not in dispute. The appellant was born in Jamaica on 30 April 1993 and is a Jamaican citizen. He arrived in the UK at the age of 8 on a 6-month visitor’s visa in December 2001. He became an overstayer in June 2002 and his immigration status was never regularised. He and his partner (a British citizen) had a daughter in October 2012 (who is also a British citizen). He has been convicted of several offences, starting at the age of 15 (three offences of robbery in September 2008, two counts of burglary in 2011, possession of cannabis in July 2013 and travelling on the railway without a ticket in September 2014), culminating in convictions at Winchester Crown Court on 14 April 2015 for conspiracy to supply crack cocaine and heroin. He was sentenced to 3 years’ imprisonment, to be served concurrently, for each of those latter offences.
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The appellant was served with IS151A papers as an overstayer on 14 June 2013. Following his conviction for the last and by far the most serious offences, he was served on 29 July 2015 with notice of the respondent’s decision to remove him to Jamaica. In August 2015 he submitted representations arguing he should not be removed because of his durable relationship with a British citizen and young child. In March 2016 the appellant applied for further leave to remain (‘FLR’) based on his family life. On 15 April 2016 the respondent served the appellant with a stage 1 deportation decision under section 32(5) of the UK Borders Act 2007. In August 2016, following his release from prison, the appellant was immediately detained under the Immigration Acts. On 22 September 2016 the respondent refused the appellant’s FLR application, finalised the stage 2 deportation decision and issued a certificate under section 94B of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). As a result, of course, the appellant could only challenge that decision by way of an out of country appeal once he had left the UK: see section 92(3)(a) of the 2002 Act.
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On 7 April 2017 the appellant was deported to Jamaica (there being no statutory bar on deportation before an appeal is lodged: see section 79(3) of the 2002 Act) and on 5 May 2017 he lodged his appeal with the FTT against the respondent’s decision of 22 September 2016 to refuse his human rights claim. This appeal was brought under section 82(1)(b) of the 2002 Act. Meanwhile, the appellant’s challenge to the section 94B certificate by way of judicial review reached the end of the road when it was dismissed by the Court of Appeal on 24 October 2017. It followed that the sole substantive issue before the FTT was whether the respondent’s decision of 22 September 2016 was unlawful under section 6 of the Human Rights Act 1998. As the appellant fell within the definition of a foreign criminal (section 117D(2) of the 2002 Act), the FTT was charged with assessing the public interest in his deportation, bearing in mind the possibility that he might fall within one of the exceptions in section 117C(3).
The decision of the First-tier Tribunal
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Following various case management directions, a three-judge panel of the FTT (Judge Clements P, Designated FTT Judge McCarthy and FTT Judge Carter) duly heard the appellant’s appeal, as noted above, in Birmingham on 17 July 2018. In the morning session the FTT heard legal argument from counsel on the preliminary issue relating to the lawfulness of the proposed video-link facilities. In the afternoon, the FTT having decided to dismiss the preliminary objection, the panel proceeded to hear the substantive human rights appeal. On 14 August 2018 the FTT promulgated its detailed and lengthy decision on the appeal (running to some 58 pages and 314 paragraphs).
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In short, the FTT dismissed the appellant’s human rights appeal. However, the bulk of the FTT’s decision and reasoning related to the preliminary issue about the lawfulness of the video-link arrangement. The FTT recorded that the appellant had given notice that he did not consent to giving oral evidence by the video-link with the BHC in Jamaica (or for the appeal bundle to be electronically transmitted to the BHC). The appellant argued that the Home Office’s proposed methods of transferring his personal data involved a breach of Regulation (EU) 2016/679, otherwise known as the General Data Protection Regulation (‘the GDPR’).
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On the day of the hearing, the FTT gave summary reasons for its determination on the preliminary issue in the following terms (FTT decision at paragraph [126]):
“Decision:
The essential question we have had to decide in this preliminary hearing is whether the transfers of data via video link and of the appeal bundle from the UK to Jamaica would entail any breach of data protection law.
We have decided that it would not.
We agree with the parties that the GDPR applies to all of the processing we have been considering.
We do not however consider it necessary, for the purposes of this preliminary matter, to consider the appropriateness of the safeguards in place, the effective rights or remedies available to [CJ] as,
a) either there is no transfer of personal data to a third country such that article 46 does not arise; or
b) assuming there has been a transfer to a third country, the derogation under article 49(1)(e) applies such that the transfers are necessary for the establishment, exercise or defence of legal claims.
We do not consider that any issue around the lack of a mandatory provision requiring retention within the EU is relevant to this case, noting in any event that there is not to be any retention of [CJ]’s personal data outside of the EU beyond 7 days unless [CJ] wishes himself to retain a copy of the bundle, which of course would be his choice and is highly unlikely to give rise to any breach of data protection.
In these circumstances, we have taken the view that the video-link may go ahead and the bundle be transferred.
Full written reasons will be given in the written determination of this appeal.”
The application for permission to appeal
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On 11 September 2018 the appellant made an application to the FTT for permission to appeal to the Upper Tribunal. The grounds of appeal as set out in the application were divided into two parts – 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.
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On 19 September 2018 the FTT Chamber President, who had...
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