CJ v Secretary of State for the Home Department

Personal data used to enable an out-of-country immigration appeal to be heard by video link at a United Kingdom diplomatic or consular post is not transferred to a third country merely because the post is overseas. The data remains under the sole control of the Member State and is protected by the international-law safeguards applying to mission premises.

In any event, if there were such a transfer, it was lawful under Article 49(1)(e) of the General Data Protection Regulation because it was necessary for the establishment, exercise or defence of legal claims. A data subject’s right to object did not prevent necessary processing for judicial proceedings or legal rights where the applicable statutory exemptions applied.

The appellant, a Jamaican national who had been deported, appealed from the First-tier Tribunal’s dismissal of his human-rights challenge to the Secretary of State’s deportation decision. Because a section 94B certificate required an out-of-country appeal, he gave evidence from the British High Commission in Kingston by video link.

Before the First-tier Tribunal, he objected to the video link and electronic transmission of his appeal bundle. He alleged breaches of data-protection law and discrimination. The First-tier Tribunal rejected the objection and later dismissed the Article 8 appeal.

The Upper Tribunal considered whether the arrangements involved an unlawful international transfer of personal data, whether objections and erasure rights prevented the processing, whether there was discrimination, and whether the procedure and substantive deportation decision disclosed an error of law.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. A valid section 94B certificate and lawful deportation meant that the appeal had to proceed from abroad. The Tribunal was not empowered to set aside that certificate.

2. The appellant’s right to object under Article 21(1) of the General Data Protection Regulation did not prevent the necessary processing of his data for the appeal. The processing was justified by compelling legitimate grounds and by the exemptions for legal proceedings, legal rights, and the protection of judicial proceedings in the Data Protection Act 2018. Those exemptions were compatible with Article 23 of the Regulation. “Civil law” in Article 23 was used in contrast to criminal law and included a public-law immigration appeal.

3. The video-link and bundle arrangements did not involve a transfer of personal data to a third country for Chapter V purposes. The relevant processing remained under the sole control of United Kingdom officials at British mission premises. The territorial provisions of the Regulation and the inviolability of diplomatic and consular premises supported that conclusion. Schrems v Data Protection Commissioner [2016] QB 527 did not address that special position. Alternatively, any transfer was lawful under Article 49(1)(e), since it was necessary for the exercise of the appellant’s legal claim.

4. The alleged comparison with EEA nationals who might obtain temporary admission under regulation 41 was false. EU and non-EU nationals are not in an analogous position regarding immigration rights. The data-protection regime itself did not discriminate by nationality.

5. Applying R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, the question was whether the out-of-country procedure afforded guaranteed effectiveness and fairness. On the facts, the appellant participated effectively and the sophisticated video-link arrangements were fair.

6. On Article 8, the First-tier Tribunal’s conclusion that deportation would not be unduly harsh for the appellant’s daughter rested on sustainable factual findings. KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 confirmed that the seriousness of offending does not enter the unduly-harsh assessment; the earlier decision had reached its conclusion independently of that consideration.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s decision.

• First-tier Tribunal: sitting in Birmingham, dismissed the appellant’s human-rights appeal on 14 August 2018 after rejecting his preliminary objection to the overseas video-link arrangements.