Johnson v Secretary of State for the Home Department

In an out-of-country immigration appeal, a data subject’s objection does not prevent processing or disclosure necessary to enable fair judicial proceedings. Any restriction on the objection must be necessary and proportionate. A transfer to a diplomatic mission may be a transfer to a third country, but the issue need not be finally resolved where the transfer is in any event necessary for establishing or defending legal claims. Reliable arrangements for prompt destruction may satisfy the right to erasure. A non-EU national is not in a comparable position to an EEA national where immigration controls justify different treatment.

The appellant, a Jamaican national deported after criminal convictions, challenged the refusal of his human rights claim. His claim had been certified under section 94 B of the Nationality, Immigration and Asylum Act 2002, requiring an out-of-country appeal. The First-tier Tribunal heard the appeal by video link while the appellant was in Jamaica and permitted transmission of the hearing bundle to the British High Commission. It rejected his data-protection, discrimination and human-rights objections. The Upper Tribunal dismissed his appeal on 12 March 2019. The central issues before the Court of Appeal were whether the data processing and transfer were lawful, whether the arrangements were discriminatory, and whether the out-of-country appeal was fair.

1. Appeal dismissed. The Court of Appeal upheld the decisions of the First-tier Tribunal and Upper Tribunal.
2. The proceedings constituted the establishment, exercise or defence of legal claims for the purposes of article 21 of the General Data Protection Regulation. The appellant therefore could not object to processing necessary to conduct the human-rights appeal. The restrictions in paragraph 5(3) and paragraph 14(3) of Schedule 2 to the Data Protection Act 2018 were necessary and proportionate because disclosure was required for the proceedings and preventing it would prejudice judicial proceedings. Less restrictive measures had to be used where available.
3. The arrangements for erasure did not infringe article 17. The First-tier Tribunal was entitled to rely on assurances that the data would be properly protected and destroyed within seven days.
4. The court left open whether transmission to the British High Commission constituted a transfer to a third country under Chapter V. The issue was not critical to the result. If it was such a transfer, article 49(1)(e) nevertheless permitted it because the transfer was necessary for establishing and defending legal claims and was proportionate.
5. The discrimination claim failed. A non-EU national was not in a comparable position to a person able to rely on the EEA Regulations. The distinction was justified by the United Kingdom’s power to impose immigration controls.
6. An out-of-country appeal may be fair and effective. The assessment is practical and includes representation, access to relevant material and the quality of the video-link facilities. The First-tier Tribunal had properly assessed those matters, and its finding of fairness disclosed no error of law. Its conclusion that removal would not be unduly harsh was also open to it. The child’s best interests were a primary, but not paramount or exclusive, consideration.
7. Lord Justice Dingemans added, obiter, that an adjournment to enable an appellant to return to the United Kingdom would not necessarily be the appropriate remedy for an unlawful overseas transfer. Processing would still occur in the United Kingdom, and deliberate frustration of the appeal might amount to abuse of process. Lord Justice Green further expressed provisional views on the scope of article 21 and Chapter V, but those matters were not determinative.

1. Court of Appeal (Civil Division) — The appeal from the Upper Tribunal was dismissed on 6 August 2020.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 12 March 2019, the Upper Tribunal dismissed the appellant’s appeal from the First-tier Tribunal, upholding the findings on data protection, discrimination, procedural fairness and the substantive human-rights claim.
3. First-tier Tribunal (Immigration and Asylum Chamber) — The appeal was heard on 17 July 2018. On 14 August 2018, the tribunal rejected the data-protection and discrimination complaints and dismissed the human-rights appeal.