At least 20,000 people denied information that could prove right to live in UK, in new ‘hostile environment’ clampdown

Exclusive: Controversial loophole – introduced despite ‘next Windrush’ warning – used to block almost 43 per cent of data requests, The Independent reveals

At least 20,000 people have been denied information that could prove their right to stay in the UK, in what campaigners are warning is a revival of the ‘hostile environment’.

A controversial loophole – passed into law despite warnings it risked “the next Windrush” – has been used to block almost 43 per cent of requests for the government to release vital data, The Independent can reveal.

The huge impact of the clause – allowing data to be kept secret if release would “undermine immigration control” – comes despite ministers promising it would be used only on a “case-by-case basis”.

Campaigners and MPs seized on the revelation to demand that the Home Office end the secrecy surrounding the ‘immigration exemption’, to prove it was not “complicit in further injustices”.

Diane Abbott, Labour’s shadow home secretary, attacked a “shameful abuse of process”, while Liberty said the legacy of Theresa May’s notorious immigration clampdowns was still inflicting harm.

“This shows that the immigration exemption is just another tool used by the government to enforce its hostile environment,” said Gracie Bradley, the civil liberties group’s policy manager.

Two years ago, lawyers echoed fears that withholding potentially vital proof of the right to live in the UK would lead to people being wrongly deported, detained or denied health treatment.

The clash was billed as the “first test” of government promises to learn the lessons of the Windrush debacle – but the loophole was nevertheless created by the Data Protection Act.

Now a freedom of information response to The Independent has revealed that 45,238 “subject access requests” for information were made between May 2018 and January 2020.

The immigration exemption was used to block or restrict the release of data for no fewer than 19,353 of those applications – 42.8 per cent – the Home Office said.

However, the database was only able to record such instances from July 2018, which means the true total of thwarted requests is almost certainly above 20,000.

Yet, when questioned as the act was passed, ministers insisted fears of widespread use were misplaced, insisting it would only be deployed on “a case-by-case basis”.

The exemption “does not give the Home Office a free hand to invoke the permitted exceptions as a matter of routine”, Victoria Atkins, the then home office minister told MPs in March 2018.

“The exemption will not and cannot be targeted at whole classes of vulnerable individuals, be they victims of domestic abuse or human trafficking, undocumented children or asylum seekers,” she also pledged.

Ms Abbott told The Independent: “There can be no doubt that the government is using this exemption to conceal facts that might help the migrant.

“This is a shameful abuse of process by the government. It makes it almost certain that more Windrush type scandals will eventually emerge.”

David Lammy, a Labour MP and Windrush campaigner, said: “The Home Office has shown repeatedly, before, during and after the Windrush scandal, that it makes frequent mistakes that ruin people’s lives.

“It is an outrage that 20,000 people have been denied access to information the government holds about them under this exemption. The Home Office is complicit in further injustices that we simply do not know about.”

And Ms Bradley added: “Everything about the exemption and how it’s used is shrouded in secrecy – people don’t know things such as whether it’s being used to access their health or education records.”

It is unclear how many requests were refused outright, how many saw data partially redacted, or whether some files were eventually released after requests for additional information about the applicant.

The use of subject access requests has mushroomed as awareness has grown and as the hostile environment laws have required strict proof of immigration status to live and work.

The Law Society, which represents solicitors, and the Bar Council, which represents barristers, had also warned people would be unable to obtain files about themselves.

And 34 organisations, including Amnesty, the Refugee Council, the National Aids Trust, the National Education Union and the trade union Unison, signed a protest letter.

A Home office spokesperson said: “The government takes both the protection of personal data and the right to privacy extremely seriously.

“The immigration exemption can only be applied where it is necessary and proportionate to do so, and where to uphold a data subject request would be likely to prejudice the maintenance of effective immigration control.

“The immigration exemption is not a blanket measure, and its use is justified and on a case-by-case basis. In nearly all cases the immigration exemption applies to a limited amount of data.”