Source · Select Committees · Human Rights (Joint Committee)
Recommendation 86
86
Accepted
However, clause 35(7) provides that if the information is used to identify a person for...
Conclusion
However, clause 35(7) provides that if the information is used to identify a person for the purposes of facilitating their departure from another state or territory, and the information is transferred to a third country or international organisation for that purpose, the transfer will automatically meet the requirement in the UK GDPR that it is “necessary for important reasons of public interest”.125 This means that the Secretary of State would 121 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para 108 122 S and Marper v UK [GC], Application Nos. 30562/04 and 30566/04, 4 December 2008, paras 95–104 123 S and Marper, para 125; Gaughran v UK, Application No. 45245/15, 13 February 2020, paras 87–98 124 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para.113 125 Article 49 of the UK GDPR provides that where there are no adequacy regulations or other appropriate safeguards in relation to a third country, personal data may be transferred there only if one of 7 specified conditions is met. One of those conditions, in paragraph (d), is that the transfer is necessary for important reasons of public interest. Article 49(4) provides that the public interest must be recognised in domestic law. 34 not need to consider, and a court would not be able to consider, whether a particular transfer of personal data to a third country or international organisation complied with that requirement - it would simply be deemed to have been met. The data protection regime is one of the mechanisms by which compliance with Article 8 ECHR is assured. The European Court has said that Article 8 requires there to be some consideration of the necessity and proportionality of sharing particular information with a third country.126
Government Response Summary
The government noted the concern that clause 35(7) may disapply data protection safeguards, clarifying that the Bill engages a derogation for public interest transfers and that processing will still comply with UK GDPR principles (Articles 5, 6, 9) with due diligence paid to safeguarding data.
Government Response
Accepted
HM Government
Accepted
We thank the Committee for its consideration of Clause 35 and note the concern about the transfer of personal data. The Bill does not provide a broad-brush approach or disapplication of data protection safeguards. Instead, it simply provides that for the purpose of international transfers, such processing is taken to be necessary for important reasons of public interest, meaning a derogation will be engaged. The processing will still need to comply with the general principles (Article 5 UK GDPR), lawful basis (Article 6 UK GDPR), which will generally require that processing is necessary for the performance of a task in the public interest and, in respect of any special category data, that the processing is necessary for reasons of substantial public interest (Article 9 UK GDPR). In this case, the public interest is that such processing may be used to support decisions relating to immigration permission after a person has been evacuated or had their exit facilitated from a third state. The Home Office will ensure that due diligence is paid when sharing any personal data, to ensure it is appropriately safeguarded, with particular attention paid to which third parties and countries the data is shared with. We also note paragraph 87, which identifies the importance of consent for collection of biometrics of children over 16. The Bill is aligned with wider biometrics policy applicable to anyone applying to come to the UK. The presence of a responsible adult is required for the collection of biometric data from children under 16 years old, a position that reflects existing legislation relating to the provision of biometrics under the Immigration Acts and for nationality purposes and the increased rights and responsibilities granted to those aged over 16 years.