News

Individuals for whom the Home Office or any of its subcontractors are responsible for can now raise direct queries in relation to the retention and processing of their personal data, thanks to the actions of one brave claimant instructing Duncan Lewis Solicitors.

A claimant, referred to under the anonymous cipher of EDC, was a victim of trafficking who received care under The Modern Slavery Act 2015 – Statutory Guidance for England and Wales. The Salvation Army, as the organisation contracted under the Modern Slavery Victim Care Contract (MSVCC) was primarily responsible for providing regular care to the claimant. The extent of the claimant’s needs, having been the victim of severe physical and sexual exploitation, were such that she required supervision on a 24/7 basis. This was not initially provided and the claimant challenged the arrangement, which failed to protect her from her vulnerabilities.

The arguments raised by the claimant in relation to her care led to interim relief being granted. However, over the course of the proceedings she noted that there was an inappropriate recording and sharing of information irrelevant to the proper exercise of the Home Office’s functions under the National Referral Mechanism (‘NRM’) and the Recovery Needs Assessment (‘RNA’.) It appeared that upon a claim being made in relation to our client’s care, the SSHD would request the full file of data from the Salvation Army’s central database, with no regard for its personal nature, its relevance to the claim, or whether or not in amounted to Legally and Professionally Privileged communications (‘LPP’).

In July 2020, the claimant filed a new claim for judicial review challenging this retention and sharing of her data in the absence of a Data Protection Impact Assessment (‘DPIA’). She challenged this on the basis that it breached statutory duties, as well the right to a private and family life under Article 8 ECHR and the common law right to communicate confidentially with a legal advisor. The claimant also contended that this was contrary to data protection principles within the General Data Protection Principles, and that the policy framework permitted or encouraged unlawful acts.

The initial position of the SSHD was that support workers in sub-contracting bodies are merely agents of the SSHD and that therefore, LPP would not apply. However, in September 2020, permission was granted to apply for judicial review on all grounds raised by the claimants. The claim was subsequently settled by the SSHD, accepting that the protection offered by LPP is absolute at common law, and that she did not have the right to gather and access such information. The claimant received damages of £5,000 and had the data about which she was concerned completely erased.

Subsequently, two new pieces of policy guidance were introduced by the SSHD to provide guidance on how to handle both data requests as well LPP. Prior to this challenge, there was no guidance for both Home Office and Salvation Army caseworkers on how data requests and legally privileged information (LPP) was to be handled. Indeed, the Competent Authority’s Management Board conceded that there was “minimal guidance” on data processing generally for the bodies contracted to provide care. The new policy guidance entitled Modern Slavery Victim Care Contract Guidance Document – Data Request Guidance (May 2021) and MSCVCC Guidance – Data Protection – Legal Professional (September 2021). This guidance introduced new safeguards and restrictions on both the recording of and access to information derived from trafficking victims, including strict constraints on the recording of LPP information and provisions designed to prevent the SSHD from being sent by contractors or otherwise accessing information of that kind.

If you are receiving care under the MSVCC, or dealing with the Salvation Army or any similar subcontracting body under Home Office systems, you can directly raise concerns about how your data is being retained, processed or used. For example, you can verbally or preferably in writing request a full file of papers from the Home Office or the Salvation Army. Additional questions you can ask, which have been raised and answered on previous occasions, include the following:

1. What the legal basis is for the recording and inclusion of information on the relevant databases


2. Whether the Databases includes personal data (a full file of any such data can be requested if this is the case, as well any minutes, correspondence and documents in relation to such personal data)


3. Confirmation of whether the Home Office is able to access information (including information that is protected by legal professional privilege) held on the Database, either directly or indirectly and if so, an explanation as to the reasons for which, the circumstances in which, and the legal basis on which the Home Office can access information contained on the Database


4. If the Home Office has such access, confirmation of whether the Home Office has accessed personal data contained on the Database and, if so, (a) the date(s) of such access, (b) the means by which the information was accessed, and (c) the reason(s) or purpose(s) for such access


5. Confirmation as to who is to be considered to be the ‘data controller’ in respect of the personal data


6. To what extent that the Home Office relies on consent as a legal basis for obtaining and processing data, and on what basis does the Home Office consider that consent has been obtained through a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of agreement to the processing of personal data in this way

Equally, the duties under the policy guidance should ensure that data breaches do not occur, that data is not accessed without safeguards, and that LPP is not collected without the consent of the claimant. Detailed records should be kept of all requests for data made, all privileged communications between the claimant and the claimant’s solicitors should be redacted, and explicit consideration of the relevant policy guidance should be recorded.

As a final recourse, individuals should know that the arguments made by the claimant may be used again if the SSHD fails to make accommodations in relation to sensitive data. Such issues are pertinent and individuals stand to have their rights protected through judicial review.

The actions of this exceptionally committed claimant led to a substantial outcome both for themselves and fellow survivors of trafficking within the Modern Slavery system, but the fight for adequate support and due care continues.

EDC was represented by Ahmed Aydeed, a director in the public law team at Duncan Lewis Solicitors, with assistance from a caseworker in the team, Natalie Hawes. This article was drafted by another caseworker in the public law team, Conor Lamb. Duncan Lewis instructed a counsel team of Hugh Tomlinson KC and Aidan Wills, both of Matrix Chambers.

The Duncan Lewis immigration and public law department is expert in all aspects of human rights, asylum and deportation. The team has achieved significant success on behalf of its clients. It holds a distinguished position in leading bold public interest litigation, in challenging litigation and political conditions that frequently invoke common law, constitutional and human rights arguments.

The team has a broad practice representing clients in matters involving immigration; asylum and human rights and deportation matters, with a niche practice in immigration and civil liberties claimant judicial review matters.

For advice in respect of GPS electronic tagging, or indeed any public law or immigration matter, contact public law director Ahmed Aydeed via email on ahmeda@duncanlewis.com or via telephone on 020 7275 2668.

About the author: Conor Lamb is a caseworker in the public law department based at Duncan Lewis' City of London office. He assists the team on the day-to-day handling of cases involving a range of matters, working under the supervision of director, Ahmed Aydeed.

Contact Conor via email at ConorL@duncanlewis.com or via telephone on 020 7275 2618.