Author-May Bulman
People targeted by immigration enforcement are being wrongly detained or even deported because of government failures to comply with its legal duty to supply vital information it holds on them, lawyers and campaigners have told The Independent.
Solicitors working in the field have accused the Home Office of preventing access to justice because it is “routinely failing” to respond to requests to hand over files containing clients’ immigration histories, leaving them unable to challenge its decisions.
Under data protection law, any person can request their personal data from an organisation or public body by submitting subject access requests (SAR), which must be responded to within one month. If the organisation requires extra time, it must contact the requester to inform them of this.
But in the case of immigration-related requests, the Home Office is said to be repeatedly failing to meet this deadline, and often not responding unless they are threatened with litigation.
Experts said this was a “massive detriment” for people trying to prove or regularise their status, particularly if they do not have the ability to pay an immigration solicitor.
In one case, a former NHS nurse who was deported to Ghana in 2017 – despite being born in the UK and having no criminal record – has not been able to challenge the Home Office’s decision to remove him because the department is yet to respond to a SAR submitted in February.
Dean Ablakwa is currently stateless in the Ghanaian capital Accra and unable to work after the British government removed him in June 2017. He told The Independent he felt his life was no longer worth living because it had been “on hold” for so long.
His solicitor, Naga Kandiah, of MTC Solicitors, said he was unable to make progress on his case until he obtains the necessary documents from the Home Office, which he requested from the department on 8 February.
The Home Office has since requested they resubmit the application several times, once because the wording was “wrong”, another time because it must be submitted “in blue ink”, and another time requesting that the photographic evidence include the solicitor’s regulation authority number – which Mr Kandiah said could easily be found online.
“Unfortunately this is just one of many cases where the Home Office has failed to respond adequately to a subject access request. They rarely respond within the 28-day time limit. We often receive requests for further, unnecessary evidence,” said Mr Kandiah.
“The result is that vulnerable clients who do not have documentation are unable to progress their cases.”
Mr Ablakwa, who worked and paid taxes in the UK for more than a decade, said: “I feel like the Home Office is intentionally doing this to prolong it or make me want to give up. It’s been excuse upon excuse. It just doesn’t make sense. It’s like they’re just beating around the bush.”
“I’m not even able to feel like a normal human being here. People here are actually moving forward, and I’m stuck and have been for two years. My mental health is really bad. I can’t sleep at night. I feel like I’m in prison.”
“I had plans, things to look forward to. But my life has been put on hold. I feel very lost. I don’t trust the Home Office. They do whatever they want.”
Toufique Hossain, director of public law and immigration at law firm, Duncan Lewis, described obtaining responses to SARs from the Home Office as an “uphill battle” and warned that the consequences were particularly bad for people being held in immigration detention.
“It takes lawyers being able to threaten the Home Office with judicial review proceedings to get them to do anything. The vast majority of people don’t have lawyers who can do that. It’s time-consuming and costly,” he said.
“This creates an unacceptable risk of delay and risks people being effectively denied access to justice. The court needs to give guidance on this or establish some guidance, because the Home Office are not sticking to their own rules. They’re continuously breaking them.”
Nicola Burgess, legal director at the Joint Council for the Welfare of Immigrants (JCWI), said the difficulty obtaining data from the Home Office was particularly worrying following the Windrush scandal – which saw hundreds of people wrongly treated as illegal immigrants because they didn’t have documents proving their immigration history.
“From an immigration point of view, getting the full file of papers from the Home Office is vital to progress a client’s case. The defendant in these cases is the government, so immediately there is an inequality of arms. The state has a record of everything, clients don’t always have it all,” she said.
“Windrush highlights the need for clients and practitioners to have access to a record of everything that’s happened in a person’s case. It could be the difference between being able to make an application to get confirmation of your status or being left in limbo and threatened with removal.”
Ms Burgess said the Information Commissioner’s Office (ICO), the UK’s data protection watchdog, which deals with complaints about failure to respond to SARs, was failing to take solicitors’ complaints seriously.
The JCWI wrote a letter to the ICO raising the issue in 2017, and did not receive a response. When The Independent asked the ICO about this, a spokesperson said they had been in contact with the Home Office regarding its SAR performance, and decided that “no further regulatory action was necessary at that time”.
A Home Office spokesperson said: “Individuals can submit a SAR to request a full copy of their Home Office file. We aim to respond to individuals within one month of their identity being verified. However, given complexities of some cases this is not always possible.”
