Sophia Akram: Thank you, Luke Piper for speaking to Open Rights Group about the3million’s immigration exemption challenge so that other rights groups can learn from your experience pursuing litigation. To start off, could you briefly describe the issue you were concerned with?
Luke Piper: Yeah. So a number of years ago now, the UK government when it was passing its data protection legislation to essentially bring about the GDPR – the regulatory framework that governs data rights in the UK – they included within the bill, as it was then a clause that essentially exempted people from their data rights, when it was in the interest of immigration control to do so.
And we along with rights groups and other campaigners, were very concerned about this. Because to exempt somebody from their rights, for such a nebulous term was in the interest of immigration control was very concerning. And we decided that we wanted to do some advocacy around this issue, given that people accessing their information, understanding how their information is used, is a really important part of how people navigate living in the UK, particularly when they are navigating immigration issues with the UK Home Office. So it was already, it was really, really key.
And at the time, I was still practicing as a solicitor, and I had a number of cases where the importance of accessing information about my clients was really, really, really, really important. And I could see that this exemption presented a serious risk for a lot of the people that I was representing, and also the wider constituency of migrants in the UK. And we felt that was also reflected in the in the 3 million organisation. So we decided that we needed to do some work on this. And that’s how we we got involved. And that’s how we ended up working with the Open Rights Group.
Sophia Akram: How did it come to your attention?
Luke Piper: Yeah. So, it came to our attention because it was being discussed in the public domain amongst practitioners and amongst those who are involved in the data rights sort of see, and think, if I remember rightly, we just we got in touch with his name’s Matthew, who worked at Open Rights Group, he doesn’t work there any more. That’s essentially how we became aware of it, through the public information that was out there. And then, we started learning more about it.
Sophia Akram: And was this subject of data discrimination, one that your organisation typically works on? And if not, did it present new challenges?
Luke Piper: For the3million as an organisation it wasn’t. I don’t think anybody could say that it was an initial, immediate sort of concern. I think when Brexit happened, when the decision to leave happened, I think people were more focused on getting their rights and accessing their rights. But as the picture evolved and it became quite clear that so much of what was being done with people being transitioned from their EU status to their new UK immigration status was centred around the inter-connectivity of datasets and information between departments, as well as people providing a huge amount of information to the government that they’d never been provided before.
When we survey our forums and we survey people on our mailing list, and we do quite a lot of engagement with our base, one of the key concerns that was raised as we were progressing through this was how people’s information was being used and for what purpose was it being used and it really concerned people. And I think for some, it was just general worry, and just wanting to understand what was going on. But it did become a central issue for people. And I think, as the immigration exemption emerged as a key concern, it then became a concern for the people that we’re engaged with. And those are the people that we work with.
The3million is migrant led, I’m the only non-migrant in the mix of the organisation, everybody else has different backgrounds. You know, none of them, apart from me, were practising lawyers, and it became something that people had to learn about and become quite aligned to amongst the core team and then the wider team. And it became something that people were very, very worried about, and continue to be worried about, because of how things are going in that sphere.
Sophia Akram: I wonder if you could speak a little bit about how the use of data or new technologies has affected the rights of migrants from your organization’s point of view?
Luke Piper: Well, it is an ongoing conversation. And the use of data and digital in the context of migrants rights and living in the UK has over the past few years grown hugely in a way that it’s very difficult to keep up to date with; be it through online application forms or algorithms that are being used to check other departments’ data sets or information sharing between departments. It’s all too – now people are having only an online digital immigration status – it’s immensely important. It will become, in my view, one of the central concerns now for people working in the migration sector.
And if you’re not worried about it, and you’re not aware of the direction and travel that things are going in, you should be, because the future is breaking down barriers and walls of digital and data barriers. All of it is about breaking down these walls and making things more interconnected. And more user-centred as they would say.
It’s clear, though, that the vision here is to have a sort of seamless journey of information for people living in the UK, particularly migrants. And that presents a problem because it’s not as though the Home Office is a company that’s providing people with a service like a product. It is an institute of the state and it has a dual function. It has a function to facilitate people migrating to the UK, but it also has a function to guard and protect our borders, which, you know, that’s what their job is.
But that tension presents a problem because they are constantly thinking about this dual function of facilitating, but also controlling and it present risks that people who get caught up in this because their interests are not the paramount concern – they are a concern because they have to be, but they’re not a paramount concern. And that means that people face problems and that’s manifested in the various things that we are seeing against people’s rights. For example, the hostile environment is an exact product, it’s what I’ve just described, it is about control. But people, a lot of people experience a lot of prejudice and violence because of it.
And the move towards a more digitised world means that violence, that hostility, is being translated into the work that is being done. And the immigration exemption is a prime perfect example of that. And if it’s not clipped, or kept in control, or monitored, then it will run away with itself. And so, it is very much a real thing. And, you know, there are a lot of very horrible bad things that are happening at the moment in the legislative framework around migrants rights. And this is something that is just as important that is often sidelined. And I fear that it may get to a stage where things will become too late for certain infrastructures, because one thing is for sure, with the data stuff, it is very opaque, it’s really difficult to understand exactly what is going on behind the scenes with the UK Government. And a lot of attention [is needed] on that. And it’s hard to do that when when you don’t have these sorts of immediate obvious things that you can go to.
Sophia Akram : Really interesting, actually. Why did you decide to go to the courts with this?
Luke Piper: Well, when the immigration exemption was being debated, it became very, very clear that it wasn’t going to be withdrawn. And we sought advice from lawyers – from Leigh Day. And they advised us that there was merit in a legal challenge and we felt that this was such an important issue and that we were best placed as a campaigning organisation representing the interest of migrants to partner with Open Rights Group who understand data rights in a much more intimate way than we do. And it felt like a natural partnership. And that’s why we decided to pursue a challenge.
We tried everything. We lobbied parliament, we went through the entire process, we exhausted all options and this was the only thing that was left to us. And we started to crowd fund. And people showed their support and their solidarity by putting their hands in their pockets and giving us money and we raised a lot of money for people’s generosity. And for me, these sorts of things are, in many respects, an endorsement of strength of feeling about an issue.
If people in the public aren’t interested initially, they won’t give money for it. And people did give money for it, which shows you the strength of feeling about the problem. It took a long time but we won in the end, which was a form of justice on the issue. But regrettably, the government hasn’t exactly implemented that in our opinion, the government hasn’t implemented the changes that the court directed. So, we are now in a position where we’re having to do it again, I’m afraid.
It’s worth saying that litigation is the last resort. You know, people don’t want to go to court. It’s risky, it’s expensive and it’s stressful. And it’s not just you know, individual level it’s stressful for people but at corporate level for an organisation so really stressful decision. There is a lot of things you have to take into consideration and it not something that we do lightly. We agonised over it and we continue to agonise over it as an organisation. But you have to know what fights to pick. And I think, for us, this was a really important one back in 2018. And it continues to be a really important one, given the context that I’ve just described.
Sophia Akram: I was actually wondering if you could speak to the technicalities of the case, because obviously, it is a technical problem at the end of the day, isn’t it?
Luke Piper: Yeah, it is. And it is complicated. But, law is complicated. And so are data rights. And I think just to sort of say on that point, I think one of the things that people really struggle with, and I know I do, is that it’s very abstract. It’s not very tangible. It’s not something that you can obviously see and experience, the movement of information or the containment of data or the digital processes and the technological processes are very elusive, you know, unless you’re somebody that works in this, it feels quite abstract and quite removed. And so you have that element.
Then you have the legal element, which is, again, the law is complicated, it’s very niche. But at its core, the immigration exemption, essentially, is a framework where if you, for example, wanted to access certain information, it would be up to the data controller, in this case, the Home Office, to make a decision whether or not to deny you access to that information, because they think it’s in the interest of immigration control, to do so.
So, as an example, if you are, say, in detention, and you are trying to be released from detention, or you’re facing deportation, or something like that, and you want to access your file from the Home Office to understand why you are in this situation, what is that? What are the decisions that have been made, behind the scenes. What has led up to the outcome that you’re experiencing that moment. These are really important questions, both in the context of pursuing a release. But also if, for example, your detention was unlawful, there is vital information to understand and the Home Office make mistakes, they do. Everybody makes mistakes, and the Home Office does as well.
And understanding those mistakes is also vital. And accessing that information about decisions is really key. I’ve had numerous cases where a subject access request on the person’s file has produced information that shows that the Home Office made a really fundamental mistake on somebody’s case, and it led to a completely different outcome for them. So anything that acts as a barrier to that information and that intelligence is hugely problematic. And the immigration exemption is a means by which a barrier can be introduced to stop somebody from accessing that vital information and stopping them from pursuing the remedies that I was just describing.
So it is really, really important for a lot of people that go well, you know. Not ‘it’s not as though I’m going to end up in detention.’ Well, I think that’s a naive way of looking at it; people end up in these situations for right or for wrong. And accountability and transparency is absolutely fundamental when you are restricting somebody’s liberty and infringing on their basic human rights. So that’s the crux of the exemption in many ways.
There’s a more philosophical discussion about ‘Is it right that we restrict people’s fundamental rights to information because we want to control our borders?’ There is a much more philosophical question there. And I think in some instances, I think it is appropriate, particularly if there’s a national security issue involved, but that is not what the exemption says or does. It’s much, much broader than that. And much more opaque. So, that’s why it’s such an important thing to challenge and to hold to account, because it adds a layer of secrecy and a lack of accountability. So yeah, that’s the long and short of this, I suppose.
Sophia Akram: And given how complex the issue is, and the law is, what about the challenges? Could you speak a little bit about what kind of challenges you faced?
Luke Piper: Yeah, face is probably a better way of putting it. I think that the first thing is understanding the reality of the facts. I think, there is a real tendency, particularly when we talk about data, to get carried away, and think that it’s Big Brother society or that everybody’s out to get people. I think you have to look at these things in a calm, collected way, and bring in the experts to really understand the actual factual nuts and bolts of how this works. And that was a really big challenge, because, as I said before, this was not a natural space for people in our organisation to have an understanding of.
So the partnership with ORG, and Leigh Day was really, really important in really stripping back and getting to the hard facts of what this issue was. The second did that. So we got over that problem by partnering, by partner-shipping and knowledge sharing and understanding.
The second challenge was communicating this issue. As I’ve just described to you before – it is complicated – and translating that into a narrative of something that people can understand, is really difficult. I think we’ve done okay, I think we’ve done a good enough job between Open Rights Group, us and our lawyers.
But it’s not easy. Because it’s not as though you can put a human face to the problem. Because so much of this happens without people’s knowledge. How do you prove something that you don’t know is happening? We know it’s happening, because the statistics and the data coming out of the Home Office tells us that they’re using this exemption on an industrial scale. But it’s really, it’s really difficult to tell the personal stories of this stuff. It’s really, really, really hard.
So, that communication of this problem was always and still is, a big, big problem. And a big, big part of of this is to describe and campaign on something that’s abstract, and to get people interested in it, when there are so many other horrific horrible things going on that why should people give this time of day and how do we get over that? Well, I think, you know, trying to be clear in our communications is one thing, making it clear that this is a rights issue. It’s not a ‘Oh, wouldn’t it be nice to have’ issue, it’s a fundamental rights-based issue. And trying to gently educate people about the importance of information and data in the 21st century.
It still surprises me that even after some of the things that have happened over the past 10 years that people downplay the significance of digital and data and technology in the public sector. It’s hugely important. I think there are a number of scandals that have happened recently that make the case for that. So that was the second thing. The third thing, other than the things I’ve mentioned before, is about corporate risk, and those really difficult decisions that we had to make about the legal challenge was money, fundraising. But at the core of any thinking with this, when crowd fundraising, whatever they call it, is if people want to support it, they will. If we didn’t raise the money, we wouldn’t have been able to do it.
So public interest and public participation is kind of a form of protest as a form of campaigning, of grassroots activism, by people contributing what they can; it is being part of something bigger. And it’s a challenge to encourage and engage with people in that way. But if they’re interested, they’ll contribute. And it’s fantastic that people have done and they can, you know, continue to be as supportive as they are. But it is a challenge facilitating that and getting that together, but when it works, it’s such a wonderful thing that people can come together and support a cause in the way that they do in person. [It] probably doesn’t feel like much paying five pounds or whatever. But it’s enough to make that journey from seeing the problem, understanding it and thinking this is something that I want to do something about.
Sophia Akram: That’s actually a really interesting point, because the3million didn’t do this by themselves. They had interest from other parties. So how did you go about getting that buy-in?
Luke Piper: So, collaboration. And building those sorts of loose coalitions of interest is really, really important. So how did we do that? Well, before COVID, pre 2019, you know, a lot of organisations, they talk to each other, we all have shared interest, and we all had shared experiences. And coordinating our messages, coordinating what we’re doing, is really, really, really important when you are a an advocacy organisation.
So a big part of the work that we do is meeting and working with stakeholders. When COVID happened, all of that moved online and it’s now elevated in new and interesting ways. There are problems with it, don’t get me wrong, and I don’t like sitting in front of my computer all day, and every day. But it has transformed the way that people come together and communicate about their experiences and working together. And I think partnershipping, meeting, discussing shared problems, jointly campaigning on these things is really important. You share knowledge, you open doors for one another. And you try to sum out your differences.
Don’t get me wrong, not everybody agrees with everything. And everybody has a different point of view. And there are fractures and there are problems. But at the end of the day, when it works, it’s fantastic when people can come together for a shared cause and then actively promote something that leads towards some kind of change. I think it’s important to celebrate those things that were very hard. I think in civil society, we’re very hard on ourselves in terms of how we work with one another. Particularly in the migration sector. I think there’s a lot of, you know, I forget the word now. But anyway, you get what I mean.
But I think it’s really important to celebrate where things do work. And I think there was some good practice. I think that came from the immigration exemption challenge with the work we’ve done. Yeah.
Sophia Akram: Talking of celebrating in terms of a win, what do you think a win looks like or counts in this instance?
Luke Piper: Yeah, um, I think this is a really important point. And what does success look like? With with any campaign? Well, a campaign is always conditioned on other successes and other bigger visions. Everyone has a sort of theory of change of what they would like the world to be like. But we all have to be realists in this and that involves compromises and understanding where your prospects of success best lie, and what serves the best interest of the people that you’re trying to represent and the issue that you’re trying to represent.
I think that’s what we always try and bring it back to is we are through whatever or however it happened, this very, you know, sort of voice that we’ve developed, we don’t have agency – nobody said you are going to do this, this is your job. So the job that we do have, we have to think to ourselves constantly. Is what we are doing in the best interest of those that we’re trying to represent? Does this achieve the best outcome for the people and the problems that have been communicated to us? Not some philosophical vision, not some, you know, personal ideal. But what is in the best interest of who we are trying to serve, and success and positive outcome has to align with those that best interest value. And so I think that’s the first thing.
On the exemption. Yes, we’d like to see disappear and be deleted completely. But I would like to say that would happen. And I think that is our vision that it be gone, because it is not a very – I don’t believe and we as an organisation don’t believe that it is a legitimate tool to be used against a very vulnerable cohort of people. So success, in that sense, would see it go entirely. But, we are realists and we fight the fight as much as we can, and we will continue to do so as much as we can. But that doesn’t mean that we’re just going to endlessly drum it.
There may come a time where, where we have to stop. But I think for now, whilst there is interest, a political case, which there most certainly is a political case against the exemption, European Union, is quite shocked at the way that the UK is approaching this exemption. And if there’s a legal case, which then they certainly is based on the advice that we’ve received, then the exemption in its current form, doesn’t have the safeguards that it needs to have. If it had more safeguards, we might be more inclined to be agreeable with it. But at the moment, it doesn’t. So, we will continue campaigning for this, but I think at its core is that question of best interest: Is the thing that we’re pursuing and the outcome that we would ultimately get, does that serve the constituency that we are trying to represent in this journey?
Sophia Akram: Thank you so much, Luke Piper.
Luke Piper: You’re welcome.