Open Rights Group – Court Ruling (United Kingdom, 2021)

The two claimants are The Open Rights Group and The3million, who are respectively a UK-based digital campaigning organisation working to protect the rights to privacy and free speech online and an organisation campaigning for EU citizens in the UK. In August 2018, they brought a judicial review claim against the lawfulness of the immigration exemption in paragraph 4, Schedule 2, of the Data Protection Act 2018 ('DPA 2018'), which was brought into force on 25 May 2018 ('Immigration Exemption'). They argued that the Immigration Exemption is contrary to Article 23 GDPR and incompatible with the rights guaranteed by Articles 7 and 8 of the Charter of Fundamental Rights of the EU. [https://www.bailii.org/ew/cases/EWHC/Admin/2019/2562.html The High Court (Admin) judge dismissed these claims]. The claimants appealed this decision, which [https://www.bailii.org/ew/cases/EWCA/Civ/2021/800.html the EWCA allowed in May 2020]. At this stage of the appeal, it held the “Immigration Exemption” was indeed contrary to Article 23 GDPR. It nonetheless did not decide what form of relief should be granted at that stage, because this issue raised legal issues that needed to be carefully assessed in separate proceedings. As such, the decision on relief was deferred to this case. To decide what form of relief it should grant the claimants, the EWCA first analysed whether it (1) had jurisdiction to suspend relief for a period of time and, if so (2) whether/to what extent/for how long it should exercise it. = The EWCA first stated that the UK GDPR is retained EU law and therefore has supremacy over domestic primary legislation. It nonetheless explained that this does not entitle the court "to make a quashing order in respect of primary legislation", as this would be constitutionally improper, but only to "make a declaratory judgment or order". It summarised the test to be followed, which essentially mirrors the provisions in [https://www.legislation.gov.uk/ukpga/2018/16/section/6 sectio