By Amien Hoosain and Jerome Veldsman
Johnson v Secretary of State for the Home Department, a decision of the Court of Appeal of the United Kingdom on 6 August 2020, concerned the General Data Protection Regulation (GDPR): protection of personal information legislation under EU law that applies (for now, at least) in the UK.
Subject to exceptions, under the GDPR, the consent of a “data subject” (an individual) is required for the processing of “personal information” of the data subject, and especially for the processing of “special personal information”; and the latter includes information about criminal behaviour. The South African Protection of Personal Information Act (POPI) is in part based on the predecessor to the GDPR.
Mr Johnson, a Jamaican citizen, entered the United Kingdom in 2001 when he was eight years old, on a six month visitor’s visa. After that period, he became an “overstayer” in the UK.
In 2010, Johnson began a relationship with a British national, and their daughter (also a British national) was born in 2012.
Between 2008 and 2015, Johnson was convicted of six offences, including three offences of robbery and an offence of conspiracy to supply drugs. In respect of the latter offence, he was sentenced in 2015 to three years’ imprisonment.
Johnson was released from imprisonment for his drugs offence in August 2016, but was detained under the immigration laws, and deported to Jamaica in 2017.
Under the immigration laws, Johnson was entitled to appeal the deportation, but only on an “out of country” basis.
Johnson appealed on human rights grounds, mainly based on his family life in the UK, and the appeal was scheduled for hearing July 2018 by video-link between the First-tier Tribunal (“FTT“) in Birmingham, UK and Johnson at the High Commission in Kingston, Jamaica.
Prior to the hearing, Johnson gave notice to the FTT that he objected on protection of personal information grounds to giving oral evidence by video-link, and to the transmission from the UK of the electronic bundle of relevant information (including information of his criminal behaviour) to the British High Commission in Jamaica. Johnson wished to be allowed back into the UK for purposes of the appeal.
The FTT dismissed the objections, so the appeal proceeded. The FTT dismissed the appeal, mainly because Johnson’s partner and child had adapted to his absence whilst he was in prison, and since his deportation.
Johnson then appealed to the Upper Tribunal. That appeal also failed. Hence, the appeal to the Court of Appeal.
The Court of Appeal dismissed the objection to the use of a video-link, as an exception to the relevant provisions under the GDPR is: “to the extent that the application of those provisions would be likely to prejudice … judicial proceedings“.
The Court of Appeal dismissed the objection to transfer of the bundle, as an exception to the relevant provisions under the GDPR is to the extent: “necessary for the purpose of, or in connection with, legal proceedings … [or] is otherwise necessary for the purposes of establishing, exercising or defending legal rights“.
As to the merits of the appeal, Johnson lost:
“The FTT’s finding that it would not be unduly harsh on [Johnson’s] partner and child to remove [him] was a finding which was open to the FTT on the materials before it. The FTT directed itself by reference to the appropriate authorities. The FTT carefully considered the best interests of [Johnson’s] child as a primary consideration, noting that it was not the paramount or only consideration. The Upper Tribunal could discern no error of law in the approach of the FTT to the findings that were made, and in my judgment the Upper Tribunal was right in that finding. ”
POPI does not apply to the processing of personal information relating to the judicial functions of a court or similar tribunal. So, in similar circumstances, a South African Court would probably also dismiss the objections.
The Court of Appeal considered but made no final finding regarding the transborder transfer of personal information. As the GDPR and POPI regulate such aspect differently, we have omitted a discussion thereof.
Were Johnson’s objections spurious? He was represented by a pro bono legal team. Despite being well intentioned, compulsory pro bono legal work can lead to the unintended consequence of overenthusiastic legal representation, as there can be perverse incentives for that over-enthusiasm.
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