All about the Subject Access Request (SAR) and freedom of information
Where an individual is unsure of their immigration status and would like to confirm the position of their immigration status, they may make an application under the Data Protection Act 1998.
Some individuals have made a claim for asylum but have not received a decision on their case after a number of years; others may have made a claim to vary their immigration status whilst in the UK, but having waited a lengthy period of time and still haven’t received a decision regarding their case. Other individuals may be concerned about the processing delays in their case, whilst some individuals may feel the Home Office have neglected their case altogether.
The common factor in all such cases is that there is a way to find out the person’s current immigration status by way of making an application under the Data Protection Act 1998.
The processing of personal data (information relating to living individuals) is governed by the Data Protection Act 1998, which makes it possible for you to request access to this information.
Such a request to find out about what information is held by the Home Office on you is called a Subject Access Request (SAR), and you should expect a response from the Home Office within 40 days.
Making a Subject Access Request
Anyone can make an SAR for information that the Home Office holds about them – you do not need any special skills or qualifications. To make an SAR, you must provide:
• a cheque or postal order for £10, payable to ‘The Home Office Accounting Officer’; and
• sufficient personal information to enable the Home Office to uniquely identify you – for example, a copy of your passport or driver’s licence, original utility bills, and your Home Office reference number if you have one.
You should specify why you are making an SAR; it is helpful if you can say why you want the information you are asking for. This may assist the Home Office to find the information more quickly.
The SAR should be submitted to:
UK Border Agency
40 Wellesley Road
Making a complaint
In such instances where the Data Controller at the Home Office fails to respond to a request within the given 40 days, a letter of reminder should be sent to them and you should specify they provide you with a response within a further 14-21 days.
If you do not receive a response within this time scale, you may then wish to address your complaint regarding the lack of response to your SAR to the complaints department who can be contacted at:
The Deputy Director
UK Border Agency
Freedom of Information Team
40 Wellesley Road
If a response is not given fairly rapidly after this, then you have the options of:
1. “Asking the Information Commissioner to carry out an assessment as to whether it is likely or unlikely that the Data Controller is processing your personal data in compliance with the terms of the Act” or;
2. “Pursue the matter … through the Court”.
The Information Commission Office
The Information Commissioner is a Government body that regulates how organisations, such as the Home Office, hold information about individuals. The Information Commission Office has established procedures in relation to Subject to Access Requests. The Information Commission Office ensures that organisations such as the Home Office, comply with the Data Protection Act 1998, as required to do so.
Upon receipt of your complaint form, the Information Commissioner will carry out an assessment on whether the Data Controller of the Home Office who is responsible for processing your subject to access request, has acted in accordance to the terms of the Data Protection Act 1998. If the Information Commission Office decide that they are going to look into your case, they will contact the relevant department of the Home Office. This should hopefully lead to a response from the Home Office, which the Information Commission Office will update you on.
The Information Commission Office aims to deal with complaints such as this, within a reasonable time period. However, it should be noted that the process can be long and complex, but they will inform you nonetheless if there is a long delay.
If the Information Commission Office is of the opinion that the Home Office has breached the Data Protection Act 1998, they can ask the Home Office to resolve your matter in compliance with the Data Protection provisions. It is stated that normally the organisation in question will respond to an individual’s complaint accordingly after being contacted by the Information Commission Office. It should be noted that the Information Commission Office cannot reprimand the Home Office for breaching the law themselves.
However, if the Home Office does not resolve your concerns, the Information Commission Office may consider issuing an Enforcement Notice ordering them to do so. An Enforcement Notice is a legally binding document that sets out what an organisation must do (or stop doing) to comply with the law.
Factors which the Information Commission Office will take into account while issuing an Enforcement Notice will include the following:
• The seriousness of the problem
• Any damage or distress experienced by the complainant
• The cost of the organisation resolving the complainant’s concerns
If however, you decide to pursue the matter in Court for them to consider the request submitted to the Home Office, this too may compel the Home Office to act in compliance to the provisions. Furthermore, the Court has the power to award you compensation where it is found to be justifiable.
Often, the Home Office will provide you with a copy of your entire file as held by the Home Office. This will include details of all previous applications made by you up to the current status of your case, so you can check exactly what information the Home Office has on you and then you can decide your next course of action. SAR is particularly useful in easing a person’s concerns on what information is held on them and assuring them of what level of attention the Home Office is giving to their case.
Written by Raheela Hussain, Principal Solicitor of Greenfields Solicitors
The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Forlegal advice regarding your case, please contact Greenfields Solicitors on 020 8884 1166 for a Consultation with aSolicitor.