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10.4 Data Sharing Between the UK Visas and Immigration and the Local Authority

SCOPE OF THE CHAPTER

This chapter clarifies the position in relation to data sharing between the UK Visas and Immigration and the Local Authority. It also deals with the UK Visas and Immigration family returns process.

RELEVANT LEGISLATION AND GUIDANCE

Children Act 2004 - Section 11

Borders, Citizenship and Immigration Act 2009 - Section 55

Data Protection Act 1998


Content

  1. Data Sharing between UK Visas and Immigration and Local Authorities
  2. UK Visas and Immigration Responsibility
  3. The Returns Process
  4. The Independent Family Returns Panel
  5. Working Together
  6. Why does the Agency Require this Information?
  7. Further Inter-Agency Working Requests
  8. Legal Basis
  9. Handling, Retention and Sharing of Information Provided to the UKVI


1. Data Sharing between UK Visas and Immigration and Local Authorities

The UK Visas and Immigration (UKVI) is the organisation responsible for securing the United Kingdom border and controlling migration into the UK. They manage border control for the UK, enforcing immigration and customs regulations. They also consider applications for permission to enter or stay in the UK, and for citizenship and asylum.

There have been recent changes to the UKVI family returns process and these changes are likely to lead to requests for greater data sharing between agencies. These requests will be in order to safeguard and promote the welfare of children, a statutory duty that the UKVI shares with a number of other bodies.

This policy and procedure guidance should be read in conjunction with the other chapters in the procedures manual (Part 5, Children from Abroad).


2. UK Visas and Immigration Responsibility

The UKVI is required by to carry out its functions having regard to the need to safeguard and promote the welfare of children. Making optimum use of information that relates to safeguarding and promoting the welfare of children that is held by other bodies, including Local Authorities can play an important role in this.

The Borders, Citizenship and Immigration Act 2009 can be viewed here.

Sharing such safeguarding and welfare information can be particularly helpful when considering the safe and effective return of children and families who have been determined by both the UKVI and the Judiciary as not having a right to remain in the United Kingdom. Most of these information requests will arise when families have reached a particular stage in the immigration process called the ensured return stage, and a formal, comprehensive plan for family return is being prepared. This is explained below.


3. The Returns Process

In response to the Governments commitment to end the detention of children for immigration purposes, the UK Visas and Immigration introduced in March 2011, a radically different approach to the way it manages all families with children who have no lawful right to remain in the UK and against whom the Border Agency is taking action.

Once a decision has been taken that a family must leave the UK, and any in-country appeal rights have been exhausted, the family will proceed through the new three-stage family returns process. This consists of:

  1. Assisted return stage - contact with the Local Immigration Team to support a voluntary return. This includes family conferences to discuss the family's return home, welfare and medical concerns and the availability of tailored assisted voluntary return packages to help families resettle upon their return;
  2. Required return stage - for families who fail to take up assistance packages, allowing them to remain in the community, but giving two weeks notice to board their flight home and allowing self check-in without the need for enforcement action; and
  3. Ensured return stage - as a last resort for families who refuse to depart the UK. Local Immigration Teams will develop a return plan to achieve a safe and effective return to the homeland. The return plan is designed to safeguard and promote the welfare of any children involved.


4. The Independent Family Returns Panel

As part of the ensured return phase, a new Independent Family Returns Panel (IFRP) has been established for providing expert advice to the UKVI on the method of removal from the UK.

The advice provided by the IFRP will inform the UKVI decision regarding how to return the family and ensure that individual return plans take full account of the welfare of the children involved. The IFRP will also want to be sure that the UKVI is taking into account up-to-date information that is available and relevant to the safeguarding and welfare needs of the children.


5. Working Together

Section 11 of the Children Act 2004 places a duty on specified public bodies and key individuals to carry out their functions having regard to the need to safeguard and promote the welfare of children. Section 55 of the Borders, Citizenship and Immigration Act 2009 places a similar duty on the UKVI.

As part of the new returns procedure, UKVI staff with responsibility for assisting families to return will contact the Authority to check if a family is known, if there are any safeguarding or child protection concerns or any additional needs that any family member may have.

The information will assist the UKVI in meeting their obligation under Section 55, as the primary purpose of this information will be to inform the return plan. At this stage of the process, all other decisions relating to the family’s immigration status will already have been taken.

If the Authority has no knowledge of the family, then usually, no further contact or information will be necessary.


6. Why does the Agency Require this Information?

Shared information will help both the UKVI and subsequently the independent family returns panel in ensuring that the return plan for a particular family has taken into account any information held by other agencies that relates to safeguarding, welfare or child protection. It will assist in the formulation of an appropriate plan and help to provide assurance that any needs, be they related to welfare, safeguarding or child protection are identified and addressed as part of a multi-agency approach prior to, and during, a family’s return home.


7. Further Inter-Agency Working Requests

As part of their consideration of the return plan, IFRP may also request that the Authority provides additional information prior to or after the IFRP’s own case meeting. It is anticipated that this normally will be a request that the child’s allocated social worker or their manager participates in the IFRP meeting (normally by conference call). This request will not be in every case, but in complex and changing situations, as it will serve as an opportunity for the Authority and UKVI case owner, in a multi-agency forum, to share new information relevant to ensuring the safety and well-being of the child and family during the return process.


8. Legal Basis

As part of the returns process, Local Immigration Teams will make every attempt to secure consent from individuals and families for the sharing of data between agencies. However, under the Data Protection Act 1998 the refusal of consent does not prevent the sharing of data, provided other pre-conditions for data sharing are met. These conditions are that:

  1. The sharing of the data is fair and lawful;
  2. One of the conditions in Schedule 2 to the Act is satisfied (this list grounds on which data can be shared; and
  3. In the case of sensitive personal data (e.g. medical records), one of the conditions in Schedule 3 is satisfied.

The Data Protection Act 1998 can be viewed here.

Given the UKVI statutory duty to have regard to and safeguard the welfare of children, and the fact that this data is being obtained principally for the child’s benefit, the sharing of data for the purposes of protecting children’s welfare during the returns process will be lawful.

There is a sound legal basis for data sharing where the data subject does not give their consent. As a Government Agency requesting this information under a statutory obligation to protect children, the UKVI is meeting condition 5(c) of Schedule 2, as the processing of immigration requests is necessary for the exercise of a Government function. In the case of sensitive personal information, condition 7(1) (c) of Schedule 3 will also be met, as the processing is necessary for the exercise of the functions of a Government function.


9. Handling, Retention and Sharing of Information Provided to the UKVI

UKVI will handle all information received from the Authority, in line with data protection principles.

Information provided to UKVI in respect of families will be retained on the relevant Home Office (HO) file and be subject to the standard HO retention and storage policy, approved by the Office of the Information Commissioner.

Information will be shared with the IFRP as part of their considerations. Such information may also potentially be disclosed as part of any valid Freedom of Information request made under the Freedom of Information Act 2000 or Subject Access request under the Data Protection Act 1998. However, this legislation does provide numerous exemptions to protect sensitive or confidential information, and the UKVI would seek to apply those where appropriate. If necessary, the UKVI will liaise with the Authority as to how to handle Freedom of Information requests or Subject Access requests relating to information provided by the Authority.

The Freedom of Information Act 2000 can be viewed here.

Further information on the work of the UKVI and immigration into the UK can be viewed here.

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