Home Office algorithm for detecting ‘sham marriages’ breaches public sector equality duty and GDPR rules, pre-action letter claims
The Public Law Project (PLP) has launched a legal challenge over an algorithm used by the Home Office to target people for 'sham marriage' investigations, alleging the tool may have discriminated against certain nationalities.
In a letter before claim, the legal campaign group also contended that, in using the algorithm, the Home Office failed to discharge its Public Sector Equality Duty and breached GDPR rules.
The Home Office uses an automated 'triage tool' to decide whether couples planning to get married should be subject to a 'sham marriage' investigation.
Couples scrutinised by the tool will either pass or fail its assessment. But Home Office data show that the tool fails certain nationalities at disproportionate rates that are inconsistent with their contribution to migration in the UK, PLP claims.
In its pre-action protocol letter sent last week (16 February), the organisation put forward the following four grounds of argument:
- The outputs of the triage tool appear to indirectly discriminate on nationality.
- The Home Office does not appear to have discharged its Public Sector Equality Duty to take steps to eliminate unlawful discrimination and to advance equality of opportunity. The courts have established that this duty is more demanding when using novel digital systems.
- Home Office secrecy about the system breaches transparency rules under the GDPR.
- If there is not always a human/manual review of 'fail' cases which trigger an investigation, this would: go against published Government policy, and place the Home Secretary in breach of section 48 Immigration Act 2014 for delegating something that is for her to decide, through her officials, to a machine-learning algorithm.
PLP's Legal Director, Ariane Adam, said couples flagged by the tool face "invasive and unpleasant investigations" and can have their permission to marry delayed without being told that the algorithm was involved in the decision-making process.
"Home Office data show that the triage tool fails certain nationalities at disproportionate rates that are inconsistent with their contribution to migration in the UK," she said.
"The information available demonstrates prima facie indirect nationality discrimination, with some nationalities, including Greeks, Bulgarians, Romanians and Albanians, disproportionately failing triage. It also suggests that there is no manual review in every 'fail' case.
"If that is in fact the case, the operation of the tool would be unlawful and would not conform to the Home Office's own policy. The Home Office's refusal to be transparent about the triage tool may also violate data protection obligations."
The judicial review threat follows a separate appeal by the PLP to the First Tier Tribunal (Information Rights) over the Information Commissioner's Office's decision not to require the Home Office to disclose the criteria used by the algorithm.
The tribunal decided against PLP but recognised the potential for bias and noted that the apparent discriminatory effect of the Home Office's use of the algorithm could be challenged by way of judicial review, PLP said.
PLP is planning to appeal the tribunal's decision to the Upper Tribunal.
A Home Office spokesperson said: "As the public rightly expects, we take abuse of the spouse, fiancé and partner immigration routes very seriously."
It added: "We will not hesitate to take enforcement action against individuals found to be in a sham marriage or civil partnership including cancelling their leave and removing them from the UK."
The Home Office did not comment on the claims in the pre-action protocol letter.
Adam Carey
