Delete pupil nationality data or face legal action, campaigners warn ministers

The Department for Education faces being reported to the Information Commissioner if it does not agree to delete data collected on pupils’ nationality and country of birth over the past two years.

More than 20 human rights and privacy campaign groups have signed a letter to Damian Hinds, the education secretary, urging him to destroy the information collected under controversial changes to the school census, introduced in 2016.

The requirement on schools to record information on the nationality and country of birth of their children was scrapped earlier this year following a massive U-turn by the DfE. The collection made national headlines after Schools Week revealed that schools had demanded to see pupils’ passports, and in one instance even targeted non-white pupils to ask for extra information.

It’s time to delete the nationality data, to stop sharing confidential pupil information and to repeal the law which allows these questions to be asked in the first place

It followed attempts to challenge the data collection in the courts, and after the government was forced to admit it had failed to obtain data on around a quarter of pupils, either because parents refused to provide it, or because schools did not submit it in their census returns.

Schools Week revealed in December 2016 how the DfE started the collection with a view to passing information to the Home Office for immigration control purposes, but then backed down in the face of widespread criticism, and tried to cover up their original intentions.

Now the letter, coordinated by campaign group Against Borders for Children and signed by organisations like the National Education Union, Liberty, Defend Digital Me and Migrant Voice, want the data collected since October 2016, when the collection was first added to the census, to be deleted. The DfE has previously said it intends to keep the data.

“Two years ago we asked the secretary of state for education to overturn the extension of Theresa May’s hostile environment agenda into our schools,” said Kojo Kyerewaa, from Schools ABC.

“After a determined campaign the government listened to hundreds of thousands of families, teachers and pupils, and the unacceptable child migrant data collection has now come to an end.”

Kyerewaa said campaigners wanted the DfE to complete the work “to protect BAME and migrant children and families across the country”, not just by getting rid of the nationality and country of birth data it has already collected, but by stopping all sharing of pupil address and other data with the Home Office.

Under current rules, limited information from the national pupil database can be supplied to the Home Office if it is requested for a specific pupil. The Home Office cannot request batch data about certain groups, and is not allowed to see nationality or country of birth data.

“It’s time to delete the nationality data, to stop sharing confidential pupil information and to repeal the law which allows these questions to be asked in the first place,” said Kyerewaa.

“All children should feel that schools are safe havens, places for inclusive education not outposts of hostile immigration control. The secretary of state should ensure this or we will ask the Information Commissioner to intervene for these children.”

If the DfE is reported to the Information Commissioner’s Office, it won’t be the first time the regulator has been asked to step in over the pupil nationality data collection.

In 2016, the department was reported to the ICO by Schools Week after failing to respond to a freedom of information request for its data-sharing agreement with the Home Office. The ICO subsequently had to remind the DfE of its responsibilities, and the memorandum of understanding was eventually released, months after it was first requested.

Then in 2017, the ICO ordered the Department for Education to strengthen its guidance on collecting pupil nationality data.

A Department for Education spokesperson said: “The data collected from our school census plays an important part in how we shape our policy and improve educational outcomes for all children. We regularly review data we have collected to make sure it is not held any longer than necessary.

“The department is no longer collecting pupil nationality data and previously collected data has not been, and will not be, shared externally with third parties at any level which would allow an individual to be identified.”

 

 

The full text of the letter

 

Dear Secretary of State,

Two years ago we wrote to your predecessor, Justine Greening, asking her to protect vulnerable migrant children and their families from an intrusive and unnecessary collection of nationality data from 2 to 19 year olds. We highlighted our grave concerns and the corrosive effect this would cause in English schools, particularly in light of a febrile anti-migrant atmosphere following the EU referendum.

Sadly your predecessor went ahead with the nationality data questions in the school census and in effect built a child nationality database, saying it was for “research purposes”. Our concerns were quickly substantiated when some schools incorrectly asked BAME families and in some cases all “non-white British” families were asked to prove their nationality by providing passports or prove their children were not asylum seekers. Under your leadership, some positive action has been taken but more has to be done to safeguard all children in schools in England.

Against Borders for Children, and our 20 plus supporting signatories, write to you today to highlight our ongoing concerns and recommended actions. The unresolved issues that need to be addressed are:

1. The nationality and country of birth data collected in 2016 and 2017 of 6 million pupils remains on a DfE database.
2. Regulations permitting the DfE to request schools collect data on children’s nationality and country of birth remains in place and can be used in the future.
3. The Home Office still has the ability and access to request pupils’ personal data from the Department for immigration enforcement purposes.

Opposition to the pupil nationality data collection was and continues to be broad and diverse, including established organisations with policy expertise such as Refugee Council, Children’s Society and Privacy International. Also included were directly affected voices such as migrant youth groups like Jawaab and Sin Fronteras, who made a video to explain how this policy harmed their education and ability to feel safe in school. Leaders in educational practice – the National Union of Teachers (now the National Education Union) and the then Head of Ofsted, Sir Michael Wilshaw – were in agreement that, in Sir Michael Wilshaw’s words, “schools shouldn’t be used for border control”.

After the House of Lords passed a motion of regret over this policy, a second concession was made and 2 – 5 year olds in the Early Years census were made exempt from the nationality and country of birth data collection. We organised a national boycott of these questions and over 200,000 children and families actively boycotted this collection. Ultimately nationality data was not obtained for two million children. Regrettably, despite our discussions with DfE civil servants, and wide objection from civil society, the DfE continued to collect the data in the 2017/18 school year. We therefore felt that we had no other option but to challenge the policy in the High Court.

We welcomed your decision in April 2018 to remove the nationality data questions from the School Census. We withdrew court proceedings as a result of this policy change. However serious concerns remain about the lack of transparency and consent over the ongoing Home Office usage of pupils’ personal data. Freedom of Information requests in October 2016 revealed that, the National Pupil Database was being used for immigration enforcement. The revelation caused anxiety and distrust between schools, BAME families and vulnerable migrant communities while the collection. This has been reignited with the exemption introduced in the Data Protection Act 2018 which Victoria Atkins MP said explicitly at Committee Stage, would be used to find people through their school records.

Section 7 of the Education Act 1996 states that statutory education in England and Wales is free and available to all, irrespective of immigration status. Leaving the power to collect such data in the statutory instrument continues to have a chilling effect. If the nationality data collection is invoked again, it will inhibit migrant children’s access to education in England and so goes against the principles in the UN Convention of the Rights of the Child, which the UK has ratified.

We write to you now to request that you take the following actions:

  1. Authorise the deletion of all pupil nationality and country of birth data collected and stored by DfE, by the end of February 2019 at the latest.
  2. Safeguard all pupil personal data collected through schools from Home Office requests for immigration enforcement purposes.
  3. Revoke The Education (Pupil Information) (England) (Miscellaneous Amendments) Regulations 2016

We look forward to hearing a positive response to our request before 21st October. Failing that Against Borders for Children will be forced to pursue a remedy through a legal complaint to the Information Commissioner’s Office.

 

Yours sincerely

Kojo Kyerewaa, Against Borders for Children
Celia Clarke, Director, Bail for Immigration Detainees
Zita Holbourne, National Chair, Black Activists Rising Against Cuts
Remi Joseph­-Salisbury, Founding Member, Critical Race and Ethnicities Network
Jen Persson, Director, DefendDigitalMe
Sarah Mann, Director, Friends, Families and Travellers
Nick Dearden, Director, Global Justice Now
Lucy Nabijou, Coordinator, Haringey Welcome
Leah Cowan, Policy and Communications Coordinator, Imkaan
Liz Fekete, Director, Institute of Race Relations
Enver Solomon, Chief Executive, Just for Kids Law
Rizwan Hussain, Director, Jawaab
Nadeem Murtuja, Director, JUST Yorkshire
Lauren Seager-Smith, Chief Executive, Kidscape
Lucila Granada, Director, Latin American Women’s Rights Service
Gracie Mae Bradley, Liberty
Stephanie O’Connor, Chair, London Campaign Against Police and State Violence
Zrinka Bralo, Chief Executive, Migrants Organise
Nazek Ramadan, Director, Migrant Voice
Mary Bousted & Kevin Courtney, Joint General Secretaries, National Education Union
Aadam Muuse, NUS Black Students Campaign
Sally Daghlian OBE, Chief Executive, Praxis Community Projects
Gus Hosein, Executive Director, Privacy International
Jabeer Butt OBE, Deputy Chief Executive, Race Equality Foundation
Maurice Wren, Chief Executive, Refugee Council
Suresh Grover, Director, The Monitoring Group
Gargi Bhattacharyya, Co­Convenor, UK Coalition of Black Trade Unionists
Joanne MacInnes, Director, West London Welcome