The Public Law Project (PLP) has launched legal action against the Home Office over its “potentially discriminatory” algorithm which targets people for “sham marriage” investigations.
It’s said the Home Office’s automated triage tool is used to decide whether couples planning to get married should be subject to a sham marriage investigation. The triage tool categorises couples as “pass” or “fail”.
The Information Tribunal agreed in a separate ruling earlier this month that “there will be some indirect discrimination” and “potential bias” in the algorithmic system the Home Office is using.
Following on from this, the legal grounds for challenge, outlined in PLP’s pre-action letter to the Home Office, are that:
- 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.
“Couples who fail face invasive and unpleasant investigations and can have their permission to marry delayed without even being told that a machine was involved in the decision-making process,” said PLP’s Legal Director Ariane Adam, adding:
“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.
The information available demonstrates prima facie indirect nationality discrimination, with some nationalities – including Greeks, Bulgarians, Romanians, and Albanians – disproportionately failing triage.”
PLP has initiated the pre-action stages of a judicial review by writing a pre-action protocol letter to the Home Office on 16th February 2023, but is hoping the matter can be resolved without litigation and has asked the Home Office to consider alternative dispute resolution.
This action taken by PLP follows a separate appeal to the First Tier Tribunal (Information Rights) earlier in 2023 which was against the Information Commissioner’s Office decision not to require the Home Office to disclose the criteria used by the algorithm.
The appeal was heard by the First Tier Tribunal (Information Rights) on 6th January 2023. Although the FTT decided against PLP in relation to the disclosure of the criteria, it 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.
In its judgment, the FTT panel accepted that “there will be some indirect discrimination,” noting that specific nationalities may be more vulnerable to the processes involved.
PLP said it will be seeking permission to appeal the decision of the FTT to the Upper Tribunal.