Schools may be at risk of legal challenge after the national school census 2016-17 collection of nationality data. To check if yours could be, start by asking the following questions.
- Has your school collected children’s country of birth, nationality, or first language data and not given parents, guardians and pupils an informed right to refuse?
- Did your school collect children’s country of birth or nationality data and say it was required, or for funding?
- Have you not yet offered parents/guardians and pupils the opportunity to retract the new data previously collected as part of the admissions process, or in the autumn census?
- Did your school collect the data verbally, directly from pupils, but not give pupils time or written information to consider it freely, involve parent/guardians, or to fully understand its implications?
- Did your school submit the data for any off-roll pupils but not tell them, or tell their parents/guardians?
If you answered yes to any of the five questions, you should consider taking action before submitting summer census data due by May 18th. You must enable parents to retract data already submitted such as nationality, if they were not asked.
The revised Department for Education (DfE) school census guidance v1.5 released on January 10th, told schools what had been announced in Parliament, in November. If parents or pupils wish to retract information provided during the autumn census, they should inform the school and the DfE will remove it.
Any schools that submitted nationality data collected in the admissions process for local purposes, but did not explicitly ask parents before submitting it for use now at national level, or for schools that wrongly said it was required must offer this opportunity to retract it. The guidance confirms: These data are optional and do not affect funding.
Section 5.3 of the guidance also clearly confirms that it is important that schools make people aware of their right to refuse data and, where they exercise this option, the information can be returned in the census as ‘refused’.
The collection of nationality data is not for education purposes, but was agreed in a compromise of Home Office measures in 2015.
The age of consent
The guidance also suggests that information could be requested directly from a pupil where they are deemed mature enough to have capacity to consent to sharing their personal data with others. This is a poor recommendation and any schools that did this, would do well to retract the data, and involve parents/guardians and pupils in the summer collection instead.
Although UK law is vague regards age, consent and minors, Data Protection principles are clear that the legal basis for collecting and processing data from anyone, must include that it is fair and informed, and for defined purposes.
This DfE capacity to consent assumes that consent is freely given, which means without peer pressure for example, not collected as we have heard of in cases in practice, by asking pupils to say their country of birth during morning registration in front of friends.
It assumes schools having explained to children the full facts on sharing school census data means forever, and with other government departments, and that children can understand any potential implications for themselves and other family members.
Since the census contains sensitive and named data, and is given out at individual pupil level in identifiable format from the National Pupil Database, including commercial companies and journalists, there should be no claims made over its security or how the purposes may change in future which schools cannot guarantee.
While schools will be the ones at potential risk, it is the government that is failing in its duty of candour and accountability. “The only reason we want parents to return this information is so that we have a clear picture of how the school system is working,” a spokesman recently told the BBC calling Liberty’s claim that the data could be used to aid deportations “absolute nonsense”.
The truth is that on October 6th 2016, autumn census day, the new nationality data was included [15.2.6 nationality “once collected”] in the MoU on sharing data with the Home Office Removals Casework Team, under the data sharing Memorandum of Understanding in place since July 2015. The personal details of up to 1,500 children a month continue to be shared between the Departments, including school and home address going back 5 years.
The Department “established data sharing systems with the Home Office to allow them to match ‘absconder data’ against the pupil database, to detect children and their families who have ‘slipped through the net of the immigration system – and will continue this matching on a monthly basis.”
As part of the compromise rather than Immigration Taskforce plans to impose passport checks and immigration measures as part of admissions, it was agreed that the “Department will gather pupil level data on children’s country of birth, nationality and English proficiency through the school census from 2017.”
The agreement was only amended on October 7th 2016, signed off on the 14th, dropping the transfer of the new nationality data after campaign and press scrutiny. But the data transfers of named pupils’ data continues without oversight.
Although the Department says that “these [nationality] data will not be passed to the Home Office” there is nothing to prove the data are not used within the DFE for those purposes, and there is no safeguard or oversight to prevent it being used this way or being passed on in future.
Children’s rights and the three Rs
Children cannot in these circumstances be deemed informed enough to accept the potential lifetime consequences of the use of these data for them or their family, and schools cannot rely on a statutory gateway to shield them from complaints about improperly gathered data based on mis-labeled ‘consent’ for open-ended purposes, for poorly defined processing and passing on to third parties.
A universally accepted legal test for collection is that any professional faced with a request for data disclosure must consider whether it is in the minor’s best interest, regardless of age.
That principle underpins the UN Convention of the Rights of Child, which also stresses the importance of the family and the rights of the child to be involved in decisions about them, their right to be heard, and a child’s best interests. The Children Act 1989 has specific clauses on parental responsibility in relation to the child, and promoting the child’s welfare.
European data protections enforceable in England in 2018 are explicit that where the child is below the age of 16, data processing shall be lawful only if consent is given or authorised by the holder of parental responsibility over the child.
Schools should have a default position of involving parents in any data sharing decisions about children, unless there are clear reasons not to do so, such as exceptions for child protection concerns, and recognised best practices in health.
Any local authorities and schools aware that children have been asked for these data without parental involvement, should retract it, and follow the correct procedures for the summer census.