Mishcon de Reya client Jenny Webster, supported by Filippo Noseda and others at the firm, has achieved a remarkable, if only temporary, success in her long campaign to challenge whether the FATCA data-sharing regime is lawful under domestic data protection law. A copy of the UK GDPR complaint and the firm's correspondence with the EU and the OECD, and a report on the underlying issues are available online1.
Jenny had received a dismissive response from the Information Commissioner's Office (ICO), after a long delay in responding to her complaint about HMRC. As a result, she sent a pre-action letter threatening judicial review of the decision not to investigate further. Remarkably, the ICO has now volunteered to withdraw its decision and refer it to a different "independent" decision-maker (as yet not identified).
Under the FATCA regime, banks are required by HMRC to send all personal and financial information of any US citizens to US authorities on an annual basis independent of any actual US tax liability. All it takes is for an American citizen to have a bank account outside of America. Jenny and other "accidental Americans" have been arguing for several years that such indiscriminate sharing, as mandated by HMRC, is unfair and disproportionate, and consequently in breach of UK and European data protection law, with the European Court of Justice due to review the matter in the near future (case C-804/25).
It is not known whether the ICO's offer to resolve Jenny's dispute through an "independent" review is connected to the unprecedented governance issues at the ICO, following the initial outcome of an "independent workplace investigation" into the conduct of Commissioner John Edwards, which has found that he has "a case to answer".
Jenny has asked for clarification on who will conduct the independent review, and what its terms will be.
Partners Adam Rose and Emily Nicholson, along with Senior Data Protection Specialist Jon Baines, are part of the team working with Filippo Noseda to assist Jenny.