updated 2:11 PM CET, Oct 31, 2023

Judicial appeal 'considered' against ICO's FATCA decision, on grounds of insufficiently-examined evidence

The U.S. born, UK-resident woman whose crowd-funded complaint over data protection violations she alleged had resulted from the way HMRC had forwarded her personal information to the U.S. was recently not upheld by the UK's Information Commissioner's Office (ICO), is actively considering lodging a judicial review – but says that her legal advisers have told her she'll need to secure "£75,000 within the next 10 days" if she is to do so.

Since announcing her intention to seek a judicial review of the ICO's decision on Monday in an email update to her supporters, they appear to be rallying to the cause, with one anonymous donor offering to automatically pledge £10 for every pledge of £10 or more that Jenny receives during the 48 hours that began at 11am on Tuesday.

That offer ends at 11am on Thursday.

Jenny tweetJenny's case page is on the CrowdJustice website, where, in the 48 hours since her message went out on Monday, 32 fresh pledges have been made, totalling £3,203.  

Explaining her decision to keep going if possible, Jenny told her supporters: "The strength of our arguments and evidence going into court to appeal the ICO's decision is not in question. The question has been one of funds."

Although officials from Mishcon de Reya, her law firm, have told her that pursuing a judicial review of the ICO's deicision could cost "several hundred thousand pounds", Jenny continued, in her latest message to her supporters, a failure "to bring the ICO's ineptitude before the English courts would be a huge hit for us, and a real tragedy for everybody who has been and will be affected by FATCA's disproportionality".

As reported, the woman who is known publicly only as "Jenny" brought her case last September, in what was said to have been the first legal challenge to the way EU governments have been enforcing the U.S. tax evasion law known as FATCA  since the EU's General Data Protection Regulation (GDPR) came into force in 2018.

Earlier this month, the American Expat Financial News Journal exclusively revealed that the UK's ICO had decided not to uphold Jenny's complaint, although details about the decision weren't at that point available.

At that point, Jenny said she was undecided about whether to go ahead with an appeal in the matter, citing the need for significant additional crowd-derived funding that might not be easy to obtain.

There have been a number of legal challenges to FATCA which have cited other concerns since it took effect around the world in 2014, but none of these has thus far been successful either, although an appeal in one long-running case is expected to go to court next year in Canada, where donations to help to fund the appeal are currently being sought.

Grounds for appeal seen in
'failure to address recent decisions'

Filippo Noseda, who filed the original ICO complaint against HMRC on Jenny's behalf, said the grounds for a judicial appeal in the matter lay in the fact that the ICO had failed to address the human rights angle of her claim, "let alone consider the case law from the European Court of Justice in the area of data protection".   

In a letter he sent on 19 June to the European Data Protection Board and copied to the European Parliament's Petitions Committee – which held hearings on FATCA last year – Noseda noted that the ICO, in its decision in the matter, had "not spent a single word on the various decisions from the European Court of Justice and the European General Court in the area of data protection, the transfer of data to the U.S. and the principles of necessity and proportionality". 

"This is the very same approach adopted by the Austrian Data Protection Authority in its decision, dated 18 May, 2020, currently under judicial review," Noseda added. 

As reported, Mishcon de Reya last month filed an administrative appeal against Austria’s data protection authorities in relation to the Common Reporting Standard (CRS), a global system of automatic exchange of information that began to be introduced around 2014 by the Organisation for Economic Cooperation and Development, and which is well known for having been modeled on FATCA.