The Home Office has been ordered to disclose data on the numbers of emergency travel documents issued for Eritrea and Somalia, and how long it took for those documents to be issued, after refusing to provide the information in response to a request made under the Freedom of Information Act 2000. The case is Bail for Immigration Detainees v Information Commissioner [2024] UKFTT 714 (GRC).

Background

On 23 August 2022 and 21 September 2022 Bail for Immigration Detainees (BID) submitted two freedom of information requests to the Home Office. They sought information the following for both Somalia and Eritrea for the years 2019 onwards:

1. How many emergency travel document requests were submitted?
2. How many emergency travel document requests were granted?
3. How many foreign national offenders were granted emergency travel documents?
4. How many of those foreign national offenders were subsequently removed?
5. How long on average did it take for the documents to be issued?
6. How many emergency travel documents were issued for people deemed not to be cooperating with the process?

Emergency travel documents are used to facilitate removal where a person does not have a valid travel document such as a passport or national identity card.

The Home Office declined to disclose the information in reliance on section 27 of the Freedom of Information Act 2000 which provides for an exemption from disclosure where it would, or would be likely to, prejudice relations between the UK and another country. The Home Office also relied on the exemption at section 31 on the grounds that disclosure would, or would be likely to, prejudice the operation of immigration controls.

Both are qualified exemptions that can only be used where the public interest in maintaining the exemption outweighs that in favour of disclosure. An internal review was requested and the decision was maintained.

BID then submitted a complaint to the Information Commissioner. They included in the complaint that a similar request in relation to Iran had been appealed and resolved by way of a consent order where the Home Office agreed to provide the requested information.

The Commissioner wrote to the Home Office asking why this request should not have the same outcome, that a copy of the requested information be provided to the Commissioner and more detail about how the exemptions could be used here. The Home Office did not respond and so the Commissioner issued an information notice under section 51 of the Freedom of Information Act. The Home Office then provided a response and the Commissioner agreed that section 27(1)(a) was engaged and upheld the decision to withhold disclosure for both requests.

BID appealed the Commissioner’s decision. Following a case management hearing, the tribunal made a direction that it was unnecessary for a representative of the Commissioner to attend the hearing.

Despite being notified by the tribunal of the appeals and invited to put its case forward, the Home Office did not reply or participate in the appeal. The tribunal considered whether it should compel the Home Office to provide further evidence and submissions but concluded that

The Home Office has been given a fair opportunity to defend its position, did so to the Commissioner only reluctantly, and if any further material reasons against disclosure could be argued then the Home Office has had the opportunity to have done so already and has not.

BID asked the tribunal to draw an adverse inference against the Home Office in relation to this failure to engage, however this was refused as unnecessary. The tribunal said that the “Home Office’s sweeping statements more likely arise from disengagement with the FOIA regime rather than a deliberate attempt to deceive”.

There was a separate closed decision issued by the tribunal because the assertions made by the Home Office in relation to the exemptions they sought to rely on “would have the potential to cause prejudice to international relations”.

The international relations exemption

In relation to the appeal against the section 27 international relations exemption, the tribunal set out the relevant principles as follows:

In establishing whether this exemption is engaged: (i) the applicable interests must be identified (for example, the relationship between the United Kingdom and a particular state); (ii) it must be established that disclosure would, or would be likely to, prejudice those interests; and (iii), the likelihood of prejudice to those interests must be measured.

The tribunal accepted that the applicable interests could potentially fall within section 27(1). On the point of likelihood to prejudice those interests, the Home Office had said that the subject of returns and foreign national offenders was sensitive for a number of reasons.

Those reasons included that it means the receiving country must acknowledge that its nationals are in the UK without leave and/or have committed offences here, and large numbers of returns may be considered an indication that conditions in the receiving country are poor. The Home Office also said that other countries considered these matters to be confidential between them and the UK.

The tribunal referred to Savic v Information Commissioner and others [2016] UKUT 535 (AAC) which anticipated the tribunal giving weight to “the views of the government expressed through Secretaries of State, Ministers or senior civil servants because of their relevant experience and expertise in assessing such reactions”. This approach was then contrasted with the letter from the Home Office which was described by the tribunal as setting out “thinly reasoned assertions, with no evidential support or identification of who holds the relevant opinion and on what basis. The evidential basis for the opinion and the qualifications of the author are not provided.”

On the third point, regarding the principle of the expectation of confidentiality, the tribunal said that it was “difficult to apply to the present requests with any specificity”. This was particularly in the context of the lack of any explanation from the Home Office as to why this information was freely disclosed for other countries.

The argument about the sensitivities around the number of returns was dismissed given the Home Office already publishes data on returns (but not emergency travel documents) in the quarterly statistics release.

The tribunal concluded that the first question did not engage the exemption at all, and for the others section 27 exemption was engaged but the threshold of “would be likely to” prejudice interests was not reached.

The law enforcement exemption

On the argument that disclosure of the requested information would, or would be likely to, prejudice immigration controls, again the tribunal found that there was no basis on which to accept the wider consequences that had been claimed by the Home Office. These were that:

Actual or perceived difficulties with the administration of returns are liable to affect the UK’s security and law enforcement in general, as they can increase the incentive for people to arrive in the UK illegally or to overstay once their visa expires. Such difficulties also undermine the public’s confidence in the immigration system and increase costs to the taxpayer as greater numbers of returnees may have to be held in detention centres for longer periods, if they cannot be returned quickly.

Relevant to this finding was the fact that the information had been available for many other countries for years.

The public interest in disclosure

BID submitted that the requested information should be disclosed because knowing the feasibility of removal of a person is important and delay in obtaining an emergency travel document can lengthen the amount of time a person spends in immigration detention.

Not only is the type of evidence required useful, but the numbers matter too: put simply, if a country has issued very few ETDs in recent months or years when set against the likely potential number of enforced returns, then it is less likely that an individual will be issued an ETD within a reasonable timeframe. It is important for BID to be able to point out where removal is likely to fail, otherwise an individual will wait in detention until it does fail.

The tribunal found that BID’s evidence established that there was “weighty public interest in transparency in this field in general and in relation to these countries in particular”. The tribunal concluded that the public interest in disclosure outweighed the public interest in maintaining the exemption and that the Commissioner had been wrong to conclude otherwise.

The Home Office was ordered to comply with the requests and provide BID with the requested information within 35 days.

Conclusion

The tribunal concluded:

by noting our surprise that the Commissioner thought it appropriate to accept the Home Office’s bare assertions, given the way in which it had responded to the previous requests described above and the compulsion required before it then properly engaged with these. In turn, the Commissioner’s Decision Notices disclose no consideration of the various public interest factors carefully put forward by BID. A pattern of conduct has been established on the part of the Home Office that is within neither the spirit nor the letter of FOIA, and which can now be seen as having resulted in considerable delay together with expense of resources both on the part of the Tribunal and BID, a charity. We hope that future decisions will be reached after considerably more care and scrutiny.”

I very much doubt that we will see any change of behaviour from either the Home Office or the Commissioner following this one decision, but hopefully it will help (and motivate) others in challenging further poor decisions by both bodies.