FT/EA/2024/0427 - [2025] UKFTT 01126 (GRC)

The Appellant made the request which is the subject of this appeal on 18 January 2024 in writing as follows:

“Dear Home Office,

From 14 April 2022 the Home Secretary made the decision that the policy and procedures which underpin the delivery of turnaround tactics was withdrawn. From this date, therefore, Operation Sommen to deliver the turnaround tactics was no longer a “live operation”.

REQUEST

Provide training material regarding push back at sea”.

The Home Office acknowledged receipt of the request on 18 January 2024 and undertook to provide a response by 15February 2024. An extension was sought to 14 March 2024 to enable the Home Office to consider the public interest test fully.

On 01 March 2024, the Appellant emailed the Home Office with an excerpt from the decision of the First-tier Tribunal in case EA-2022-0355 which stated:

“We accept that there is a very clear public interest in transparency in relation to these particular controversial tactics and in relation to government policy and measures in relation to channel crossings by small boats. We accept that at the relevant time that there was significant public debate about these measures, and we accept that the disclosure of this information would have assisted in informing that debate”.

The Home Office responded on 13 March 2024 in writing. The Home Office refused to provide the requested information, citing the exemptions pursuant to section 31(1)(a) of FOIA (the prevention and detection of crime) and section 31(1)(e) of FOIA (the operation of immigration controls). The Home Office outlined the arguments that it had taken into account, both for and against disclosure, when considering the public interest test.

In favour of disclosing the information, the Home Office stated that:

“We recognise that there is an inherent public interest in transparency and accountability of public authorities. We also recognise the broad public interest in furthering public understanding of the issues with which public authorities deal. There is a clear public interest in the work of government departments being transparent and open to scrutiny to increase diligence in relation to push back at sea training material. We recognise that there is a public interest in ensuring confidence in the United Kingdom’s law enforcement systems and immigration controls”.

In favour of maintaining the exemption, the Home Office stated that:

“It is considered any release of the operationally sensitive information held, could result in a mosaic effect enabling an individual to formulate a picture of how the Home Office operational procedures are conducted. Training materials are sensitive and enable the Home Office to prevent criminality, ensuring the detection for crime as part of law enforcement operational activities…….Releasing this information could potentially enable those, or who are involved in active criminality, and at the worst-case scenario end of the spectrum could potentially provide sufficient information to enable criminals to target and disrupt immigration control processes”.

The Home Office concluded that, in relation to both potential exemptions, that the balance of the public interest lay in favour of maintaining the exemptions and withholding the requested information.

The Appellant requested an internal review of the handling by the Home Office of his request on 03 April 2024. Following a delay, the Home Office responded on 20 June 2024 in writing and upheld the initial decision to withhold the requested information pursuant to section 31(1)(a) and 31(1)(e) of FOIA. In the response, it stated that:

“Whilst it is recognised that Operation Sommen is no longer a ‘live operation’ and turnaround tactics are not currently being considered, it is not certain that such tactics or something like them might not be considered in the future. Furthermore, the withheld information includes information about Border Force’s wider capabilities and operational procedures, not restricted to the specific circumstances of Operation Sommen”.

The reviewer from the Home Office indicated that he was satisfied that the prejudice in question “would” occur if the information were to be disclosed.

The Appellant referred the matter to the Commissioner on 20 June 2024, stating:

“I apply for a DN.

I disagree with the PIBT. There is never going to be ‘push back’ tactics used. The policy was scrapped”.