[2024] UKUT 71 (AAC)

The context for this ground is as follows. At [56], “potential bias” was said to be the focus of PLP’s information request: some nationalities may be subject to more suspicion of entering into “sham marriages”. The FTT decision said that it accepted that there will be “some indirect discrimination” for reasons given in PLP’s argument; but rejected the suggestion that disclosure of the “other” criteria would help to minimise or understand “such prejudice”, as the “referral into the tool could equally have impact in terms of indirect discrimination”. [62] recorded PLP’s arguing that disclosure was particularly important “given that the available evidence demonstrates a prima facie situation of indirect discrimination.” The FTT decision said that whilst this was “clearly” a matter of public interest – and that IC had accepted “this” – there were “alternative means” to address the issue (see paragraph 59 below for more on this). The FTT decision found that the “prejudices” identified ought not to be risked through disclosure, “in any event”, but “particularly where there are alternative measures available to address such problems”.

PLP argues that, because of the findings, summarised above, on the matter of indirect discrimination, the FTT decision erred in law in not following the view expressed by HO (and set out in the IC decision notice at paragraph 35) in its PIBT analysis that “it was deemed in the public interest to understand the justification behind any indirect discrimination linked to a protected characteristic” (and this is why HO disclosed the “age difference” criterion).

In my view, the views on indirect discrimination expressed in the FTT decision did not compel it to resolve PIBT in favour of disclosure, either because HO appeared to have done that (in respect of one criterion), or otherwise. It was not irrational or perverse for the FTT decision to have decided, as it did in [62], that the issue of indirect discrimination was not determinative of PIBT, for the reasons it gave. Nor was it irrational or perverse of the FTT decision, despite the weight it placed on HO’s reasoned analysis (see [55]), not to have regarded its findings on “indirect discrimination” as determinative of PIBT: it was for the FTT to reach its own judgement on this point, which it did, and adequately explained.