[2024] UKUT 71 (AAC)

This ground concerns part of the third sentence of [60], in the section of the FTT decision considering PIBT, which reads (with the challenged wording in italics): “The HO has disclosed a large amount of information about the need for a triage system and have clearly thought carefully to limit that to information which would minimise or reduce the risk of cause of prejudice.” From the context, it is clear that the “prejudice” referred to here is prejudice to the immigration system.

PLP argues that the italicised wording discloses a material error of law, because it is a finding of fact for which there was no, or insufficient, evidence.

I first observe that PIBT is an objective evaluation for the FTT: it does not therefore turn on whether HO had, or had not, “thought carefully” about something. In that sense, even if the FTT decision erred in its finding about what HO had “thought carefully” about, that would not be a material error.

However, read in context, I do not think the true import of the sentence scrutinised here was what HO had, or had not, thought about: what the FTT decision was actually expressing was the significant weight it was prepared to put on HO’s views as to the (negative) public interest implications of disclosure of the “other” criteria used in the triage process (being, prejudice to the immigration system): as it said in the preceding sentence, that prejudice outweighed the (positive) public interest implications of disclosure (being, transparency). It is clear that it was those views of HO that caused it to resist disclosure.

PLP of course opposed the FTT placing weight on HO’s views in this way; but it does not seem to me perverse, irrational, or otherwise an error of law, for the FTT decision to have done so.