Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 71 (AAC)

Fecha: 11-Ene-2024

The IC decision notice

The IC decision notice

16.

PLP’s s50 application to IC for a decision referred to HO’s refusal to disclose the triage process criteria on page 6 of the EIA. It disagreed with HO about the applicability of s31 and said it was not justifiable on public interest grounds. It also said that, in light of what was said on page 9 of the EIA, it believed HO held further information about the impacts of the triage model on different nationalities. In what follows, I will refer to the latter aspect (which hearkens back to PLP’s requests on “internal review” – see paragraph 12 above) as PLP’s “further information” request.

17.

The IC decision notice said that HO was entitled to rely on s31.

18.

It said that IC accepted that the requested information would be useful to sham marriage organisers or organised criminal gangs intent on avoiding detection in their attempts to facilitate sham marriages and/or entrance to the country illegally; such actions would clearly be prejudicial to law enforcement; consequently, IC was satisfied that disclosure would represent a real risk to law enforcement matters. As IC accepted that the outcome of disclosure predicted by HO would be likely occur, IC was satisfied that the exemption provided by s31 was engaged.

19.

It said that HO had told IC that

“disclosure of the triage criteria could lead to circumstances in which individuals change their behaviour in order to avoid meeting the criteria and therefore be more likely to evade scrutiny as someone entering into a potential sham marriage for gain. This would likely lead to a weakening of the Home Offices ability to detect sham marriages and likely lead to a reduction in the Home Office’s ability to maintain an immigration control (s31(1)(e) (immigration control)) and prevent and detect crime (s31(1)(a) (prevention/detection of crime).”

organised crime groups “are known to coerce vulnerable individuals into sham marriages; they also financially benefit from arranging such marriages. Money is central to all organised crime. It is a reward for crime as well as an enabler, with profits funding future criminal activity. It is our view that disclosure of the triage criteria could be exploited by these groups who can take advantage of vulnerable individuals and direct their activities in ways to ensure the maximum benefit to them, e.g., by offering ‘advice’ to individuals (at no doubt, a substantial cost) as to how they could increase their chances of gaining status in the UK.

“It must not be forgotten that taking steps to deceive the authorities in order to gain an immigration advantage is itself an infringement of immigration law, so disclosure would be likely to lead to circumstances where the Home Office’s (and its law enforcement partners’) ability to prevent and detect crime (s31(1)(a) (prevention/detection of crime)) is compromised.”

20.

The IC decision notice said that HO had provided “further rationale” which IC was unable to reproduce in the IC decision notice “as to do so would compromise its withholding of the information”.

21.

As for the public interest balancing test, IC recognised

a general public interest in disclosing information that promotes accountability and transparency in order to maintain the public’s confidence and trust;

a very strong public interest in protecting the law enforcement capabilities of public authorities;

the public interest in the prevention and detection of crime and avoiding prejudice to the operation of the immigration control;

the public interest in preventing individuals intending to circumvent immigration controls – and those who wish to assist them – from having access to information which could assist them in building a picture of how they can best achieve their aims and enter the UK illegally. Provision of information which could assist their knowledge of the UK’s capabilities around the security of the UK’s borders would not be in the public interest;

that disclosure of any information that would assist people to commit unlawful activities and circumvent immigration controls, also putting human life at risk, would not be in the public interest;

and concluded that the factors in favour of disclosure did not equal or outweigh those in favour of maintaining the exemption.

22.

In its “response” to PLP’s appeal to the FTT (28 September 2022), IC accepted (at paragraph 47) that the IC decision notice was silent about the “further information” complaint and said it was on oversight for which IC apologised. It then repeated what was said by HO in an email to IC (about the “further information” sought, on “internal review”) on 10 June 2022: “As part of the AQA process and the production of the [EIA], the [Data Services and Analytics unit] conducted a review of the nationalities involved in the marriage process. This review has been copied into the EIA. No further review exists.”