Appeal by Home Office against a decision of the Information Commissioner requiring disclosure under FOIA 2000 of materials used to train presenting officers in immigration appeals.
In immigration appeals to the First-tier Tribunal, the Home Office is usually represented by presenting officers who, although they may be legally qualified, need not be, since they derive their rights of audience under specific statutory powers. In 2014, the Nationality, Immigration and Asylum Act 2002 and the associated Immigration Rules, were amended to introduce a list of factors that must be taken into account when determining whether an immigration decision amounts to a justified infringement of an individual’s rights under ECHR Art 8. The Home Office organised training for its presenting officers on the new provisions. The Second Respondent, Mr Yeo, made a request under FOIA 2000 for the training materials. After initially refusing, the Home Office disclosed the majority of its training slides. The Commissioner determined that the remainder of the slides should also be disclosed. The Home Office appealed.
Whether the withheld information was exempt from disclosure under FOIA s42 (legal professional privilege)
Appeal allowed. Litigation privilege is not confined to communications with qualified lawyers; litigation was in reasonable prospect when the training was given because there were a large number of pending appeals to which the new provisions were relevant; and immigration appeals are adversarial in nature. Accordingly, the withheld information was privileged. Where the information would reveal the Home Office’s “litigation strategy” the public interest in withholding it outweighed the public interest in its disclosure. Some small parts of the withheld material fell to be disclosed.
