The Home Office GIA 1722 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 02 July 2014 |
| Neutral Citation | 2014 UKUT 306 AAC |
| Subject Matter | Information rights |
| Respondent | The Information Commissioner and Cobain |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 1722 2013 |
| Appellant | The Home Office |
INTERIM DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The INTERIM DECISION of the Upper Tribunal is to allow the appeal.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 30 January 2013, in relation to the Appellant’s appeal against Decision Notice FS50411501, involves an error on a point of law and is set aside.
The Tribunal’s decision involves an error of law because of (i) the inadequacy of the Tribunal’s reasons (the Home Office’s Ground (3)); and (ii) its failure to consider the exercise of the steps discretion (the Information Commissioner’s argument). The directions that follow invite the parties to make further submissions on the appeal.
Further Directions
(1) The First Respondent (the Information Commissioner) is to make a further written submission addressing the two remaining issues: (i) should the matter now be remitted to the First-tier Tribunal or be decided by the Upper Tribunal?; and (ii) how should the section 50(4) steps discretion be exercised and why? That submission should be sent to the Upper Tribunal office within 21 days of the date of issue of this interim decision.
(2) The Second Respondent (Mr Cobain) will then have 21 days in which to make his further written submission on those two questions.
(3) Finally the Appellant (the Home Office) will likewise have 21 days to make its further written submission on those two questions.
(4) The matter will then be referred back to me for further directions or decision as appropriate.
(5) The time limit for appealing the substantive findings in this Interim Decision on Grounds (1) and (3) and on the cross-appeal will not begin to run until the Upper Tribunal has made a final decision on the appeal as per Direction (4) above.
REASONS
The issue in this appeal
1. This is an appeal in which the main issue can be expressed by way of an algebraic equation: x + y = z. The conundrum that has to be answered is this. If z = 13, as it undoubtedly is, and the figure represented by x is subject to an exemption against disclosure under the Freedom of Information Act 2000 (FOIA), but there is no such FOIA exemption applicable to figure y (as the First-tier Tribunal found), is the requester (and so the public at large) able to know what y is?
2. The First-tier Tribunal (“the Tribunal”), having found that the requester is not entitled to know what x is and that he is entitled to know what y is, concluded that y must be revealed to him. However, did that decision involve an error of law, by failing to address the fact that, as the number z is already in the public domain, the release of y (in accordance with FOIA) will necessarily reveal x (in breach of FOIA)? My conclusion is that the Tribunal should have considered the exercise of the “steps discretion” under section 50(4) of FOIA in determining whether to direct the public authority to take any particular steps, and if so what steps (e.g. such as the disclosure or non-disclosure of y).
3. This is an interim rather than final decision. I deal later with the next steps in this appeal.
What are x, y and z?
4. In this appeal the figure x represents the number of orders by the Home Secretary depriving an individual of British citizenship and made between 1 January 2006 and 12 July 2011 on either counter-terrorism (“CT”) grounds or other national security (“NS”) grounds.
5. The figure y stands for the number of deprivation orders made over the same period on the basis that such action “was conducive to the public good for reasons unconnected with national security” (or “CPG” grounds).
6. The sum of x and y is z. Putting it another way, (CT + NS) + CPG = z. It is a matter of public record that z is 13. We know this because of an answer to a Parliamentary Question (see e.g. Hansard, HC Debs., Vol. 530, col. 1135W, July 5, 2011). It follows, given that the number represented by z is in the public domain, that if you are told what y is, you do not need to be an arithmetical genius to work out what x is. But at present all we know is that x and y both fall somewhere in the range from 0 to 13 and must sum to 13 (or z). At this point a slight detour into the realm of citizenship legislation is necessary to provide some context to the present FOIA request.
The citizenship legislation
7. Citizenship legislation does not in terms distinguish between the three categories represented by x, y and z. In broad terms section 40 of the British Nationality Act 1981 provides that the Home Secretary may make an order depriving a person of their British citizenship if she is satisfied that:
• either it would be conducive to the public good to deprive the person of their British nationality and to do so would not render them stateless (section 40(2) and (4));
• or the person acquired their citizenship through naturalisation or registration, and it was obtained by means of fraud, false representation or the concealment of any material fact (section 40(3)).
8. The present case is not concerned with the latter class of deprivation orders based on fraud, false representation or concealment of material facts under section 40(3). However, whichever basis is used, the Home Secretary must first issue the individual concerned with a written notice (a “Notice of Intention”, or “NoI”) informing that person of her intention and the reasons for the proposed order (section 40(5)). There is a right of appeal under section 40A against such an order to the Special Immigration Appeals Commission (SIAC).
9. The British Nationality Act 1981 has always included powers to deprive a person of British citizenship, although these powers have been modified over time and were originally little used (as at February 2002, the last time the equivalent power in earlier legislation had been used was as long ago as 1973: see Deprivation of citizenship and withdrawal of passport facilities – House of Commons Library Standard Note SN/HA/6820, February 2014, p.4). The current version of section 40 of the British Nationality Act 1981 is as amended by section 56 of the Immigration, Asylum and Nationality Act 2006, passed in the wake of the July 2005 London bombings.
10. The previous version of section 40(2) (as substituted by section 4 of the Nationality, Immigration and Asylum Act 2002) had provided for a deprivation order to be made where the person had done something “seriously prejudicial to the vital interests” of the UK or its overseas territories. The new (and, on the face of it, lower) threshold, as amended by the 2006 Act, enables the Home Secretary to make an order if satisfied that “deprivation is conducive to the public good”.
11. The generic expression “conducive to the public good” is not defined by legislation, but is understood by official guidance to mean depriving a person of citizenship in the public interest on the grounds of involvement in terrorism (CT), espionage (NS) or serious organised crime, war crimes or other unacceptable behaviour (CPG) (Home Office, Nationality Instructions, Vol. 1, ch. 55, para. 55.4.4).
12. In recent years there has been increasing use of powers to deprive persons of British citizenship (and also to withdraw passport facilities), particularly in respect of persons who may be intending to engage in armed conflict, extremist activity or terrorist training overseas. The scope of section 40(4) (as regards the question of statelessness) has been before the Supreme Court (Secretary of State for the Home Department (Appellant) v Al-Jedda (Respondent) [2013] UKSC 62. Deprivation of citizenship has also been analysed in the literature (e.g. E Fripp, “Conducive Deprivation of British Citizenship Status and Statelessness: Further Problems”, (2013) 27 IANL 315). The matter remains high on the current political agenda, with further amendments to section 40 having been made recently by section 66 of the Immigration Act 2014. It is against this developing background that the current request was made.
The information request
13. Mr Ian Cobain is a journalist with the Guardian newspaper. On 15 June 2011 he made a detailed five-part request under FOIA to what was then the UK Border Agency (or UKBA; the full request is set out at paragraph [2] of the First-tier Tribunal’s decision (EA/2012/0129)). The Home Office – the relevant public authority for this purpose – provided information in response to the first four limbs of the request. Part (v) of the request was in these terms:
“(v) The number of occasions when an order has been made because the individual has known or suspected terrorist connections or intent, as opposed to orders made as a result of other national security concerns, or because the Home Secretary concluded that such a measure was conducive to the public good for reasons unconnected with national security”.
14. The Home Office refused to disclose the information sought under limb...
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