Edward Williams v The Information Commissioner & Anor

This is an appeal against a decision of the Information Commissioner (the “Commissioner”) dated 28 October 2024, reference IC-315116-R1Z7 (the “Decision Notice”).

The parties opted for a paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing in accordance with rule 2 and rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (as amended).

The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information held by the Second Respondent, namely the Home Office.

Border Force is a law enforcement command within the Home Office, with primary responsibility for border security. Border Force Maritime Directorate is part of Border Force and operates the UK’s only national maritime law enforcement capability with the skills, experience and ability to operate effectively and safely at sea in support of the overall mission and priorities of Border Force.

All vessels carry out both reactive and proactive, intelligence led maritime law enforcement operations including surveillance and security and maritime interceptions, both within UK and adjacent international waters.

Whilst historically the focus for Border Force Maritime Directorate has been counter-narcotics and other smuggled goods bound for the UK where they are responsible for delivering the maritime enforcement capability, they have been increasingly deployed since 2018 to respond to the threat posed by small boats used as migrant vessels crossing the English Channel and the significant threat to life that this dangerous activity poses.

One specific tactic which was the subject of consideration and trials in the period from March 2020 onwards by Border Force Maritime Directorate was the use of turnaround tactics to prevent migrant vessels from progressing through UK waters. This resulted in the approval of the Standard Operating Procedure (“the SOP”) and tactical plan, under the name of Operation Sommen.

The strategic aim of Operation Sommen was to deliver an operational plan which would reduce the number of migrant vessels seeking to cross the English Channel by deterring migrants from attempting the journey, restore public confidence in the UK’s control of its borders and to protect life.

In terms of the specific operational aspect, the purpose was to deliver an operational plan and tactics to safely and dynamically turn-around a positively identified migrant vessel, once inside UK territorial waters, in order to prevent it from reaching UK shores and induce it to leave UK waters and return to France. The strategic intention was that these operational tactics would deter migrants from using small boats or other high-risk means to reach the UK and ensure that the route became unviable for organised criminals to profit from and exploit. It was therefore aimed at being a deterrent to both individual migrants and organised criminal groups.

Although the turnaround tactics as part of Operation Sommen were approved for use and the operation was deployed in the Dover Strait on ten separate occasions between 03 November 2021 and 15 March 2022, they were never in fact employed against a small boat. This was because no small boat was identified and assessed as suitable for the tactic to be safely and lawfully used and in accordance with the detailed criteria set out in the SOP. Therefore, whilst turnaround tactics were approved for use as a matter of principle, they were never in fact used against any migrant vessel.

From 14 April 2022 the Home Secretary made the decision that the policy and procedures which underpin the delivery of turnaround tactics in respect of migrant vessels were withdrawn. From that date, Operation Sommen to deliver the turnaround tactics in relation to migrant vessels was no longer a “live operation”.

The information which is held by the Home Office and which falls within the scope of the request comprises of part of a document headed “Combined SOP for preventing small boats progressing through UK Territorial Waters” authored by Border Force Maritime Command (“the SOP”), version 1.2. The SOP consists of instructional material used to train Border Force officers and then brief them prior to operational deployments in relation to when and how to deploy turnaround tactics and was the basis for the operational plan for any “live” deployments.

In addition, the Home Office hold a training PowerPoint entitled “Vessel Recognition Training”, which was delivered to operational supervisors likely to be involved in Operation Sommen and which was then used to brief other officers deployed on the operation.

The Appellant made the request which is the subject of this appeal on 18 January 2024 in writing as follows:

“Dear Home Office,

From 14 April 2022 the Home Secretary made the decision that the policy and procedures which underpin the delivery of turnaround tactics was withdrawn. From this date, therefore, Operation Sommen to deliver the turnaround tactics was no longer a “live operation”.

REQUEST

Provide training material regarding push back at sea”.

The Home Office acknowledged receipt of the request on 18 January 2024 and undertook to provide a response by 15February 2024. An extension was sought to 14 March 2024 to enable the Home Office to consider the public interest test fully.

On 01 March 2024, the Appellant emailed the Home Office with an excerpt from the decision of the First-tier Tribunal in case EA-2022-0355 which stated:

“We accept that there is a very clear public interest in transparency in relation to these particular controversial tactics and in relation to government policy and measures in relation to channel crossings by small boats. We accept that at the relevant time that there was significant public debate about these measures, and we accept that the disclosure of this information would have assisted in informing that debate”.

The Home Office responded on 13 March 2024 in writing. The Home Office refused to provide the requested information, citing the exemptions pursuant to section 31(1)(a) of FOIA (the prevention and detection of crime) and section 31(1)(e) of FOIA (the operation of immigration controls). The Home Office outlined the arguments that it had taken into account, both for and against disclosure, when considering the public interest test.

In favour of disclosing the information, the Home Office stated that:

“We recognise that there is an inherent public interest in transparency and accountability of public authorities. We also recognise the broad public interest in furthering public understanding of the issues with which public authorities deal. There is a clear public interest in the work of government departments being transparent and open to scrutiny to increase diligence in relation to push back at sea training material. We recognise that there is a public interest in ensuring confidence in the United Kingdom’s law enforcement systems and immigration controls”.

In favour of maintaining the exemption, the Home Office stated that:

“It is considered any release of the operationally sensitive information held, could result in a mosaic effect enabling an individual to formulate a picture of how the Home Office operational procedures are conducted. Training materials are sensitive and enable the Home Office to prevent criminality, ensuring the detection for crime as part of law enforcement operational activities…….Releasing this information could potentially enable those, or who are involved in active criminality, and at the worst-case scenario end of the spectrum could potentially provide sufficient information to enable criminals to target and disrupt immigration control processes”.

The Home Office concluded that, in relation to both potential exemptions, that the balance of the public interest lay in favour of maintaining the exemptions and withholding the requested information.

The Appellant requested an internal review of the handling by the Home Office of his request on 03 April 2024. Following a delay, the Home Office responded on 20 June 2024 in writing and upheld the initial decision to withhold the requested information pursuant to section 31(1)(a) and 31(1)(e) of FOIA. In the response, it stated that:

“Whilst it is recognised that Operation Sommen is no longer a ‘live operation’ and turnaround tactics are not currently being considered, it is not certain that such tactics or something like them might not be considered in the future. Furthermore, the withheld information includes information about Border Force’s wider capabilities and operational procedures, not restricted to the specific circumstances of Operation Sommen”.

The reviewer from the Home Office indicated that he was satisfied that the prejudice in question “would” occur if the information were to be disclosed.

The Appellant referred the matter to the Commissioner on 20 June 2024, stating:

“I apply for a DN.

I disagree with the PIBT. There is never going to be ‘push back’ tactics used. The policy was scrapped”.

The Commissioner decided that the Home Office were entitled to rely on sections 31(1)(a) and 31(1)(e) of FOIA to refuse the request. He did not require any steps to be taken as a result of his decision.

In summary, the reasons for the Commissioner’s decision are:

The Appellant appealed on 28 October 2024.

The Grounds of Appeal stated:

“It is not admitted that the relevant FOIA exemptions apply.

The policy of push back at sea is not sleeping, it is, on balance, gone forever.

The HO merely operates a water taxi service for migrants. There is no effort made to prevent crossings.

The PIBT was wrongly decided”.

The Commissioner’s response, dated 12 December 2024, maintained that the Decision Notice was correct. In summary, the Commissioner’s response stated:

In his reply dated 12 December 2024, the Appellant stated the following:

“My reply is that the respondent does not resist my contention that “…pushback at sea…” is now an abandoned policy. There is, on the balance, being the correct test, no possibility that pushback at sea (the English Channel) will be implemented in the future. Pushback is illegal, the British Government would never act illegally….

There is clearly a very strong public interest in the information being released bearing in mind that pushback would endanger life, which is why the policy was abandoned. I do not buy into the mosaic effect, generic nonsense…..

I am not interested in similar tactics, I am only interested in pushback”.

The Home Office was formally joined as a party on 08 September 2025. In their response, filed on 10 July 2025 prior to the formal joinder, the Home Office submitted that the appeal should be dismissed on the basis that the Decision Notice correctly held that the requested information is exempt. In support, they filed an open and a closed witness statement by Daniel Tobias Whale, Acting Deputy Director, Border Force Maritime Directorate dated 10 July 2025.

In summary, the Home Office’s response stated:

In addition to applying sections 31(1)(a) and 31(1)(e) of FOIA to the entirety of the requested information, the Home Office also sought to rely on section 42 of FOIA in relation to legal advice recorded in the SOP. The relevant legal advice was identified in the closed bundle at CB/29. The Home Office asserted that there were strong public interest considerations, including the confidentiality of client-lawyer communications and the fact that the protection of the confidentiality of legal advice sought and received by Government encourages the taking of decisions that are fully-informed by the legal context, which significantly outweighed the limited public interest in disclosure of legal advice in relation to the lawfulness of one specific aspect of an operational tactic which had, at the time of the request, been withdrawn.

The general right of access to information held by public authorities is contained within section 1 of FOIA as follows:

Those rights are subject to certain exemptions, set out in Part II FOIA. The effect of the exemptions is contained within section 2 of FOIA as follows:

The relevant provisions of section 31 of FOIA are as follows:

Section 31 of FOIA is a qualified exemption and therefore the public interest balancing test under FOIA will apply.

The relevant provision of section 42 of FOIA is as follows:

Section 42 of FOIA is also a qualified exemption and therefore the public interest balancing test under FOIA will apply. It is recognised that there is a significant ‘in-built’ interest in the maintenance of legal professional privilege, due to the importance in principle of safeguarding openness in communications between a legal advisor and a client, and to ensure that there can be access to full and frank legal advice.

The Upper Tribunal gives guidance as to how the public interest balancing exercise required by section 2(2)(b) of FOIA should be carried out in All Party Group on Extraordinary Rendition v The Information Commissioner and Foreign and Commonwealth Office [2013] UKUT 560 (AAC) at paragraphs 75 and 76:

“….when assessing competing public interests….the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote….Such an approach requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice and (b) benefits that the proposed disclosure of the material in respect of which the….exemption is claimed would (or would be likely to or may) cause or promote".

The Tribunal’s remit is governed by section 58 of FOIA. This requires the Tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved an exercise of his discretion, whether he ought to have exercised it differently. The Tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

The issues for the Tribunal to determine are:

In assessing questions (i) and (ii) above, the Tribunal must consider whether:

We read and took account of:

The Tribunal is satisfied that it is necessary to withhold the closed bundle from the Appellant on the basis that to do otherwise would defeat the purpose of the appeal.

Whilst we have been referred to the First-tier Tribunal decision in Edward Williams v (i) The Information Commissioner and (ii) the Home Office [2024] UKFTT 00003, we are not bound by that decision and we have not been assisted by it.

We note that the scope of the request relates to “training material regarding push back at sea”. We have therefore confined our considerations regarding the contents to the SOP to material that falls within the scope of the request. We are satisfied that the entirety of the PowerPoint falls within the scope of the request.

Having read all of the material, including the closed material, we are satisfied that the SOP sets out, in broad terms, information in relation to the circumstances in which turnaround tactics can be considered and the specific criteria which needs to be met before they are authorised for use by the Tactical Commander at the time. This also includes the circumstances, or tactical parameters, in which turnaround tactics must not be used (or once commenced must cease), the nature of those tactics and how they should be implemented at sea. We also accept that the related training PowerPoint was specifically developed to brief operational supervisors and officers deployed on Operation Sommen.

Having read all of the material, we also accept that the SOP contains detailed narrative in relation to operational priorities and outcomes, technical capabilities, and relevant considerations in assessing risks and threats which inform Border Force’s response to migrant vessels more widely irrespective of the specific tactic of push-back.

Furthermore, we accept the evidence of Daniel Tobias Whale that many of the above considerations are equally relevant during non-small boat related law enforcement maritime deployments in response to other offences including organised immigration and drug trafficking.

By confirming when and how the turnaround tactics can be used, the criteria that needs to be met, and the circumstances in which they cannot be used, we accept that the information contained in the SOP and the PowerPoint could be used by and to the benefit of organised crime groups and others responsible for facilitating migrant vessel crossings to evade the use of turnaround tactics in future (if adopted) in order to successfully cross the Channel. We further accept the evidence of Daniel Tobias Whale that disclosure of the information could benefit individuals and groups facilitating crossings who could use this information in order to evade or undermine any measures put in place to seek to deter and prevent migrant boats crossing the Channel, given that the information about Border Force resources and methods have a wider application beyond just turnaround tactics.

We also accept that the disclosure of the information has wider implications outside of the context of small boats and would compromise the ability of the Home Office to prevent and detect other forms of maritime crime also.

We further accept that the turnaround tactics were intended to have a deterrent effect, which would be likely to be reduced if facilitators of criminal offences have detailed information on the circumstances in which such tactics (or similar tactics) may or may not be used.

For the reasons outlined above, we therefore accept that there is a causative link between the release of the information and prejudice to the prevention of crime.

We have carefully considered the Appellant’s assertion that there is no possibility of the push-back tactic being used in the future. We are satisfied, based on the open and closed statement of Daniel Tobias Whale, that it cannot be ruled out that these tactics or something similar may be adopted in the future. In this context, we are particularly cognisant of the dynamic and evolving nature of the small boat threat, and the fact that tackling small boat crossings and wider maritime crime in the Channel remain live issues at present.

For the reasons outlined above, we also conclude that there is a real and significant risk of prejudice and that the harm relates to the interest protected by the exemption. We are therefore satisfied that the release of the requested information would or would be likely to prejudice the prevention or detection of crime and so the exemption under section 31(1)(a) of FOIA is engaged.

Whilst we have considered each exemption separately on its merits, we are satisfied that the release of the requested information would or would be likely to prejudice the operation of the immigration controls for the same reasons as pertain to section 31(1)(a) of FOIA. We are therefore also satisfied that the exemption under section 31(1)(e) of FOIA is engaged.

Given the significant degree of overlap, we have considered the public interest balance in relation to section 31(1)(a) and (e) of FOIA together. However, we have not aggregated the public interest in this case as, for the reasons outlined below, we are satisfied that the public interest in maintaining either exemption outweighs the public interest in disclosure.

We note that it is not the role of the Tribunal to assess the appropriateness or legality of the turnaround tactics. However, we accept that there is a strong public interest in transparency in relation to immigration enforcement and border control activities – and in particular in relation to turnaround tactics which, although now withdrawn, were and remain controversial.

That strong public interest is lessened to an extent in that pushback was not, at the relevant time, a current operational tactic, and that there has already been widespread reporting about the nature of the authorised operational tactics following the judicial review challenge. In addition, we note that the request is in relation to training material, and so this may limit the public interest to a degree in that any disclosure would be confined to details of how a withdrawn policy may be implemented.

Notwithstanding the above, we remain satisfied that there is a strong public interest in disclosure of the information.

We accept that there is a very strong and inherent public interest in ensuring the effective prevention and detection of crime and in preventing the undermining of immigration controls. There is also a strong public interest in not reducing the deterrent effect of tactics that are used by law enforcement.

We note the evidence of Daniel Tobias Whale that:

“The Home Office does not, as a matter of policy, disclose detailed information about Border Force resources, capabilities or operational methods for the very good reason that such information would be invaluable to individuals or more importantly, OCGs in identifying any strengths or weaknesses and building up a picture of operational priorities, activities and areas of highest risk. This includes not only criminal groups operating in the context of MVs, but more broadly criminal groups seeking to exploit use of the Channel for criminal purposes”.

We accept that there is a public interest in withholding information that would benefit organised crime groups in the ways that are outlined above.

We do also accept that, indirectly, disclosure of such tactics may increase the risk of harm to the occupants of migrant vessels or of those seeking to assist a migrant vessel in difficulty at sea, because of the risk that organised crime groups may adopt tactics that would prevent the use of turnaround tactics in the future or adopt tactics that may increase the likelihood of a prompt search and rescue. This increased risk of harm must weigh in the public interest balance against disclosure.

Taken together, we find that there is a very strong public interest in withholding the information.

Overall, for the reasons set out above, we are satisfied that the very strong public interest in withholding the information outweighs the strong public interest in disclosure in relation to each of the two exemptions.

Given that we have found that the exemptions under section 31(1)(a) and (e) of FOIA apply to the entirety of the requested information, we do not consider that it is necessary to go on to consider whether section 42 of FOIA is engaged in relation to one limited part of the withheld material.

Prior to the hearing, the Appellant wrote to the Tribunal to ask that the appeal not be listed in front of any members of the panel who heard case FT/EA/2022/0355. The Appellant was informed that any such application amounted to an application for Judge Buckley (who sat on the previous case) to recuse herself, and that he would need to submit such application by way of form GRC5. The Appellant did not make any formal application via form GRC5 for recusal. However, Judge Buckley considered of her own motion whether she should recuse herself and decided that she should not do so. She concluded that a reasonable independent observer in full possession of the facts would not consider that there was a real possibility of bias. Each case is determined on the evidence and on its merits and, in accordance with the judicial oath, Judge Buckley can be expected to approach the issues with an objective judicial mind. There is nothing in the previous decision which might throw doubt on Judge Buckley’s ability to do so.

The gist of the closed evidence was only sent to the parties on 08 September 2025. All parties were given the opportunity to make submissions on the gist and were given the opportunity to apply to postpone the hearing, given the nearness of the hearing date. No applications or submissions were received by the Tribunal.

We are satisfied that the Commissioner was correct in holding that the Home Office were entitled to rely on sections 31(1)(a) and (e) of FOIA to refuse the request.

The Tribunal dismisses the appeal for the reasons given above.