Sue Bramall v The Information Commissioner & Anor

This appeal concerns a request for information which the Appellant made of the Home Office on 10 March 2022 (the “Request”). The Request was made under the Freedom of Information Act 2000 (“FOIA”). Through the Request, the Appellant sought information held by the Home Office about a property in Stoke (the “Property”) which the Appellant contends is used to house asylum seekers, or “Service Users” as the Home Office describes them.

In summary, the Request seeks information about the number of complaints about the maintenance of the Property, the type of those complaints and how quickly those complaints are remedied. Its precise terms are set out at paragraph 12 below of our decision.

When the Home Office responded to the Request on 4 April 2022, it refused to confirm or deny whether it held information responsive to the Request (the “Requested Information”). For ease of reference, we refer to this as the “Refusal Notice”. The time of the Refusal Notice is relevant because when deciding this appeal in mid-2025, we must do so with regards to how the facts and balance of the public interests stood as at the Refusal Date. We address this in more detail below.

The Home Office issued the Refusal Notice because its position was (and remains) that if it confirmed or denied whether it held the Requested Information, that would also require it to confirm or deny whether the Property was used to house asylum seekers. Such confirmation or denial would breach a long standing policy of the Home Office to neither confirm nor deny (“NCND”) whether particular accommodation is used to house asylum seekers. The rationale for this policy is to ensure that such accommodation is not targeted by those who oppose government policy towards asylum seekers.

The Home Office’s position is that breaching its policy of NCND on this issue would likely lead to occupants of the Property and those working in the same premises being targeted by those with ill-intent, giving rise to likely endangerment to their physical health, their mental health and/or their safety. Accordingly, it was at the time of the Refusal Notice (and it still remains the case) that the Home Office contends that s.38(2) FOIA was engaged by the Request and the Home Office was not required to confirm whether or not it held the Requested Information. The public interest in maintaining the exemption outweighed the public interest in confirming or denying whether it held the Requested Information.

The Home Office’s reliance on s.38(2) FOIA was upheld by the Commissioner in his Decision Notice dated 18 April 2023 (Reference IC-199652-L3V2) – the “Decision Notice”. This appeal is concerned with the correctness of the Decision Notice. As we set out in further detail below, it involves the evaluation and consideration of multiple important and competing public interests.

Having heard the detailed arguments for both parties, we have decided to allow this appeal. This is because we have concluded that the Decision Notice was not in accordance with the law. This is because while we have accepted that s.38(2) FOIA is engaged because requiring the Home Office to confirm or deny whether it holds the Requested Information would likely endanger the health or safety occupants and workers at the Property, we have decided that the public interest in maintaining this exemption does not outweigh the public interest in requiring the Home Office to confirm or deny whether it holds the Requested Information.

We set out our reasons for reaching this conclusion in more detail in this decision. However we make clear at the outset that nothing in our reasoning should be taken as an indication as to whether or not the Home Office holds the Requested Information or whether the Property is used for the purpose of housing asylum seekers.

This was a rehearing of an appeal against the Decision Notice which had previously been considered by a differently constituted Panel of the First Tier-Tribunal (General Regulatory Chamber). That decision was set aside by a previous order of the Tribunal due to the lack of involvement of the Home Office. The parties agreed that we could be informed of the reasons for this procedural position. The Tribunal has reached this decision entirely independently of this previous decision of the Tribunal which we have not considered and was not in the papers before us.

The appeal was considered at an oral hearing which took place by CVP link on 14 August 2025. The Appellant attended in person. The Commissioner notified the Tribunal that he would not be attending the hearing. The Home Office was represented at the hearing by Richard Hanstock of Counsel. The Tribunal was satisfied that all parties had a full and proper opportunity to advance their case at the hearing or in the case of the Commissioner, prior to the hearing. We also had the benefit of a skeleton argument prior to the hearing from the Home Office. The Appellant and the Commissioner both declined to serve a skeleton argument prior to the hearing. Save to the very limited extent described below, there was no closed material before the Tribunal and the parties agreed that there was no need for a closed hearing.

The Tribunal would like to commend Mr Hanstock on behalf of the Home Office and the Appellant who represented herself, for the clear, eloquent and focused way in which they both addressed the issues to be determined on this appeal, both on the papers and at the hearing. The Tribunal was greatly assisted by the constructive approach which the parties took to the resolution of this appeal and the presentation of the important competing public interest factors which need to be considered.

On 10 March 2022, the Appellant made the Request of the Home Office in the following terms:

“[The Property] is and [sic] HMO used to provide accommodation via SERCO under the AASC Contract [Asylum Accommodation and Support Services Contracts].

Please provide anonymous details of the number and reason for calls to MIGRANT HELP regarding complaints about this property. On a month-by-month basis, since the start of the current AASC contract and the 28/2/22, please provide:

A - total number of new housing complaints logged each month

at this property

B - a breakdown of the above number by all types of complaint -

for example (but not exclusively) damp, leak, broken heating,

infestations,

C - total number of calls each month received in regard to

housing complaints at this property (to include second or third

calls to chase action on initial complaint)

D - total number of housing complaints resolved each month at

this property and closed on MH system.

E - average time a housing complaint takes to be resolved at this

property.”

The Home Office responded to the Request on 4 April 2022. In the Refusal Notice, it informed the Appellant that it considered that s.38(2) FOIA was engaged which exempted the Home Office from the duty under s.1(1)(a) FOIA to confirm or deny if it held the Requested Information. For ease of reference, in these reasons we refer to this duty (as opposed to the duty under s.1(1)(b) FOIA to provide information which is held, subject to appropriate exemptions) as the “Duty to Inform”.

In the Refusal Notice, the Home Office contended that the public interest in maintaining the exemption outweighed the Duty to Inform. In reaching this conclusion, the Home Office accepted that there was a public interest in ensuring transparency in relation to the Home Office’s approach to accommodating and supporting asylum seekers, and that disclosure of the Requested Information would “also enable the public to have confidence in the Home Office’s approach to the welfare of asylum seekers.” However, these were outweighed by the public interest in “government departments being able to accommodate asylum seekers by representing their best interests. Anything that would undermine this is not in the public interest. To disclose the addresses and facilities used to accommodate asylum seekers would weaken the Home Office’s stance on protecting the health and safety of individuals as it could lead them to being exposed to threats and harassment”. The Home Office concluded that the “overall public interest lies in protecting the safety of vulnerable asylum seekers if such information is held”.

The Appellant requested an internal review of the Home Office’s position on 10 April 2022. The Home Office provided its internal review response on 27 May 2022. The internal review response emphasised that the “primary issue” is whether the Duty to Inform would be likely to endanger the physical or mental health or safety of any individual, not whether disclosure of the Requested Information itself (if held) would or would be likely to do so. The Home Office acknowledged that it “is not suggested that reporting the number and nature of housing complaints in respect of any premises used for asylum accommodation would endanger the physical or mental health, or the safety, of residents in such accommodations. The position is that confirming or denying whether specified premises are used to house asylum seekers would be likely to do so.” The internal review maintained that the Home Office was entitled to continue to rely on s.38(2) FOIA and that the public interest in maintaining this qualified exemption outweighed the public interest in the Duty to Inform.

The Appellant complained to the Commissioner about the Home Office’s response to the Request on 30 October 2022. The Decision Notice upheld the Home Office’s reliance on s.38(2) FOIA. Paragraph 22 of the Decision Notice records that the Home Office had contended that the endangerment “would” occur should it have to comply with the Duty to Inform in respect of the Requested Information. The Decision Notice contains scant reasoning for the Commissioner’s conclusion that s.38(2) FOIA was engaged, but it appears that the Commissioner accepted the Home Office’s position that confirming whether or not it held the Requested Information would lead to the targeting of the Property and endangerment of any individuals residing there. The Commissioner concluded that the public interest in maintaining the exemption outweighed the Duty to Inform. He accepted that there “is a public interest in the Home Office being transparent in its approach to accommodating asylum seekers. The Home Office has told the Commissioner it recognises this public interest and therefore proactively publishes some data on asylum and resettlement, together with costs.” However, the Commissioner “accepts the Home Office’s argument that the threat of reprisals, harassments and actual threats to asylum seekers and those assisting them is very real and can include physical violence. As such, the Commissioner is satisfied that, in this case, the public interest test favours maintaining the exemption.”

The Appellant appealed the Decision Notice on 11 June 2023. The grounds of appeal can be summarised as follows:

The Commissioner filed his Response to the Appeal on 6 October 2023. He opposed the appeal. The Commissioner maintained that s.38(2) FOIA was engaged. In summary, he contended that none of the websites relied upon by the Appellant in the grounds of appeal actually identified the Property as being used to house asylum seekers. The BBC’s reporting did not identify the Property specifically. He also contended that official confirmation from the Home Office about the Property’s use would “add something” to confirmation from others. In relation to the public interest balancing exercise to be conducted between maintaining the exemption and the Duty to Inform, the Commissioner contends that (i) weight should be afforded to the risk to individuals which would or would be likely to arise from the Duty to Inform, (ii) while there was a public interest in the disclosure of the Requested Information, the public interest in the duty to confirm or deny whether it was held was limited and “certainly insufficient” to outweigh the public interest in maintaining the exemption. He contended that risks to “staff when present” can “certainly not be dismissed entirely”. In circumstances where there was a “very strong public interest in protecting the safety of asylum seekers”, the Commissioner was correct to maintain that the public interest in the exemption outweighed the public interest in the Duty to Inform.

The Appellant’s Reply to the Commissioner was filed on 3 November 2023. The Appellant maintained the points made in the Grounds of Appeal. In summary, the Appellant submitted that:

The Home Office filed its Response on 13 March 2025 in which it opposed the Appeal. It agreed with the Commissioner and emphasised a number of additional points which can be summarised as follows:

The Appellant filed a further Reply on 26 March 2025. This further reply was in response to the Home Office’s Response. In this further Response, the main new substantive points submitted by the Appellant were:

The Tribunal’s jurisdiction to consider this appeal is set out in s.58 FOIA. If the Tribunal considers that the notice against which the appeal is brought is not in accordance with the law or, if it involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner. In any other case, the Tribunal shall dismiss the appeal.

The Tribunal must consider whether the provisions of FOIA have been correctly applied and is not bound by the Commissioner’s views or findings but must arrive at its own view, giving such weight to the Commissioner’s views and findings as it deems fit in the particular circumstances - Guardian Newspapers & Brooke v Information Commissioner and BBC(EA/2006/0011 & 0013) at [14(3)].

S.38 FOIA is entitled “health and safety”. S.38(1) FOIA is concerned with the duty of a public authority to provide information which it holds under s.1(1)(b) FOIA. It provides that “information is exempt information if its disclosure under [FOIA] would, or would be likely to (a) endanger the physical or mental health of any individual, or (b) endanger the safety of any individual”.

The exemption which is the sole focus of this appeal is s.38(2) FOIA. This exemption is focused specifically on the Duty to Inform. It provides that that “the duty to confirm or deny does not arise if, or to the extent that compliance with section 1(1)(a) would, or would be likely to have either of the effects mentioned in subsection (1)” – i.e. would or would be likely to endanger the physical or mental health of any individual or endanger the safety of any individual.

The meaning of “likely to” has been the subject of judicial consideration, albeit in the context of the application of those words in an exemption from the application of data protection rights and obligations. In his analysis of the meaning of “likely to” in R (on the application of Lord) v Secretary of State for the Home Office [2003] EWHC (Admin) at [99] - [100], Mr Justice Munby emphasised the phrase “has neither a single nor even a prima facie meaning” which would vary according to the specific statutory context in which it arose. In the context of an exemption from the application of data protection rights, the Judge held that:

“Likely”…does not mean more probable that not. But, on the other hand, it must connote a significantly greater degree of probability than merely “more than fanciful”. A “real risk” is not enough…In my judgment “likely”…connotes a degree of probability that there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there ‘may very well’ be prejudice to those interests, even if the risk falls short of being more probable than not.”

This approach in Lord has largely been followed in subsequent decisions of the Information Tribunal and the First-Tier Tribunal in respect of the engagement of exemptions under FOIA, albeit with occasionally different emphases. For example in Hogan v Information Commissioner and Oxford City Council [2011] 1 Info L.R. 588 at [34] (“Hogan”), the Information Tribunal followed an earlier decision of a differently constituted Information Tribunal in John Connor Press Associates Limited v Information Commissioner (EA/2005/0005) which emphasised that the chance of prejudice must be more than a “hypothetical or remote possibility”. In Hogan, the Tribunal concluded that “likely to” meant a “real and significant risk of prejudice, even if it cannot be said that the occurrence of prejudice is more probable than not”.

In Lownie v Information Commissioner, National Archives and the Foreign and Commonwealth Office (EA/2017/0087), the First Tier emphasised that what was required was a “very significant and weighty chance” – “may very well” and a “real risk” are not sufficient.

In the context of case concerning s.38 FOIA, the Upper Tribunal stated, albeit in obiter dicta, that the level of likelihood required was of a risk which was “real and significant, albeit a risk that may well fall short of being more probable than not” – see Keane v Information Commissioner and Home Office [2016] UKUT 0461 (AAC) at [50].

S.38(2) FOIA, which is the exemption which is the subject of this appeal is a qualified exemption. This means that if the Tribunal determines that the exemption is prima facie engaged, pursuant to s.2(1)(b) FOIA, it must then consider “whether in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information.”

The wording of s.2(1) FOIA means that it is only where the public interest in maintaining the exemption outweighs the public interest in the Duty to Inform that a public authority does not have to confirm or deny whether it holds the requested information. Where the relevant public interests are equally balanced, the public authority will still be required to comply with the relevant obligation under s.1(1) FOIA – Hogan at [57].

In Hogan, the Tribunal also emphasised two other important aspects of the assessment of the public interest balancing exercise:

The public interest balancing exercise only arises where a relevant exemption is engaged. Accordingly, as part of the balancing exercise, appropriate weight must be afforded to the relevant rights which are protected by the exemption which is, in principle, engaged. In the context of risks of endangerment to the physical or mental of individuals, or which give rise to actual or likely endangerment to their safety which is the concern of s.38 FOIA, these risks will often be very significant factors in the public interest in maintaining the exemption. Such factors will require a very strong public interest equal to equal or outweigh it such risks, albeit they do not elevate the exemptions in s.38 FOIA to absolute exemptions - PETA v Information Commissioner and University of Oxford (EA/2009/0076), 13 April 2010 at [68].

The assessment of both whether a relevant exemption is engaged and, if so, the necessary public interest balancing exercisefalls to take place as at the date on which the public authority responds to a request for information under s.1 FOIA – Montague v Information Commissioner and DIT [2022] UKUT 104 (AAC).

That is not to say that all evidence of events which took place after the relevant date is automatically inadmissible. It may be admissible and relevant only to the extent that it shines a line on matters as they stood at the date of the response – Ofqual v Information Commissioner [2023] UKUT 253 (AAC) at [41]; Maurizi v Information Commissioner & CPS [2019] UKUT 262 (AAC).

We have considered an open bundle of 674 pages as part of this appeal. This includes a witness statement from the Appellant dated 30 March 2025. There are also two witness statements from two individuals – “TM” (dated 31 March 2025) and “EM” (dated 28 March 2025), who are two individuals said to reside at the Property. Tim Rymer has provided a witness statement on behalf of the Home Office. Mr Rymer is a Deputy Director in the Adult and Family Accommodation Team at the Home Office. He describes his role as having “responsibility for the service delivery teams overseeing accommodation provider performance and delivery against contract requirements and for the Asylum Support Safeguarding Hub.”

There was no cross-examination of the Appellant by the Home Office or the Commissioner in respect of her witness statement. Mr Rymer was cross-examined on his witness statement by the Appellant. He also answered a substantial number of questions from the Tribunal. We are grateful to the significant time Mr Rymer gave to the Tribunal in addressing the points which he did. There is no challenge to the honesty, sincerity or integrity of any of the witnesses in this case.

The witness statements from TM and EM, along with an exhibit from TM were provided in redacted form in the Open Bundle. The unredacted versions had been filed with the Tribunal and, unusually, an application had been made by the Appellant for these unredacted documents to be withheld from the Home Office and the Commissioner which was granted by the Registrar by order dated 4 April 2025. The redactions concerned their names and in one case, a discrete amount of medical evidence. During our preparation for the hearing, it was not apparent to the Tribunal whether the Home Office had been made aware of this application. The Tribunal raised this matter at the outset of the hearing with Mr Hanstock. He confirmed that the Home Office had no objection to the closed material given its limited nature, and the Tribunal made it clear that nothing turned on it. We have not taken into account any of the closed material in reaching our decision on this case.

In light of the detailed nature of the evidence filed by the parties in this case (the Appellant’s witness statement runs to 12 pages not including exhibits and Mr Rymer’s witness statement runs to 18 pages with several hundreds of pages), for the purposes of this judgment, we summarise the main aspects of the evidence, although that summary does not detract from the full evidence which we have taken in to account.

The Appellant’s witness statement emphasises the following points, largely reflecting and developing the outline of her case in her Grounds of Appeal and Responses:

The Appellant describes both her own breathing problems when visiting rooms in the Property and also having witnessed the breathing and other health harms of residents. This is despite the Appellant being a fit individual who walks at high altitude and is used to thin air conditions.

The Appellant only saw cosmetic fixes to complaints rather than the underlying issues being addressed. She is concerned that the problems she has identified will increase and reoccur. She considers that conditions at the Property amount to a real and definite danger to the respiratory health of its occupants.

Mr Rymer has provided a detailed witness statement on behalf of the Home Office. In summary, the main points which he makes in his evidence are:

The Home Office is under a statutory duty to provide accommodation and financial support to asylum seekers who would otherwise be destitute. This is an important and complex task which is allocated on a “no choice basis”, albeit the Home Office is “mindful of the needs” of individual asylum seekers.

The Home Office uses private companies to provide and manage such accommodation, which is governed by a detailed contractual relationship. Alongside this contractual relationship, there is a charity Migrant Help, which is in part contracted by the Home Office to assist asylum seekers. Migrant help are contracted to act as a “point of contact for all maintenance issues, requests for assistance, feedback and complaints against Service Providers”. Local authorities can also provide additional oversight functions for certain asylum accommodations.

There are different types of asylum accommodation provided by the Home Office. Dispersal accommodation is longer-term accommodation provided to eligible asylum seekers. This can often take the form of flats, or houses, including HMOs. As demand for accommodation has increased, the Home Office also uses contingency accommodation on larger sites.

Accommodation provided for asylum seekers “attract everything from hate crimes to more benign curiosity from people”. The Home Officers considers that the “safety and welfare of such vulnerable persons is an important public interest that attracts great weight in the balance of interests”.

There have been multiple incidents where asylum seekers have been harassed, threatened or attacked while they were in or just outside their accommodation. Members of the public have attempted to take photos or videos of the accommodation or its residents. This does not just impact residents but also staff and other individuals working at these properties who have also been subject to similar treatment. Prior to the Home Office’s response to the Appellant, Mr Rymer has identified (non-exhaustively) nine examples of such incidents between April 2021 and April 2022. These include masked men forcing their way into dispersal accommodation with knives, a brick being thrown through a kitchen window, and members of “Britain First” scaling a hotel housing asylum seekers to harass staff. One occasion at a hotel, staff were threatened with what they believed was a firearm. There have been further examples of such targeting of accommodation used by asylum seekers since April 2022.

Perpetrators of these incidents are not always local individuals but can be organised groups who are willing to travel distances to seek out and target asylum accommodation. There is a realistic possibility of individuals from outside a local area from targeting asylum accommodation.

The users of asylum accommodation have often fled difficult situations in their home countries which means they are more susceptible to mental harm than other groups may be.

The Home Office has systems in place to enable the identification and monitoring of risks to the physical and mental health and safety in asylum accommodation. This includes service provider reporting and continuous engagement with the police.

One of the simplest and most effective mitigation steps against such targeting is not to confirm officially the addresses used to accommodate asylum seekers. This makes it less likely that individuals can organise themselves and target such sites. This policy gives residents a greater feeling of safety but also frees up government resourcing to focus mitigation on sites that needs additional measures the most. This particularly applies to accommodation such as flats and houses, including HMOs, located on residential streets in local communities and which cannot be readily adapted with more extensive security measures or with around the clock security guards. The Home Office’s policy of NCND in respect of specific addresses for asylum accommodation is a critical tool in mitigating risks to individuals located on these sites and ensuring them remain viable. It is in the public interest that the Home Office is able to comply with its duty to accommodate otherwise destitute individuals from potential serious harm to their physical or mental health and safety.

There is a “weighty and very serious risk of the consequences of hate crime targeting asylum seekers”. Official confirmation from the Home Office that asylum seekers are residing at a particular address has a “realistic possibility of causing certain individuals or groups” to hone in on that specific location and to harass, threaten and even attack asylum seekers.

When an address has been publicly named by a third party, non-official source, such as a journalist, city leaders or local council members, that is not “official confirmation”. The Home Office considers that “official confirmation” comes only from central government departments including itself. If there has been non-official third-party confirmation, the Home Office will not verify such statements as this is likely to increase interest and exacerbate existing local or national tensions. There is a “realistic possibility” that official confirmation from the Home Office, compared to a city or local council’s position, would create a public reaction to the statement, turning the specific site in to a target and heightening the risk of endangerment to its inhabitants.

Consistent application of the NCND policy for asylum accommodation enables the Home Office to fulfil its statutory duty to provide the accommodation in the first place. There are a limited number of properties and beds which the Home Office can offer asylum seekers and it is likely they become no longer usable if they become targets of negative local or national attention.

Dedicated large scale properties such as barracks can offer physical protections which are not available in residential properties. It is easier for those who seek to target such accommodation to target mixed-use facilities such as hotels in town centres or houses on residential streets.

If the Home Office is not able to rely on NCND to protect the location of asylum accommodation, it is likely to be forced to give up using certain locations as accommodation where it cannot ensure enough security which make it fit for purpose as a safe place to accommodate a vulnerable asylum seeker. Disapplying NCND policy is therefore likely to reduce the already limited supply of beds and therefore seriously hamper the Home Office’s ability to fulfil its statutory duty to accommodation otherwise destitute asylum seekers.

Where there have been exceptions to the policy of NCND in respect of accommodation seekers, these generally apply to larger sites where there is a lower or lesser likelihood of risk of harm, due to the nature of those sites and the associated security provision. Another exception may be where planning policy requires disclosure of a proposed site for asylum accommodation.

There is a public interest in ensuring the accountability of Service Providers and the Home Office. A lack of accountability may result in sites becoming neglected to the point they affect the mental or physical safety of the individuals who reside there.

The public interest in creating accountability and maintaining the quality of appropriate accommodation is “actively being satisfied elsewhere” and providing the information in response to the Request would “only have marginally, if at all, advanced that specific public interest”.

Accountability and transparency are adequately addressed by the following matters:

Service Providers are contractually bound to maintain accommodation and resolve complaints. Mr Rymer’s team hold monthly meetings to discuss contractual performance and address issues such as the time taken to remedy defects and effect repairs.

Service Users can make complaints to Migrant Help, who can be an independent voice between the Home Office, Service Providers and relevant local authorities to lobby for change.

The Independent Chief Inspector of Borders and Immigration has a statutory role to independently monitor and report on the efficiency and effectiveness of the Government’s performance of functions relating to asylum. It has published various inspection reports of asylum accommodation including in 2018, 2021, 2022 and 2024. A 2022 report identified mould and damp issues in contingency asylum accommodation. The reports recommendations were accepted by the Home Office barely a fortnight before the Home Office provided the response to the Appellant’s request.

The Home Office participates in multi-agency meeting along with its Service Providers, local authority and other statutory partners to discuss, amongst other things, maintenance of the sites, the wellbeing of asylum seekers and wider community related issues.

Members of the public are able to write to their local MP or council to express their concerns about asylum accommodation. These concerns can then be passed onto the Home Office or raised through Parliamentary Questions, including Prime Ministers Questions.

The Home Office periodically publishes reports and aggregated data concerning asylum accommodation.

Prior to 2022, the Asylum Strategic Engagement Group was established. The Home Office will invite stakeholders to engage with their views on relevant policy and for them to raise concerns. The Home Office similarly engages, in some cases with local NGOs and other stakeholders on specific government actions that impact them.

Local authorities have separate regulatory and enforcement powers regarding housing in their area “which creates accountability for the Home Office and Service Providers”. This can include for example inspecting the health and safety of housing.

In late 2024, the Home Affairs Committee launched an inquiry into asylum accommodation

The first issue is to determine whether s.38(2) FOIA is engaged in respect of the Request. If it is not, there is no public interest balancing exercise to be considered. The Home Office contends that confirming or denying whether the Requested Information is held “would be likely” to give rise to the endangerment to physical, mental health and safety of residents and workers at the Property.

The Home Office has been clear that it is not the provision of the statistics sought as part of the Request themselves which give rise to the risks they identify. Those risks arise because they contend that confirming or denying that the Requested Information is held will necessarily involve confirming or denying whether the Property is used for asylum accommodation. The Appellant disputes this. However, we reject the Appellant’s contention on this part of the case. While the references to the “AASC Contract” may not be immediately known by many, it is readily apparent from the most cursory of publicly available information what this refers to. Moreover, the Request is specifically focused on calls to “Migrant Help”. It is clear therefore from the context of the Request that it would require the Home Office to confirm or deny if the Property is used for accommodation for asylum seekers. We accept the Home Office’s case on this aspect of the first issue.

The next issue is to determine whether s.38(2) FOIA is engaged on the basis that confirming or denying whether the Home Office holds the Requested Information, would likely endanger the physical or mental health of residents and workers at the Property and/or endanger their safety. In this regard, it appears that the Home Office’s position has shifted from its case before the Commissioner which was that these risks “would” occur.

The height of Mr Rymer’s evidence for the Home Office is set out at paragraph 43 of his evidence where he describes the “weighty and very serious risk of the consequences of hate crime targeting asylum seekers…official confirmation from the Home Office that asylum seekers are residing at a particular address has a realistic possibility of causing certain individuals or groups…to hone in on that specific location. Once there, they are likely to harass, threaten and even attack Service Users…”.

We have considered the evidence from the Home Office and on behalf of the Appellant very carefully and consider the issue of whether s.38(2) FOIA is engaged to be quite finely balanced. In doing so, and in light of the decision of the Upper Tribunal in Montague, we must focus on the position as it stood in April 2022, and that events subsequent to this are only relevant to the extent they shine a light on (or reinforce) the position as it stood at that time.

In this regard, we think there is some force in the points the Appellant has made about the information which is in the public domain about the Property albeit not to the extent that she has suggested. Specifically:

However, while we accept this evidence to a point, we also emphasise that there are limits on this evidence. First, because we accept Mr Rymer’s evidence that motivated individuals have the ability to, and can travel from outside a local area to create an incident or to target individuals in particular locations, even if their presence is known and accepted in its immediate locality. Second, we consider that the information which is available online about this specific property is relatively confined and would require significant information already about the Property to locate the information which is publicly available and to which the Appellant points.

In support of its case on the likelihood of endangerment, the Home Office places significant weight on the impact of “official confirmation”. It contends that “official confirmation by the Home Office is qualitatively different to averments from other sources – even credible ones”. At paragraph 11 of his skeleton argument, Mr Hanstock cited the Upper Tribunal’s decision in CPM v IC & Rosenbaum [2021] UKUT 5 (AAC) at [55] and [57], where the Upper Tribunal held that:

“Official confirmation adds something to other information in the public domain, even if that is credible information provided by third parties who are well-placed to provide that information […] there is a qualitative difference between credible third party information and official confirmation of that information.”

The Upper Tribunal’s statement as quoted above in Rosenbaum arose specifically in the context of national security and s.23(5) FOIA. As shown however from the full extent of paragraph 55 of the Upper Tribunal’s judgment, official confirmation in the context of national security issues, and the potential revelation of the involvement of the intelligence services, has particular significance and importance. If Mr Hanstock was seeking to elevate the decision in Rosenbaum to an immutable or general principle of law such that official confirmation will always be qualitatively different in its impact from even credible sources in every circumstances we would reject that proposition. In many circumstances, this will be a question of fact which will depend on the credibility of the confirmation from the “non-official” source. It may well be doubtful in a particular case that anything turns on whether “confirmation” comes from a central government department, a local government department, or another part of the state. This will ultimately be a matter of qualitative evidential assessment for the Tribunal on the facts before it.

However, in his oral evidence, Mr Rymer sought to explain that he considered that official confirmation in this context was significant because of the critical role which the Home Office plays in managing immigration and asylum issues. These are often national issues and therefore the focus is on central government and specifically the Home Office. As a result, there is particular attention paid to its activities; what it publishes and says effectively acts as a lightning rod for attention on these issues, which is why official confirmation in this specific context is particularly, or more likely to be, impactful. In this regard, we accept Mr Rymer’s evidence as to why official confirmation by the Home Office of whether the Property is used for asylum accommodation will be more particularly impactful than other information which may suggest this and which is in the public domain.

We also accept Mr Rymer’s evidence, which was not disputed, that there was, at the relevant time in April 2022, a relevant general threat posed by hostile actors to asylum seekers and properties at which they reside which would likely lead to those hostile to current government policy towards asylum seekers to target them at their accommodation and therefore potentially not only endanger their safety but also those of employees or others in attendance. Mr Rymer has provided a number of examples of that prior to this period and after that period of a range of seriousness, at least some of which have arisen in the context of smaller and more residential types of accommodation. We also take into account the type of property in question and accept Mr Rymer’s evidence about the difference of risks as between different types of property.

The evidence before the Tribunal is plainly not sufficient to establish the Home Office’s case before the Commissioner that the risk of endangerment to the relevant interests “would” occur and on that basis alone the Decision Notice is not sustainable. However, we accept that this not the Home Office’s current position; it contends that the risk of endangerment is “would be likely”. While we would not wish to overstate the nature of that risk to occupants or visitors to the Property, we have concluded that the threshold for the engagement of s.38(2) FOIA is just met on the basis that we accept that there is a real and serious risk of endangerment to the physical or mental health or safety of occupants or visitors to the Property in light of the generalised nature of the threat. We do not think there is a material difference in this regard on the facts of this case between the distinct concepts of mental or physical health or endangerment to safety. However, we emphasise that we consider the evidence falls at lower end of the threshold for engagement and certainly could not be said to be probable or more than a 50% chance. This is relevant to our weighing of the respective public interests to which we now turn.

Having decided that s.38(2) FOIA is engaged, we must now consider the balancing of the public interest behind the maintenance of the exemption in s.38(2) FOIA and the public interest in the Home Office confirming or denying whether the Requested Information is held. In this regard, we emphasise that the issue before the Tribunal is not about weighing the public interest in the disclosure of the Requested Information itself.

We acknowledge at the outset that there is undoubtedly an inherent and weighty public interest in avoiding and minimising risk to individuals from likely endangerment to their health or safety. That is indisputably correct. As the First Tier Tribunal recognised in its decision in PETA, these factors will require a strong and compelling justification to equal or outweigh such risks, but that is conceptually possible since the exemption is qualified, not absolute. It is therefore significant, in our view, that in the context of this case, several of the countervailing public interests which fall to be considered in the balancing exercise in favour of the Duty to Inform are about competing risks to the health, safety and wellbeing of the occupants of the Property.

We also further acknowledge that there is a strong public interest in the Home Office being able to source and provide appropriate accommodation for asylum seekers and that steps which might restrict or impact upon its ability to do so require a compelling justification. These are important factors in favour of maintaining the exemption.

In his skeleton argument, Mr Hanstock argues that the “weight to be afforded to the furtherance of the related public interests in avoiding endangerment under each limb of s.38(1)….of Service Users and others who may be present at the property during disorder – should be aggregated before being balanced against the extent (if at all) that departure from NCND would serve a countervailing public interest in transparency”. In so doing he relies on the recent judgment of the Supreme Court in IC v Montague v DBT [2025] UKSC 27; [2025] 1 WLR 3456 “(“Montague UKSC”).

We did not find this argument compelling or that on the facts of this case it adds anything material to the balancing exercise before the Tribunal. The decision of the Supreme Court in Monague UKSC concerned aggregation of the public interest between more than one qualified exemption in Part II of FOIA. This can be seen from paragraph 2 of the judgment where the Secretary of State’s argument (with which a majority of the court ultimately concurred) was stated in the following terms:

“where there is more than one qualified exemption in play, the qualified exemptions should be looked at cumulatively (or in aggregate or holistically or in combination) so that the public interest assessment should take into account the public interest against, and the public interest for, disclosure of the information across all the qualified exemptions that are in play.” 

We accept that in principle the different limbs of s.38(1) are separate qualified exemptions and that they are not tautological. For example, it may be possible to engage s.38(1)(b) (endangerment of safety) without necessarily engaging s.38(1)(a) (endangerment of mental or physical health). There will equally be cases where on the facts, both limbs are engaged. This is however one such case. On the facts of this case, there is no material distinction between the two limbs or the public interest which underpins their engagement. No such argument was advanced before us, and if it had been, we would reject it. Accordingly, we do not consider that aggregation of the same underlying public interests between s.38(1)(a) and (b) adds anything to the arguments of the Home Office. We must nevertheless assess all of the competing public interests in the round, taking account of all the circumstances of the case. This includes assessing all the various arguments in the public interest in favour of maintaining the exemption in s.38(2) FOIA and weighing these against the public interest in favour of requiring the Home Office to confirm or deny whether it holds the Requested Information.

These are ultimately highly fact sensitive matters and are a question of evaluation for the Tribunal. In this case, notwithstanding the powerful and weighty matters which we accept arise in favour of maintaining the exemption, we have unanimously decided that all these public interests taken together do not outweigh the public interest in requiring the Home Office to confirm or deny whether it holds the Requested Information.

While we were unanimous in our conclusion in this regard, we have reached this decision with a slight difference as between the Panel Members. Tribunal Members Matthews and Taylor both concluded the competing balancing interests were equally balanced. Judge Scherbel-Ball concluded that the public interest in favour of confirming or denying whether the Requested Information was held marginally outweighed the public interest in maintaining the exemption. These slight differences in evaluation of the competing public interests do not alter the outcome of our decision or the reasons underlying our decision.

We have come to this conclusion for the following reasons:

Ultimately these are all matters which require careful evaluation, in particular when there are competing important public interests being weighed against each other, as undoubtedly applies on the facts of this case. While we accept that these issues are finely balanced, in this case, we have all concluded that the public interest in maintaining the exemption in s.38(2) FOIA does not outweigh the public interest in the Home Office confirming or denying whether it holds the Requested Information.

Accordingly, we have decided to allow the Appeal and to submit a substituted Decision Notice. This will require the Home Office to issue a fresh response to the Request which does not rely on s.38(2) FOIA. The Home Office will need to confirm or deny whether it holds the Requested Information, and to the extent that it does hold the Requested Information, provide that to the Appellant or alternatively explain why it will not be providing the Requested Information in accordance with s.17 FOIA.