Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  GIA/1643/2014

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before: Upper Tribunal Judge Wikeley

 

Attendances:

 

For the Appellant: Mr Ladi Tokosi, Head of Operations, with Mr

Emman Aluko, Business School Principal

 

For the First Respondent: Mr Christopher Knight, counsel, instructed by the Information Commissioner

 

For the Second Respondent: Mr Richard O’Brien, counsel, instructed by

the Treasury Solicitor

 

 

DECISION BY THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the appeal.

 

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 28 January 2014, in relation to the Appellant’s appeal against Decision Notice FS50498491, does not involve any error on a point of law. The appeal to the Upper Tribunal is therefore dismissed and so the First-tier Tribunal’s decision stands.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS

 

An outline of the background to this appeal

1. Goldsmith International Business School Limited (“Goldsmith IBS”) made a request under the Freedom of Information Act 2000 (“FOIA”) to the Home Office about immigration decision notices relating to two of its students. The Home Office refused the request, citing the exemption in section 40(2) of FOIA (personal data). The Information Commissioner (“the Commissioner”) subsequently upheld that refusal.

 

2. Goldsmith IBS then appealed to the First-tier Tribunal (“the Tribunal”), which dismissed its appeal (EA/2013/0190), holding that the section 40(2) exemption had been properly applied by the Home Office and then the Commissioner. Goldsmith IBS now appeals to the Upper Tribunal, permission having been given by Judge Bartlett QC, who presided at the Tribunal hearing.

 

3. The principal legal issue that arises on this appeal is the proper interpretation of the test of “reasonable necessity” to be applied when considering condition 6(1) of Schedule 2 to the Data Protection Act 1998 (“DPA”).

 

A summary of the Upper Tribunal’s decision

4. I conclude, for the reasons that follow, that the Tribunal’s decision does not involve any error of law. I therefore dismiss the appeal to the Upper Tribunal by Goldsmith IBS.

 

The oral hearing before the Upper Tribunal

5. I held an oral hearing of this appeal at Field House in London on 2 December 2014. The Appellant was represented by Mr Ladi Tokosi, Head of Operations, assisted by Mr Emman Aluko, Business School Principal. The First Respondent was represented by Mr Christopher Knight and the Second Respondent by Mr Richard O’Brien, both of Counsel. I am grateful to them all for their assistance.

 

The factual context

6. Goldsmith IBS is a college specialising in accountancy and business studies. Students, and especially international students, are the life blood of such an enterprise. Public universities and private colleges alike have a keen interest in the framework of immigration law and practice as it affects overseas students, and particularly those from outside the European Economic Area (EEA). This framework has radically changed over the past five years or so, but the following very compressed summary suffices for present purposes.

 

7. In 2009 the Home Office introduced Tier 4 of its points-based immigration system, which controls entry by students who wish to study full-time in the UK. Educational institutions which wished to enrol non-EEA students had to apply to the United Kingdom Borders Agency (UKBA) to join the register of Tier 4 licensed sponsors. Such sponsors have access to the Sponsor Management System (SMS), an on-line system used to assign colleges’ Confirmations of Acceptance for Studies (CASs) to students and for other reporting and updating purposes. In 2011 the Home Office decided that all licensed sponsors had to achieve Highly Trusted Sponsor status, a status governed by various published criteria. Goldsmith IBS has not been granted that status, and so has not been able to issue CASs since April 2012 (see further below). Although I did not hear direct evidence as to the matter, this has presumably had a significant impact on student recruitment.

 

8. Mr O’Brien advised me that the current position at national level is that there are a total of 1,578 Tier 4 sponsors, split into two categories. The majority (1,286) are Highly Trusted Sponsors, while the remaining 292 are “A-rated Sponsors”. A little over 10% of the Highly Trusted Sponsors (some 156) have subscribed to the additional Premium Service offered by the Home Office. This is not a status as such, but rather an enhanced customer service with various special benefits (provided at a fee of £8,000 p.a.).

 

The judicial review litigation context

9. Goldsmith IBS is an A-rated Sponsor within the Tier 4 system. In October 2011 it applied for Highly Trusted Sponsor status. In April 2012 the Home Office refused that application, principally because it took the view that the college’s refusal rate (the proportion of its sponsored students whose entry applications were refused by UKBA entry clearance officers) was over the published threshold of 20%. Goldsmith IBS considered this decision was both unfair and based on erroneous data and made an application for permission to apply for judicial review, which was granted in December 2012.

 

10.  Irwin J. heard the substantive application for judicial review on 5 March 2014 and 16 April 2014. His Lordship’s judgment of 2 May 2014 granted the college’s application and quashed the Secretary of State’s decision to refuse the application for Highly Trusted Sponsor status ([2014] EWHC 1232 (Admin)). The main reason for that decision was Irwin J’s conclusion that the Secretary of State’s decision was unlawful because she had failed properly to apply her own clear and unambiguous guidance (see e.g. [33], [35] and [37]). In particular, His Lordship held that decisions by entry clearance officers to refuse applications by students who had only one CAS (rather than two CASs) for a combined ACCA and BSc (Hons) course awarded in conjunction with Oxford Brooks University were based on a flawed understanding of the Home Office’s own rules. It was this group of more than 60 students which had apparently tipped the college over the maximum 20% refusal rate. The full details of this litigation (and indeed what has happened since) are not of direct relevance to the present appeal. I simply make the following two observations in this context.

 

11.  First, the Tribunal heard the FOIA appeal after the Administrative Court had given permission to apply for judicial review but before the substantive hearing before Irwin J. The Tribunal hearing was attended by Mr Tokosi and Mr Aluko for the college. The Commissioner had made a written submission but did not send a representative to the hearing. The Home Office was not a party to the appeal at that stage, although Ms J Millar from the department’s Information Access Team attended the hearing as an observer, although she plainly also made some brief contribution to the proceedings.

 

12.  Second, the judicial review proceedings were plainly fiercely contested. I rather suspect the college may well have formed the view that the Home Office first took an irrational and unfair decision and then proceeded doggedly to try and defend that decision for the best part of two years. Unfortunately the college’s sense of injustice has spilled over into the present proceedings in a way which has hindered rather than helped this separate judicial process. I return to this point later.

 

The FOIA request made to the Home Office

13.  Goldsmith IBS’s original request, made by e-mail on 22 January 2013, was for “information; specifically for copies of some GV51 (LRA) PBS T4 (General) – Notice of Immigration Decisions issued by your overseas posts” (I call these “GV51 refusal letters”). The Home Office (eventually) refused, arguing that the exemption under section 40(2) of FOIA applied, i.e. exempting personal data if disclosure would breach any of the data protection principles.

 

14.  Goldsmith IBS then applied for an internal review. FOIA is commonly described as being “motive blind”, but the college explained the reason for its request as follows: “we are bound to report information about the outcome of each application as part of our sponsor reporting duty so, it is only fair and reasonable to be able to obtain a copy of the refusal letter, to validate each refusal (and the reason(s) for refusal), to enable us to make the necessary report placed upon Tier 4 sponsors” (e-mail dated 22 April 2013).

 

15.  The Home Office’s internal review confirmed its decision to rely on section 40(2). Goldsmith IBS complained to the Commissioner, clarifying that it was seeking the GV51 refusal letters for two particular students (identified by their CAS references). The Commissioner in his subsequent Decision Notice concluded that the Home Office had correctly applied section 40(2). On 30 August 2013 the college appealed to the Tribunal.  

 

An outline of the relevant legislation

16.  I can safely summarise most of the relevant legislative provisions. The effect of section 40(2) of FOIA is that a request for personal data of a third party may only be disclosed if such disclosure is compatible with the data protection principles enshrined in the DPA. Section 40(2) is an absolute exemption, so the public interest balancing test does not apply (FOIA, section 2(3)(f)(ii)). The term “personal data” is broadly defined by section 1 of the DPA as “data which relate to a living individual who can be identified”. The first data protection principle (as set out in Part 1 of Schedule 1 to the DPA) is that personal data “shall be processed fairly and lawfully” and in particular shall not be processed unless at least one of the conditions in Schedule 2 is met. Aside from the individual’s consent (Schedule 2, condition 1), the most significant condition in Schedule 2 is typically condition 6(1), which is in the following terms:

 

“The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.”

 

The First-tier Tribunal’s decision

17.  In summary the Tribunal decided that the Commissioner and the Home Office were entitled to conclude that the information sought was the personal data of a third party (namely the individuals students in question), who could be identified from the disclosure at least by the college, and that disclosure would not be compatible with the first data protection principle. This was because none of the conditions set out in Schedule 2 to the DPA was met. In particular, the Tribunal decided that condition 6(1) was not satisfied, as disclosure was not “necessary” processing within the meaning of that provision.

 

18.  The Tribunal set out its reasoning on this point as follows:

 

“52. The word ‘necessary’ is to be understood in the sense discussed in Corporate Officer of the House of Commons v IC [2008] EWHC 1084 (Admin) at [43]. The word is stronger than ‘reasonable’ or ‘desirable’ but not as strong as ‘indispensable’. There must be a pressing social need and the interference must be both proportionate as to means and fairly balanced as to ends.

 

53. We have considerable sympathy with the College, and with the difficulties that it has faced. But we are not persuaded that Condition 6 is satisfied. Our factual finding is that the College has legitimate reasons, both for its own purposes, and for the public purposes of supporting the integrity of the sponsorship and immigration system, for wishing to see the contents of immigration decisions issued to its prospective students. Based on this finding, we can see the desirability, even the strong desirability, that the College should have been given access to the notices of immigration decisions in response to its request. But desirability is not necessity.

 

54. As regards the two particular notices in question, if they were of substantial significance for the College’s position we would expect them to be sufficiently disclosed in the judicial review proceedings. We were not given any reason to believe that they are in some way more important or more significant than the 62 which the College was able to obtain in the judicial review proceedings. There are other ways in which the legitimate interests of the College can be or could have been advanced. The judicial review proceedings are one way. In addition, we see no reason why it was not open to the College to require prospective students, at the time of applying to the College, to provide their consent to disclosure, so that condition 1 would be satisfied. It would also have been possible for the contract with the student to be so framed as to bring into play condition 2.

 

55. Given our conclusion on the question of necessity, we do not need to go on to consider the balance under condition 6 between the legitimate interests of the College and the rights and freedoms or legitimate interests of the data subjects.

 

56. We would add that it seems conceivable that the Home Office’s disclosure of

visa application outcomes to Highly Trusted Sponsors could be made pursuant in some way to condition 6, given the legitimate interests of the Home Office, as data controller, in running a tight regime with the Highly Trusted Sponsors. If this were the case, it would not be inconsistent with our decision that condition 6 cannot be relied on by the College to escape the impact of the exemption in FOIA s40(2). It merely underlines that the Home Office should have advised the College at the outset that the appropriate procedure would be for the Home Office to consider the College’s request not in relation to a member of the public under FOIA but as part of its dealings with a Tier 4 sponsor.”

 

The grounds of appeal and the parties’ submissions to the Upper Tribunal

19.  The college advanced two grounds of appeal. First, it argued that the Tribunal had failed properly to apply the test of “reasonable necessity” when considering condition 6(1) of Schedule 2 to the DPA. Second, it contended that the Tribunal had overlooked important evidence and facts in arriving at its decision.

 

20.  The Commissioner, resisting the appeal, submitted that the Tribunal had correctly applied the relevant provisions of FOIA and the DPA and had made findings of fact which were reasonably open to it on the evidence before it.

 

21.  The Home Office, which of course had not been a party below, was only joined at a relatively late stage in the Upper Tribunal proceedings. It adopted the Commissioner’s submissions in relation to the substantive issues around the provisions of FOIA and DPA, but made a number of further submissions on ancillary matters in these proceedings.

 

A preliminary legal point: a sponsor’s reporting duty

22.  Goldsmith IBS has consistently argued that it needs access to the requested information in order to comply with its own reporting obligations to the Home Office. Its skeleton argument concluded with a request that the college’s appeal be allowed so as to “establish an authoritative decision on this issue that over 1,250 Tier 4 (Student) sponsors rely upon to establish their legitimate right of access to the requested information in terms of Condition 6(1) of Schedule 2 to DPA 1998.”

23.  It is therefore important to be clear about the scope of the sponsor’s reporting duties. These are set out in the UKBA document Tier 4 of the Points Based System – Policy Guidance (Version 09/11; the same obligations are set out in Version 12/12 at §534-§535 and §538). The guidance states as follows:

 

“Reporting duties

461. Unless stated otherwise, you must report the following information to us within 10 working days using the sponsor management system. It tells us about students who do not attend, do not comply with our requirements, or disappear. We use the information to take enforcement action against them when necessary.

 

462. You must report on students even if they are on a pre-sessional course at a partner institution named on their CAS or a work placement which forms part of their course.

 

Students who do not enrol

463. You just tell us if a student you have assigned a CAS to does not enrol on their course within the enrolment period. You must report this no later than 10 working days [after] the enrolment period has ended. You must include any reason the student gives for not enrolling for example if they:

·         missed their flight;

·         have decided not to come to the UK;

·         have decided to take up a course with a different sponsor; or

·         have had their application for permission to come to, or stay in the UK refused.”

 

24.  Mr Tokosi, for Goldsmith IBS, sought to persuade me, by reference both to the Policy Guidance and the options available on the SMS drop down menus, that this meant that the college needed to know the outcome of a student’s entry application in order to comply with its legal reporting obligations as a Tier 4 sponsor. Mr Knight and Mr O’Brien, for the Respondents, submitted that the college’s duty was to report a student’s non-enrolment, and not his or her refusal of entry. In Mr O’Brien’s summary, a sponsor (i) had to report a student’s non-enrolment within 10 days; (ii) had to report the reasons if the student gave any; but (iii) did not have to report reasons if the student gave none.

 

25.  I agree with the Respondents’ construction of sponsors’ reporting duties for the following two principal reasons.

 

26.  First, it seems to me the Policy Guidance is linguistically clear on its own terms. Paragraphs §461 and §463 of Version 09/11 (and parallel provisions in subsequent versions) stress that the primary obligation is to report non-enrolment and the secondary and contingent obligation is to report the reason for non-enrolment (e.g. a refusal of entry clearance) if, but crucially only if, that information is vouchsafed by the student.

 

27.  Second, this reading of the scope of a sponsor’s reporting duties is confirmed by the case law: see R (On the application of WGGS Ltd) v Secretary of State for the Home Department [2013] EWCA Civ 177 at [36], [42] and [43] per Jackson LJ and R (On the application of the London College of Management) v Secretary of State for the Home Department [2012] EWHC 1029 (Admin) at [45] per HH Judge Robinson, sitting as a Judge of the High Court). It follows that although there will be cases where the sponsor simply does not know why a student has failed to enrol, a college’s reporting obligation is limited to reporting the fact of non-enrolment.

 

28.  Mr Tokosi relied on both the lay-out of the SMS drop-down menus and the guidance given to students to support his reading of the reporting obligation. I did not find these arguments persuasive. The SMS drop-down menus were equally consistent with the view that the default position was that the duty was limited to reporting the bare fact of non-enrolment if no other information was available, a fact that could be reported without any knowledge of the outcome of the student’s immigration entry application. Furthermore, the SMS interface and its functionality, whether or not they are optimal for users, are very much the operational tail which cannot wag the legal (and/or) policy dog. In addition, the published guidance to students does not actually require students to tell their sponsoring institution of their reasons for non-enrolment or suggest that sponsors will have to provide reasons.

 

29.  Accordingly I proceed on the basis that a Tier 4 sponsor’s primary reporting obligation is to report to the Home Office the fact of a student’s non-enrolment, and only to give a reason for non-enrolment if the student has provided one.

 

Ground of appeal 1: the test of “reasonable necessity”

30.  The college’s principal ground of appeal was that the Tribunal had failed properly to apply the test of “reasonable necessity” when considering condition 6(1) of Schedule 2 to the DPA.

 

31.  In summary, Mr Tokosi argued that disclosure to the college of the outcome of each individual student’s visa application which it sponsored met the test of “reasonable necessity”, not least given the legitimate interests of the data controller (the Home Office, in terms of maintaining tight immigration controls) and third parties such as the college (in terms of reporting non-enrolments and as a means of validating potentially sham claims of visa refusals that then lead to unwarranted claims for refunds of tuition fees). The college argued that disclosure was actually in furtherance of condition 6(1) of Schedule 2 to the DPA, rather than being inconsistent with that principle. Mr Tokosi argued that Goldsmith IBS had demonstrated a “pressing social need” for disclosure and that the Tribunal had wrongly interpreted the test of “reasonable necessity” so as to set the bar too high for the college to meet.

 

32.  Mr Knight, for the Commissioner, on the coat-tails of whose arguments Mr O’Brien hung for these purposes, submitted that there was no error of law in the Tribunal’s approach to the proper test under condition 6(1) of Schedule 2 to the DPA. The Commissioner accepted that the college had an interest in seeing the information and a legitimate reason for doing so, as the Tribunal had accepted (decision at [30]). So disclosure may well have been desirable. However, and as noted above, the college did not need the information in order to comply with its reporting obligations. As Mr Knight put it, “a legitimate wish is not a reasonable need”, echoing the Tribunal’s assessment that “desirability is not necessity” (decision at [53]).

 

33.  In making his submissions Mr Knight referred me to four authorities, being (in date order) decisions of the Information Tribunal, the Divisional Court, the Supreme Court and the Upper Tribunal respectively. These were: (1) Corporate Officer of the House of Commons v Information Commissioner and Others (EA/2007/0060-0063, 0122-0123 and 10131) (abbreviated here to “Corporate Officer (Information Tribunal)”); (2) Corporate Officer of the House of Commons v Information Commissioner and Others [2008] EWHC 1084 (Admin) (“Corporate Officer (Divisional Court)”); (3) South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55 (“South Lanarkshire”); and finally (4) Farrand v Information Commissioner [2014] UKUT 310 (AAC) (“Farrand”). The last, of course, was decided after the Tribunal had given its decision on the present appeal.

 

34.  Mr Knight helpfully set out eight principles or, as I prefer to call them, eight propositions, derived from this case law. I set them out below, including references to the relevant passages in the various decisions as authority for these propositions as (a) I endorse them; (b) they assist in resolving the present appeal; and (c) this taxonomy may well prove a useful roadmap for the Commissioner and other First-tier Tribunals when seeking to chart a path through the thicket of issues thrown up by Condition 6(1) of Schedule 2 in other cases. My natural resistance to referring to first instance decisions as “authorities” in this context is overridden here, given that the appeals from the decisions in Corporate Officer (Information Tribunal) were dismissed by the Divisional Court and the Information Tribunal’s observations have subsequently received the endorsement of the Supreme Court in South Lanarkshire.

 

35.  Proposition 1: Condition 6(1) of Schedule 2 to the DPA requires three questions to be asked:

 

“(i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?

(ii) Is the processing involved necessary for the purposes of those interests?

(iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?”

 

Authority: South Lanarkshire at [18].

 

36.  Proposition 2: The test of “necessity” under stage (ii) must be met before the balancing test under stage (iii) is applied.

 

Authority: Corporate Officer (Information Tribunal) at [58], South Lanarkshire at [18] and Farrand at [29].

 

37.  Proposition 3: “Necessity” carries its ordinary English meaning, being more than desirable but less than indispensable or absolute necessity.

 

Authority: Corporate Officer (Divisional Court) at [43] and Farrand at [26]-[27].

 

38. Proposition 4: Accordingly the test is one of “reasonable necessity”, reflecting the European jurisprudence on proportionality, although this may not add much to the ordinary English meaning of the term.

 

Authority: Corporate Officer (Divisional Court) at [43], South Lanarkshire at [27] and Farrand at [26].

 

39.  Proposition 5: The test of reasonable necessity itself involves the consideration of alternative measures, and so “a measure would not be necessary if the legitimate aim could be achieved by something less”; accordingly, the measure must be the “least restrictive” means of achieving the legitimate aim in question.

 

Authority: Corporate Officer (Information Tribunal) at [60]-[61] and South Lanarkshire at [27].

 

40.  Proposition 6: Where no Article 8 privacy rights are in issue, the question posed under Proposition 1 can be resolved at the necessity stage, i.e. at stage (ii) of the three-part test. 

 

Authority: South Lanarkshire at [27].

 

41.  Proposition 7: Where Article 8 privacy rights are in issue, the question posed under Proposition 1 can only be resolved after considering the excessive interference question posted by stage (iii).

 

Authority: Corporate Officer (Information Tribunal) at [60]-[61] and South Lanarkshire at [25].

 

42.  Proposition 8: The Supreme Court in South Lanarkshire did not purport to suggest a test which is any different to that adopted by the Information Tribunal in Corporate Officer (Information Tribunal).

 

Authority: South Lanarkshire at [19]-[20] and Farrand at [26].

 

43.  I agree with Mr Knight that the Tribunal’s approach (at [52]-[55] of its decision, see paragraph 18 above) was consistent with those propositions of law. The Tribunal had accepted that the college had a legitimate interest it was pursuing in line with stage (i) of the three-part test set out in South Lanarkshire (at [18]; Tribunal’s decision at [53]). The Tribunal then correctly directed itself as to the legal test for “reasonable necessity” at stage (ii) of the tripartite test (see Tribunal’s decision at [52]). True, it did not directly cite the Supreme Court’s decision in South Lanarkshire, but the threshold was set at the right level. In addition, the Tribunal correctly observed that the college’s understandable wish to have access to the information could be met by a number of other methods which interfered less with students’ privacy (Tribunal’s decision at [54]). The fact that a student’s consent could be withdrawn just as quickly as it was given did not undermine the other examples of alternative strategies. Having found that stage (ii) was not satisfied, the Tribunal correctly concluded that it need not consider the balancing exercise at stage (iii) (Tribunal’s decision at [55]).

 

44.  If there is a criticism of the Tribunal’s decision, it is that it may have attributed (at [53] of its decision) too high a degree of desirability to the information being sought, given the true nature of the reporting duty incumbent upon colleges. However, this was ultimately an evaluative judgement. Even with that arguably over-generous approach to the factual assessment of “reasonable necessity”, the college’s case still failed to meet the threshold, which had been set at the right level. It follows that I dismiss the first ground of appeal.

 

Ground of appeal 2: important evidence and facts overlooked

45.  Goldsmith IBS’s second ground of appeal was that the Tribunal had overlooked important evidence and facts in arriving at its decision. In particular, the college argued that the Tribunal had failed to give sufficient weight to the Home Office’s practices with regard to its Premium Service for Highly Trusted Sponsors. In short, the college’s case was that the Home Office blew hot and cold with regard both to section 40(2) of FOIA and to its obligations under the DPA. According to the college, the Home Office observed section 40(2) when convenient, yet at other times ignored section 40(2) and the DPA when it suited the department. The present case, where section 40(2) was relied upon as an absolute exemption to the college’s FOIA request, was an example of the former approach. Conversely, it was argued, the latter approach was exemplified by the facilities made available to those Highly Trusted Sponsors who subscribed to the Premium Service, which (it was said) necessarily involved a breach of students’ privacy rights. Particular reliance was placed on a UKBA webpage which described one of the benefits of the Premium Service in the following terms:

 

“Management information reports on Confirmation of Acceptance for Studies (CAS) allocation and outcome of student visa applications: Monthly reports will be sent out to all Tier 4 Premium Service sponsors”

 

(see now https://www.gov.uk/government/publications/tier-4-premium-customer-service-for-sponsors/tier-4-premium-customer-service-for-sponsors).

 

46.  The Tribunal dealt with this issue at [32]-[33] of its decision:

 

“32. The Home Office makes available to Highly Trusted Sponsors a premium service at a cost of £8,000 per annum. The College alleges that, as part of the premium service, the Home Office notifies Highly Trusted Sponsors of the outcome of immigration applications, and that this is inconsistent with its reliance on FOIA s40(2).

 

33. The rather scanty available information concerning the premium service does not show that the reasons for refusal are notified to the Highly Trusted Sponsor, except where the prospective student has given express consent, but it does appear probable that the outcomes of visa applications (presumably without the reasons) are notified to the Highly Trusted Sponsor. If that is so, it is not clear to us how that is done consistently with the Home Office’s data protection obligations, but this does not affect our decision, because we have to apply the law to the circumstances of the case before us, not to a different set of circumstances. (We comment on this further at paragraph 56 below.)”

 

47.  In the concluding section of its decision the Tribunal commented further in these terms:

 

“56. We would add that it seems conceivable that the Home Office’s disclosure of visa application outcomes to Highly Trusted Sponsors could be made pursuant in some way to condition 6, given the legitimate interests of the Home Office, as data controller, in running a tight regime with the Highly Trusted Sponsors. If this were the case, it would not be inconsistent with our decision that condition 6 cannot be relied on by the College to escape the impact of the exemption in FOIA s40(2). It merely underlines that the Home Office should have advised the College at the outset that the appropriate procedure would be for the Home Office to consider the College’s request not in relation to a member of the public under FOIA but as part of its dealings with a Tier 4 sponsor.”

 

48.  Mr O’Brien, for the Home Office, explained that the monthly reports that are provided to the sub-set of Highly Trusted Sponsors who subscribe to the Premium Service (just over 10 per cent; see paragraph 8 above) set out the outcome of Tier 4 immigration applications by students who have been sponsored by the institution in question. The reports do not set out the reasons for that outcome, nor provide access to copies of the GV51 refusal letters. It follows that Premium Service sponsors are in no better position to obtain reasons for refusals of entry clearance, or copies of GV51 refusal letters, than other Highly Trusted Sponsors or A-rated Tier 4 sponsors.

 

49.  The Tribunal was obviously in a difficult position in dealing with this matter, not least as at that stage the Home Office had not applied to be joined as a party. From the limited information it had available, the Tribunal correctly deduced as a matter of fact that those Highly Trusted Sponsors who subscribed to the Premium Service were advised of the outcomes of applications by sponsored students, but not the reasons for refusals. As the Tribunal acknowledged, that still potentially raised data protection issues. However, for present purposes the critical point was that, as the Tribunal found, it had “to apply the law to the circumstances of the case before us, not to a different set of circumstances” (decision at [33]). As Mr Knight put it in terms of the well known adage, and assuming for the present that the Home Office is indeed in breach of its DPA obligations, two wrongs do not make a right.

 

50.  For the avoidance of doubt, I must make it clear that I do not make a finding that the Home Office is either in conformity with, or in breach of, its DPA obligations in notifying the outcomes of applications by sponsored students in its monthly reports to the Premium Service subscribers. It may or may not be able to point to a relevant applicable provision in Schedule 2 to the Act. That is an argument for another day in another case when the point has to be addressed head on. I did not hear detailed argument on the issue and, for the purposes of this appeal, which is solely concerned with the college’s FOIA request, I did not need to hear such argument.

 

51.  Mr Tokosi made a number of further arguments in connection with the grounds of appeal. However, these were essentially criticisms directed to the Home Office’s SMS system and/or the application of the criteria it used to determine whether a sponsoring institution qualified as a Highly Trusted Sponsor. Although clearly important to Goldsmith IBS, my view was that these matters did not directly impact upon the lawfulness of the Tribunal’s decision on the appeal relating to the original FOIA request, so I do not need to address them further here.

 

Final comments

52.  In the course of its written submissions on the appeal, the college has made a number of critical comments, sometimes in intemperate terms, about the conduct of the Commissioner and the Home Office (and their representatives). I should make it clear that I do not find those criticisms justified.

 

53.  First, the college’s submissions at times confused the respective roles of the Commissioner and the Home Office. The Commissioner is an independent regulator and was at no time acting on behalf of the government department. Likewise, the suggestion that there was a degree of collusion between the Commissioner and the Home Office is entirely misconceived. It so happens that in this case there was a considerable degree of common ground between the two Respondents. However, I am well aware that in other FOIA litigation the Commissioner has advocated an approach very different to that argued for by the government department concerned. Allegations of collusion are the currency of conspiracy theorists and do not do the college any credit.

 

54.  Second, a considerable amount of heat (if not a lot of light) was generated in connection with the Home Office’s separate disclosure to the college’s solicitors of the two GV51 refusal notices which had been sought under the original FOIA request. The Treasury Solicitor, on behalf of the Home Office, had sent the two notices as attachments to an e-mail to the solicitors acting for the college in the judicial review proceedings, stating this was being done “pragmatically through the litigation route as part of our disclosure with your client and not via the FOI request”. This e-mail was sent on 17 April 2014, the day after the High Court hearing ended, but before judgment had been handed down on 2 May 2014. In the present proceedings the Home Office stated that it had disclosed the two refusal notices (one of which had in fact already been disclosed at an earlier stage in the proceedings in the High Court) “in the course of the judicial review proceedings”. The college alleged this statement was factually misleading and a misrepresentation of the true position, contending that the notices were not actually disclosed to itself by the Home Office until 22 May 2014, three weeks after those proceedings had ended. I do not need to resolve this matter for the purposes of this appeal and it is disproportionate to devote undue attention to the matter. However, I am satisfied that there was a valid disclosure to the college’s solicitors in the still extant judicial review proceedings on 17 April 2014. I certainly do not accept that the Home Office has sought deliberately to mislead the Upper Tribunal on this matter.

 

55.  Third, the college made a number of other accusations in rather florid and at times strident terms, for example the suggestion that Mr Knight had made written submissions “bordering on the fringe of perjury”. That sort of language is entirely unhelpful and completely unjustified, when counsel is simply seeking to put his client’s case. Lawyers have very clear responsibilities as regards not misleading courts and tribunals. Mr Knight’s conduct of the case for the Commissioner (and indeed Mr O’Brien’s for the Home Office, for the avoidance of doubt) has been wholly in accord with those duties.

 

Conclusion

56.  I therefore dismiss this appeal to the Upper Tribunal. The decision of the First-tier Tribunal stands.

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 16 December 2014 Judge of the Upper Tribunal