Internal review of response to request under the Freedom of
Information (FoI) Act 2000 by Vincent Aleck (reference 12555)
Responding Unit: UK Border Agency International Group
Chronology
Original FoI request:
04 August 2009
Acknowledgement:
05
August
2009
First Request for an internal Review
06 September 2009
UKBA
response:
15
October
2009
Second request for an internal review:
29 October 2009
Acknowledgement of request for internal Review
02 December 2009
Subject of request
1. Mr Aleck asked for information about the UK Border Agency (UKBA)’s
Entry Clearance Guidance section EUN2.15, which can be found at the
following web page:
http://www.ukvisas.gov.uk/en/ecg/eunationalsschemes/eeafamilypermit#2084
4623
2. The section states ‘This guidance is currently under review’. Mr Aleck’s
request was in the form of six questions, which are set out in the
attached
Annex A.
The response by UKBA
3. UKBA responded to Mr Aleck, by e-mail, on 15 October 2009, this e-
mail is attached at
Annex B. UKBA provided responses to all six of Mr
Aleck’s questions.
Mr Aleck’s request for an internal review
4. Mr Aleck asked for an internal review on 06 September, before any
response had been sent out. The request for an internal review was
made on the grounds that the response was overdue and no reason for
the delay had been provided by UKBA.
5. On 29 October UKBA e-mailed Mr Aleck in order to ascertain why he
was not satisfied with the response he had received on 15 October.
The requester replied asking for an explanation of:
• The time it took to respond to e-mails
• Why the e-mails went unanswered?
• Why certain information requested was not answered, without a
specific exclusion given?
Procedural issues
6. The request for information was received by UKBA Freedom of
Information Team on 04 August and a formal acknowledgement was
sent, by e-mail, on 05 August.
7. The delay in response was due to two factors; firstly, there was a delay
in the internal allocation of the request; and secondly, the person to
whom the case was allocated was on annual leave for a period of three
weeks during the time in which the case should have been handled.
The case was not reallocated to another member of staff. UKBA have
now put in place measures to ensure that this is not repeated.
8. The UKBA response of 15 October was sent 52 days after the receipt
of the request. This was substantially in excess of the 20 working day
limit imposed by section 10(1) of the FoI Act.
Consideration of the response
9. I have considered the UKBA response to Mr Aleck’s request.
Question a
10. Mr Aleck requested a copy of the most recent guidance that was
available before being placed under review. The UKBA response
provided Mr Aleck with the guidance that had been archived in
December 2008. I am satisfied that the UKBA response provided the
information requested and that there is no further guidance on this
issue.
Question b
11. The UKBA response of 15 October explained that the guidance has
been placed under review because the issue of dual nationality and it’s
meaning under EU law is not clear. This follows the Court of Appeal
case
McCarthy (Eire) v Secretary of State for the Home Department
(SSHD), which can be found at the following link:
http://www.baili .org/ew/cases/EWCA/Civ/2008/641.html
12. This case has now progressed to the House of Lords who have
referred a number of questions to the European Court of Justice, where
determination is stil pending. The referred questions can be found at
the following link:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:011:001
8:0019:EN:PDF
13. The UKBA response should have clearly stated that the reason for the
review of paragraph EUN2.15 is the referral from the House of Lords to
the European Court of Justice.
Question c
14. Mr Aleck asked for the possible outcomes of the review. The response
from UKBA stated that the review of the guidance is pending until the
outcome of the case of
McCarthy v SSHD.
15. In his request for an internal review on 29 October Mr Aleck asks why
no specific exclusion is given, when the information requested in the
response is not answered (sic). In the review, I have assumed that in
the use of the word exclusion the requester is referring to the
exemptions set out in the FoI Act. A review of the guidance could take
a number of different directions based on the outcome of
McCarthy v
SSHD case and until the case is concluded UKBA are unable to
provide information on the direction of the review. It is not for the SSHD
to prejudge the handling of the case before the ECJ.
16. There appears to have been no need to cite an exemption in this case,
as no information was available for release due to the fact that it did
not, as yet, exist. The response failed to explicitly say whether or not
the information was held. In this respect the response of 15 October
was in breach of section 1(1)(a) of the FoI Act.
17. I am satisfied that the response was reasonable, if brief, on the basis
that the possible or likely outcomes of the review cannot be accurately
speculated upon until the judgment is made.
Question d
18. The requester asked for the likely outcome of the review. The UKBA
response simply referred Mr Aleck back to the response to question c.
For the reasons given in paragraphs 15 and 16 above it would not have
been possible for UKBA to provide the information requested as it did
not, as yet, exist.
19. The response failed to explicitly say whether or not the information was
held. In this respect the response of 15 October was in breach of
section 1(1)(a) of the FoI Act.
Question e
20. Mr Aleck requested information about the timelines for the review.
Again, the reply from UKBA referred him back to the response to
question c, which states that a review of the guidance is pending until
the outcome of
McCarthy v SSHD.
21. I have been informed that any review of section EUN2.15 wil only take
place once the ECJ rules in the case of
McCarthy v SSHD. There is no
set timeframe for the ECJ to consider this case. Consequently, at the
time of the response UKBA would not have been in a position to state
any likely timeframe of the review. The response failed to explicitly say
whether or not the information was held. In this respect the response of
15 October was in breach of section 1(1)(a) of the FoI Act.
Question f
22. Mr Aleck asked for the current guidance provided by UKBA to ECO’s,
pending the outcome of the review. UKBA’s response disclosed the
information requested. I can confirm that there is no further guidance
on this issue and all of the information was disclosed to Mr Aleck in the
UKBA response.
Advice and assistance
23. The requester sent a number of e-mails, starting on 06 September, to
UKBA asking about his internal review. The responder failed to
acknowledge these e-mails until 02 December 2009. I have been
informed that the Freedom of Information Team did not respond to Mr
Aleck’s e-mails earlier because of a lack of resource at the time.
24. The responder failed to inform Mr Aleck of any reason why the request
took longer than 20 working days to be completed.
25. On 29 October UKBA e-mailed the requester to ask why he was not
satisfied with the response that he had received.
Conclusion
26. The UKBA response of 15 October was provided to Mr Aleck outside
the 20 working day limit and so was in breach of section 10(1) of the
FoI Act.
27. UKBA failed to provide any explanation as to why their response would
take longer than 20 working days to complete or reply to any of Mr
Aleck’s e-mails requesting an update the current position.
28. The UKBA response of 15 October provided proper responses to all six
of Mr Aleck’s questions.
29. The response should have made it clear that there was no information
available to be disclosed, in relation to questions c, d and e. In this
respect the response of 15 October was in breach of section 1(1)(a) of
the FoI Act.
Information Access Team
Home Office
23-Mar-10
