Edward Williams v The Information Commissioner & Anor

Introduction

1. This is an appeal against Decision Notice referenced IC-2308292-G8J6 dated 18 December 2024.

2. The Appellant requested invoices payable by the Home Office for taxis transporting those whom he described as “migrants/asylum seekers” to and from a named hotel (“the Site”). The Home Office refused to confirm or deny that it held the requested information, pursuant to s38(2) of the Freedom of Information Act 2000 (“FOIA”) (health and safety).

3. By the Decision Notice, the First Respondent (“the Commissioner”) decided that the Home Office was entitled neither to confirm nor deny that the Home Office held the requested information pursuant to S38(2) FOIA.

4. The Tribunal’s decision is unanimous. The Request

5. On 20 August 2023, the Appellant sent this request to the Home Office: “Please provide the 10 latest invoices payable by you recd. for taxi/mini-cabs for transporting migrants/asylum seekers to/from [the Site]. You may redact the details of the taxi firm”

6. On 19 September 2023, the Home Office responded. The Home Office said: “ I am unable to confirm whether the Home Office does hold information within the scope of your request. Under section 12(2) of the FOIA, the Home Office is not obliged to comply with an information request where to do so would exceed the appropriate limit. We estimate that the cost of identifying whether any information is held would exceed the appropriate limit of £600 specified in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. We are therefore unable to comply with it. The £600 limit is based on work being carried out at a rate of £25 per hour, which equates to 24 hours of work per request. The cost of locating, retrieving and extracting information can be included in the costs for these purposes. In this case the time taken to identify whether information is held, would exceed this limit. This is because the Home Office is unsure if the information you are seeking exists, as it is not something that we routinely track, monitor or report. If the information you are seeking does exist, it would involve reviewing large datasets and invoice details and/or third-party management information to identify, determine and distinguish, if any of the information you have asked for is recorded. Furthermore, we are unsure if the Home Office receives invoices for individual hotels in a way that would enable the reporting of the requested costs. It is estimated that the time taken to search for and collate any information falling within scope of your request would exceed the appropriate limit, therefore section 12 of the Act is engaged. If you refine your request, reducing the amount of information you ask for, we will consider it again. However, it is difficult for us to suggest how you could narrow your request as any request involving a significant amount of searching is likely to exceed the cost limit for the reasons explained in this letter. However, if you wish to submit a revised request, we would be happy to consider it. I should also point out that if you submit a revised request, it is possible that other exemptions in the Act might apply.”

7. On 19 September 2023, the Appellant refined his request to ask for the three most recent invoices instead (“the Request”).

8. On 17 October 2023, the Home Office refused the Request, again pursuant to s12(2) FOIA, on materially the same terms as it had refused the Appellant’s request of 20 August 2023.

9. On 17 October 2023, the Appellant requested an internal review. This did not take place.

10. On 18 May 2024, the Appellant complained to the Commissioner.

11. The Commissioner investigated. In the course of that investigation, the Appellant provided the Commissioner with a press article, pre-dating the Request, reporting a protest at the Site against the housing of “illegal migrants”.

12. During the Commissioner’s investigation, the Home Office reviewed its refusal of the Request and, on 30 October 2024, issued a revised response stating that it was unable to confirm or deny whether it held the requested information, relying now on s38(2) FOIA.

13. Pausing here: we note that the Home Office’s position from the outset has been neither to confirm nor deny it held information responsive to the Request, impliedly and effectively so when it relied initially on s12(2) FOIA and then, expressly so, when it subsequently relied on s38(2) FOIA. The Decision Notice

14. By the Decision Notice, the Commissioner decided that: a. It was not necessary for him to know whether the Home Office held the requested information in order to reach a decision as to the lawfulness of the Home Office neither confirming nor denying it held the requested information pursuant to s38(2) FOIA. b. If the Home Office were to confirm that the requested information was held, that would necessarily reveal whether the Site was used to accommodate asylum seekers, which could lead to individuals accommodated at the Site being exposed to threats and harassment, which would likely lead to the endangerment of health and safety. Accordingly, s38(2) FOIA was engaged. c. In relation to the issue of whether the public interest in maintaining the exemption from the duty to confirm or deny whether the requested information was held was outweighed by the public interest in confirmation or denial: i. If the information was held, confirmation would advance a public interest in promoting transparency as to the approach to accommodating and supporting asylum seekers, and enable the public to have confidence in the Home Office’s approach to the welfare of asylum seekers; ii. On the other hand, there was a very clear and weighty public interest in avoiding endangerment to the safety of any individual, so that the Home Office was entitled to rely on s38(2) FOIA neither to confirm nor deny that the requested information was held. The Appeal

15. By Notice of Appeal dated 18 December 2024, the Appellant submits this: “ It was public knowledge at the time of request that the hotel was being used to house migrants. The PIBT [public interest balance test] as regards NCND [neither confirm nor deny] was therefore wrongly decided. Migrant hotels are not secret, local people, including staff, know what is happening in advance of change of use, and tell others. The hotel is still being used to house migrants today. This is why it is impossible for the public to book a room.”

16. The Appellant supplied with his Notice of Appeal a press article pre-dating the Request, which identified the Site as housing refugees and as having attracted hostile activity against refugees at the Site, and which indicated planned similar activity at another site. The Commissioner’s Response to the Appeal

17. By Response to the appeal dated 27 January 2025, the Commissioner relies on the findings in his Decision Notice and submits that the Appellant’s grounds of appeal do not disturb his decision regarding the engagement of s38(2) FOIA or the balancing of the public interest test. The Appellant’s Reply to the Commissioner’s Response

18. By Reply to the Commissioner’s Response to the appeal dated 27 January 2025, the Appellant submits, in summary: a. The Decision Notice gives no reason as to why confirming or denying the requested information was held would likely lead to the harms which s38(2) FOIA is designed to protect. b. The Commissioner does not deny the authenticity of the press article attached to the Appellant’s Notice of Appeal. c. The Commissioner has erred in not stating on balance if the press article provided by the Appellant to the Commissioner in the course of the latter’s investigation was accurate. d. The correct test is not whether the press article or other evidence constitutes official confirmation but whether or not such evidence affects the public interest balance test.

19. By an email to the Respondents dated 28 February 2025, the Appellant asked the Respondents whether they could agree that the Site was the site referred to in the press article he provided with his Notice of Appeal. Home Office Response to the appeal

20. By Response to the appeal dated 7 March 2025, the Home Office submits, in summary: a. The Home Office’s response to the Request reflects a long-standing policy not to comment on individual asylum accommodation sites where to do so would risk endangering those present there, now or in the future, including by increasing the risk that such sites would become subject to public protests and disorder of a type that jeopardises the safety and wellbeing of such persons. b. “ It is acknowledged that the risk of endangerment in this case does not flow directly from the release of information (rather, in this case, from confirmation or denial whether the information is held) but from the likely use of the fact of official confirmation (as the case may be) by threat actors, who may travel to the property in order to pursue their aims. Confirmation or denial would reveal whether the property is or was used to provide asylum accommodation, which would likely lead to endangerment of persons located there (on the assumed basis that a response would constitute official confirmation that the property is so used in this case) by attracting such actors to the property to stir up dissent. The Home Office considers that the causal link to endangerment that arose at the time of its response is clearly demonstrated by recent events.” c. The press article provided by the Appellant with his Notice of Appeal demonstrates the very risk of endangerment on which the engagement of s38(2) FOIA is founded: “ Official confirmation of which hotels are being or have been used for such purposes would increase the likelihood that those hotels would become focal points for protest and disorder, giving rise to a real and significant risk of endangerment to persons located there.” d. The fact that there is unsourced speculation about the Site in the public domain does not detract from the Home Office’s analysis: official confirmation or denial would add to or detract from such speculation with a corresponding effect on the risk of endangerment. e. Without prejudice to the Home Office's neither nor confirming nor denying that it held the requested information, on the assumed basis that a substantive response to the Request would officially confirm a link between the Site and asylum accommodation, the qualitative difference flowing from such confirmation would make the Site and its occupants “ a materially more attractive target for disorderly conduct, of a nature that carries a materially increased risk of endangerment to persons staying, working or visiting there—whether or not they are in fact occupying the hotel in connection with a pending asylum claim. ” f. The heightened risk of endangerment which would be likely to flow from official confirmation reflects both (i) an increased likelihood that harm would in fact befall such persons and (ii) an increase in the gravity of such harms that may occur. The fact that the risk of endangerment may already have arisen in relation to the Site tends to confirm, not to undermine, the very risk that the Home Office seeks to avoid by maintaining its neither confirm nor deny response to the Request. g. In relation to the public interest balance: i. the balance of interests favoured the maintenance of the exemption: “ This conclusion is plainly reasonable in view of the nature and gravity of the endangerment, including by threats and harassment as well as physical harm, which clearly outweighs the public interest in transparency as to the living arrangements of asylum seekers accommodated by [the government] and the approach taken by the Home Office to the welfare of asylum seekers. ” ii. While transparency in this policy area is an important public interest, the risk of endangerment means that official confirmation (as the case may be) of the location of particular sites used to house asylum seekers would be likely to endanger the relevant persons, providing a counterweight in the balance while positively undermining the public interest in transparency about the arrangements made for the benefit of asylum seekers. iii. The public interest in transparency may be sufficiently advanced through more generalised disclosures about the nature and location of accommodation provided, without requiring official confirmation of the use of specific properties. iv. Further, consistency of application of a neither confirm nor deny response in relation to particular sites at which asylum seekers are accommodated is necessary to protect the occupiers of those sites against endangerment. Consequently, regardless of whether a substantive response in this case would amount to official confirmation or denial that the Site is used in the way averred in the Request, departure from a consistent neither confirm nor deny response would undermine this wider policy, giving rise to a wider revelatory risk. Such risk adds further weight to the public interest in the maintenance of the exemption. h. The Commissioner was correct to conclude that the balance of the public interests favoured maintaining the exemption. i. The appeal should be dismissed. The Appellants’ Reply to the Home Office’s Response

21. On 7 March 2025, the Appellant provided a press article which post-dated the Request, reporting the criminal conviction of an individual charged with threatening, abusive or insulting words in online posts they had made encouraging people to attack the Site (the posts in question also post-dating the Request).

22. By way of Reply to the Home Office’s Response to the appeal, on 27 March 2025, the Appellant supplied four more press articles about sites other than the Site, which he said indicated that it was clearly not Home Office policy to refuse to confirm whether a site is used to accommodate asylum seekers: a. Two press articles post-dating the Request, each quoting confirmation by Mr Tim Rymer ( Deputy Director, Adult and Family Accommodation within the Asylum Support Directorate of the Home Office) that separate named sites would cease to be used to accommodate asylum seekers. Mr Rymer gave evidence in this appeal, and we address his evidence further in detail below. b. A press article pre-dating the Request, attributing a statement to an unidentified Home Office spokesman confirming that a named site would shortly be used to accommodate asylum seekers. c. A press article post-dating the Request, quoting confirmation by Mr Rymer that the same site described at b. above was the subject of plans to accommodate people who, so the article implied, were asylum seekers.

23. The Appellant invited the Respondents to reconsider their position in light of those articles.

24. On 12 March 2025, the Appellant asked the Respondents to clarify whether it was agreed, not admitted or denied that: a. a demonstration and counter-demo took place at the Site as referred to in the press article filed in support of his Notice of Appeal. b. The Site was referred to in court as referenced in the press article supplied by the Appellant as described at paragraph 21 above.

25. On 10 April 2025, the Home Office acknowledged that the Site mentioned in the Request was the same as that referred to in the press article supplied by the Appellant described at paragraph 21 above but that the Home Office could not comment on the accuracy of the article as it was “based on statements made in court and not official confirmation from the Home Office.”

26. The Home Office further stated that it could not comment on the press article supplied by the Appellant in support of his Notice of Appeal which only included reference to the Site by its former name, and did not mention the specific building named in the Request: therefore, the Home Office did not have any comments.

27. On 10 April 2025, the Appellant responded saying that the Site as named in the Request was formerly named as described in the press article supplied with his Notice of Appeal.

28. On 30 May 2025, the Appellant provided four more press articles: a. A press article pre-dating the Request referring to a “leaked” letter from Mr Rymer to a Scottish National Party minister, purportedly confirming plans to increase the number of asylum seekers in hotels. b. Three press articles, all post-dating the Request, describing in two cases assaults by asylum seekers, and in one case, the death of an asylum seeker, impliedly by suicide, at or near sites accommodating asylum seekers. The Legal Framework

29. The relevant provisions of FOIA are as follows: Section 1 General right of access to information held by public authorities. (1) Any person making a request for information to a public authority is entitled- (a) To be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) If that is the case, to have that information communicated to him. Section 38 Health and Safety (1) Information is exempt information if its disclosure under this Act would, or would be likely to— (a) endanger the physical or mental health of any individual, or (b) endanger the safety of any individual. (2) 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). Section 58 Determination of appeals (1) If on an appeal under section 57 the Tribunal considers- (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice 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; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

30. The import of s58 FOIA is that the right of appeal to the First-tier Tribunal involves a full merits consideration of whether, on the facts and the law, the public authority’s response to the Request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC) ; [2018] AACR 29, at paragraphs [45]-[46] and [90]. The Tribunal has jurisdiction to decide, de novo on the merits, whether the Commissioner’s decision is in accordance with the law. The Hearing

31. We had before us a bundle of 417 pages.

32. Two days before the hearing, the Appellant filed the sentencing remarks of the Judge in the prosecution to which we have referred at paragraph 21 above. The individual in question was convicted of an offence of publishing written material which was threatening, abusive or insulting, intending thereby to stir up racial hatred with a view to causing an attack on the Site. In those sentencing remarks, the Judge referred to the Site by its name.

33. The Home Office filed a witness statement and exhibits from Mr Tim Rymer, Deputy Director, Adult and Family Accommodation within the Asylum Support Directorate of the Home Office. The Appellant cross-examined Mr Rymer. Mr Rymer’s evidence

34. By his witness statement Mr Rymer explained that since July 2023, he has had responsibility for the service delivery teams overseeing accommodation provider performance and delivery against contract requirements and for the Asylum Support Safeguarding Hub. Prior to his current role, Mr Rymer was Deputy Director for Central Services within the then-Asylum Support, Resettlement and Accommodation Directorate (prior to that known as the Resettlement, Asylum Support and Integration Directorate from September 2020).

35. Mr Rymer explained that the Home Office has a statutory obligation under the Immigration and Asylum Act 1999 to provide accommodation and financial support to asylum seekers who would otherwise be destitute. Mr Rymer said that the Home Office allocates the accommodation on “a no choice basis”, mindful of the needs of individual asylum seekers and working closely with local authorities and other partners on the overall distribution of accommodation, taking account of a range of factors including community cohesion.

36. Mr Rymer explained that the accommodations attract a range of interest from benign curiosity to hate crimes. It is reasonable for asylum seekers to expect respect for their privacy. They are often vulnerable individuals. They may have specific needs connected to the circumstances in which they came to apply for asylum.

37. Mr Rymer explained that the Home Office uses private companies to provide and manage asylum accommodation, the relationship between those parties being governed by Asylum Accommodation and Support Services Contracts (“AASC”) since 2019. The Framework for AASC is published on Gov.uk and explains how the Home Office uses the framework to meet most of its statutory obligations to provide accommodation and support. The Home Office also publishes guidance documents relating to the framework.

38. Mr Rymer explained that Local Authorities acting under their own, separate statutory requirements, ensure that services such as education for children are available to asylum seekers accommodated in their area. Local authorities also have separate regulatory and enforcement powers regarding housing in their area and can perform an additional, separate oversight function for certain asylum accommodation.

39. In relation to the risk of endangerment to physical or mental health or safety, Mr Rymer explained that for years, there have been multiple incidents where asylum seekers have been threatened, and even attacked, while they were in or just outside their accommodation, with members of the public attempting to take photographs and videos of the accommodation and asylum seekers. Mr Rymer explained that this affects not only asylum seekers but the staff and individuals working at the relevant sites, who have also been subjected to similar treatment.

40. Mr Rymer identified several incidents before and at the time of the Home Office’s refusal of the Request, which he said indicate the risks which would be likely to flow from confirmation: “ a. In February 2023, service users of contingency accommodation had hate notes left on cars and men with masks were shouting and banging on windows of hotels used as contingency accommodation. b. In June 2023, service users were attacked in a supermarket near their contingency accommodation. c. In July 2023, two service users were attacked outside their hotel by a group of 4 or 6 young men. They shouted racially abusive language to them. One of the service users sustained an injury to his eye which resulted in hospital treatment. There are hospital records which describe that this individual suffered loss of consciousness. This whole incident was recorded on one of the service user’s mobile phones and this information was passed to the police for action. d. In October 2023, a man wearing a mask, and a fake Serco badge was observed taking pictures of a hotel. Later, an account was discovered on social media that had posted these pictures, along with other details about the hotel’s location, and highlighted that it was housing asylum seekers. e. In December 2023, an incident was reported involving two members of the public who had been seen outside for two days. They later returned and became confrontational towards Service Users. f. In August 2024, there was a planned protest outside a hotel which was being used as asylum accommodation. In the morning security started to act and put the hotel on lockdown but by the afternoon an estimated 400 people approached the hotel. Riot police surrounded the hotel, England flags were hung, protestors attacked the police and threw projectiles including fireworks at the window. g. In August 2024, there were two males that were verbally abusive to service users of contingency accommodation. They threatened that they would return with others who had swords. They also threatened to shoot the service users with a shot gun. h. h. In September 2024, the windows of a hotel were broken because of large bricks thrown towards the windows by two members of the public. i. In October 2024, there was a social media post which exposed where a service user of asylum accommodation was working and this post gained interest by leaders of right-wing groups and was shared within private groups. This service user has now relocated due to the online threats. j. In October 2024, there was a reported incident of a service user being attacked by males outside the hotel. ”

41. Mr Rymer also identified an incident in February 2023 when serious disorder, including the setting alight of a police van, occurred at a location thought by certain individuals to be asylum accommodation.

42. Mr Rymer explained that some of the events he described formed part of the riots which took place in the summer of 2024 after the murder of, and injury to, children in Southport on 29 July 2024. Mr Rymer explained that while the intensity of the riots primarily focused over the summer of 2024, protest activities continued through to the end of 2024 and the beginning of 2025. Mr Rymer said that the summer 2024 riots were precisely the sort of large-scale incident that the Home Office was seeking to protect asylum seekers against by providing neither confirm nor deny responses to requests such as the Request.

43. Mr Rymer noted certain events after the Home Office’s refusal of the Request as confirming the risk of endangerment foreseen as at the date of refusal: “a. In November 2024, seven unknown men forced entry into dispersal accommodation, assaulted Service Users and stole their bikes. One of the men reportedly used a kettle as a weapon against the Service Users. Service Users were offered relocation from the property for their safety. b. In November 2024, an unknown man approached the smoking area of a hotel used as contingency accommodation and threatened to stab people inside the hotel. Also, allegedly showed the knife to the security guard. Police have arrested this individual and has advised he will be charged. c. In November 2024, the mother of a Service User accommodated at a hotel notified the Home Office that her son had been stabbed multiple times at a train station. d. In December 2024, a hotel used as contingency accommodation received threats of petrol bomb attack. e. In March 2025, a service user was assaulted outside of the property of asylum accommodation. This was an unprovoked attack by a group of local people who were unknown to the service user. The group caused injuries to the service users face; in turn the service user has requested a relocation due to feeling unsafe in this area. ”

44. Mr Rymer explained that the perpetrators of such incidents over the years are not always necessarily local individuals but can be organised groups who are willing to travel distances to seek out and target asylum accommodation sites.

45. Mr Rymer explained that the incidents he described affect both the mental and physical safety of asylum seekers and the staff working to support them.

46. Mr Rymer explained that the seriousness of the incidents he described as well as the potential of minor incidents to escalate, were and remain at the forefront of officials’ considerations when balancing the competing public interests in a neither confirm nor deny policy evaluation.

47. Mr Rymer described the Home Offices systems to enable the identification and monitoring of risks to the physical and mental health and safety of individuals located at relevant sites: reports from the sites themselves and regular engagement with the local police force. Mr Rymer said that the risks to individuals at the relevant sites are nationwide, potentially profoundly serious, and therefore require proactive monitoring and management. In recent years, including in the months before the Request, resourcing this workstream has increased and intensified.

48. Mr Rymer explained that the Home Office has identified multiple ways to mitigate the risk of endangerment: not officially confirming the addresses of accommodation sites; instant reporting procedures; and standing down unsafe sites. The Home Office’s ability to rely on its well-established policy of neither confirming nor denying specific addresses of asylum accommodation sites is a critical tool in risk mitigation. Mr Rymer explained that it is in the public interest that the Home Office is able to comply with its statutory duties to accommodate otherwise destitute individuals and protect them from potential serious harm to their physical or mental health and safety.

49. Mr Rymer explained that the justifications for reliance on the policy of neither confirming nor denying are clear: “(i) the public interest in safeguarding vulnerable asylum seekers — including by ensuring respect for their privacy; and (ii) the public interest in the Home Office’s ability to fulfil its statutory duties to provide accommodation .”

50. In the latter context, Mr Rymer explained that there is a limited number of properties and bed spaces for the Home Office to offer to asylum seekers, and that if those addresses are made public, it is likely that they become no longer usable if they become targets of negative local and/or national attention. Specifically, certain asylum accommodation, such as a hotel, does not enjoy the fortification or relative inaccessibility, for example, that larger sites, such as army barracks, enjoy. In that context, if the Home Office is not entitled neither to confirm nor deny the use of hotels as asylum accommodation, the Home Office is likely to be forced to give up that type of asylum accommodation where the Home Office cannot ensure enough security to make it fit for purpose as a safe place to accommodate vulnerable asylum seekers.

51. Mr Rymer addressed the Appellant’s reference to online and press sources indicating that the Home Office has, on occasion, confirmed that certain sites are used for asylum accommodation. Mr Rymer explained that the Home Office’s routine practice of neither confirming nor denying the location of asylum accommodation has been subject to some exceptional instances: a. In the case of two sites being confirmed as asylum seeker accommodation by the Home Office, in fact, by comments attributed to Mr Rymer himself, the source of that information was correspondence sent on behalf of Mr Rymer to the Member of Parliament and the Chief Executive of the Local Authority notifying them of closure of the sites. The correspondence was leaked to the media, leading to public disclosure. b. In the case of a third site, the Home Office had engaged with local statutory partners on a confidential basis to explore the feasibility of using the site for asylum accommodation. Confidentiality was breached, resulting in protest, which entailed the Home Office having to undertake a limited degree of public engagement to address misinformation and provide factual clarity.

52. Mr Rymer addressed other circumstances where statutory partners, such as local authorities have appeared to confirm the address of asylum accommodation, but explained that authoritative official confirmation of the use of a given property by the Home Office can only be provided by the Home Office or other government departments. Mr Rymer explained that there is a realistic possibility that a Home Office statement confirming its use of a specific accommodation site would create a public reaction to the statement, turning the specific site into a target and heightening the risk of endangerment to its inhabitants.

53. Mr Rymer explained that in certain cases, the Home Office or its service providers must submit public facing documents to be able to set up premises as asylum accommodation. Mr Rymer said that this is a necessary exception to the neither confirm nor deny policy to allow the Home Office and its service providers to comply with relevant law.

54. In addressing the public interest in transparency and accountability, Mr Rymer identified examples of how the Home Office and service providers can be held accountable: regular inspections and publicly available reports on asylum accommodation by the Independent Chief Inspector of Borders and Immigration; multi-agency forums involving the Home Office; regular meetings to discuss site-specific issues in a coordinated manner; members of the public writing to their local Members of Parliament or Councils; the raising of concerns through parliamentary questions and debate; periodic publications by the Home Office concerning asylum accommodation; and a December 2024 Home Affairs Committee inquiring into asylum accommodation.

55. Mr Rymer concluded that the “ serious interest in creating a likely risk of endangerment to individuals’ mental or physical health or safety outweighs the interest in transparency and accountability of the Home Office and its Service Providers .”

56. The Appellant cross-examined Mr Rymer as to the basis for the Home Office’s standard practice of neither confirming nor denying whether it held information as to the identity of asylum accommodation sites. Mr Rymer was unable to point to any document before the Tribunal which stated that practice but confirmed that since he has been involved in the relevant area, that has been the Home Office’s standard practice as he understands it.

57. The Appellant cross-examined Mr Rymer as to the basis for confidentiality in the Home Office’s dealings with its statutory partners and service providers, including in relation to those cases where the identity of sites used for asylum accommodation had been disclosed. Mr Rymer said that he did not think that a confidentiality agreement had been signed in those cases, but that confidentiality is effectively understood as a result of long-standing working partnerships over the years at local, regional and national levels. Mr Rymer explained that he himself did not deal with the relevant partners and providers so could not confirm whether the need for confidentiality had been expressly communicated in relevant correspondence, but that there was an understanding of the need for care and sensitivity, and a relationship of trust, which, in his view, justified the Home Office’s expectation of confidentiality. Mr Rymer accepted that in cases where he had been directly involved, he had not personally requested confidentiality. Mr Rymer accepted that, ultimately, however, the Home Office could not control, for example, what a political leader does with relevant information

58. At the hearing, the Appellant submitted, in summary, as follows: a. The fact of Mr Rymer’s not objecting “to anything on a factual basis” was tantamount to official confirmation by the Home Office that the Site was used as a “migrant hotel”. b. There is ample evidence in the public domain to show that the Site was what the Appellant describes as a “migrant hotel”, including the sentencing comments of the Crown Court Judge in the prosecution we have referred to at paragraph20 above. c. The Crown Court is a senior Court to the First-tier Tribunal and that the Tribunal is, therefore, bound by the Crown Court’s comments, which are findings of fact. d. Given the evidence in the public domain about the Site, there was no point in the Home Office neither confirming nor denying that the Site was used to accommodate asylum seekers. For the Home Office to do so was a waste of time. e. The Appellant does not accept that asylum seekers are frightened for their safety because they are protected by security guards. Asylum hotels are, in any event, hotspots for crime. f. No harm will come of the Home Office confirming or denying it holds the requested information. g. The Home Office should make its partners and service providers sign confidentiality agreements. Analysis Engagement of s38(2) FOIA

59. We accept that confirmation or denial by the Home Office whether it held the requested information would effectively confirm or deny that the Site is or was, or might be or might have been, used for asylum accommodation.

60. The Tribunal does not know whether the Site was used for asylum accommodation and does not need to know that to determine this appeal.

61. Where such information is, or if it were held it would be, exempt information under s38(1) FOIA, then s38(2) FOIA provides that the discrete duty under s1(1) FOIA to confirm or deny that the information is held does not arise.

62. The exclusion of the duty is qualified: whether there is a duty to confirm or deny whether responsive information is held will turn on whether in all the circumstances of the case the public interest in maintaining the exclusion outweighs the public interest in confirmation or denial as to whether such information is held.

63. S38 FOIA is unique amongst the qualified exemptions in FOIA for its requirement that disclosure would, or would be likely to, endanger a protected interest as distinct from prejudicing a protected interest, which is the test required in the other qualified exemptions in FOIA.

64. We construe: a. Endangerment to physical health as meaning placing in danger the state of a person’s body i.e. exposing them to risk of non-trivial harm or injury. b. Endangerment to mental health as meaning placing in danger the mental state of an individual, beyond stress or worry. c. Endangerment to safety as meaning placing in danger the environment in which an individual is free from harm or danger.

65. We do not construe the reference to an “individual” as meaning that the Home Office need identify a named individual to demonstrate that s38 FOIA is engaged. It is sufficient, in our view, for the Home Office to identify a category or categories of individuals who may be relevantly endangered in order that the Tribunal might test the prospect of endangerment as against a putative individual in any such category.

66. How reasonably foreseeable endangerment is in any given context will determine whether there is a sufficiently close causal link between confirmation or denial that responsive information is held and endangerment. Evaluation of that requires assessment of (a) the content of the requested information, (b) the source of the confirmation or denial of the requested information being held (so as to assess its credibility), (c) the context and circumstances of those whose health or safety is said to be, or likely to be, endangered by confirmation or denial of whether the requested information is held and (d) whether other information similar or identical to the information requested is publicly available.

67. Although s38 FOIA refers to endangerment rather than prejudice, the basis for establishing its application is the same as in prejudice cases, as set out in the First-tier Tribunal decision of Hogan v Information Commissioner [2011] 1 Info LR 588, as approved by the Court of Appeal in Department for Work and Pensions v Information Commissioner [2017] 1 WLR 1 : a. first: the applicable interests within the relevant exemption must be identified. b. second: the nature of the prejudice being claimed must be considered. It is for the decision maker to show that there is some causal relationship between the potential disclosure and the prejudice, and that the prejudice is “real, actual or of substance”. c. third: the likelihood of occurrence of prejudice must be considered. The degree of risk must be such that there is a “real and significant” risk of prejudice, or there “may very well” be such prejudice, even if this falls short of being more probable than not. The Applicable Interests

68. We find that the applicable interests in issue are as follows: a. The mental and physical health and safety of both persons accommodated and staff working at the Site. b. The mental and physical health and safety of the police or any security required to address any hostile or dangerous action towards the Site. The nature of the endangerment and the causal link

69. We find a causal link between confirmation by the Home Office that the Site is or was, or might be or might have been, used to accommodate asylum seekers and likely endangerment to the mental and physical health and safety of persons accommodated and staff working at that site, as well as that of the police or security involved in addressing such dangers. We accept that confirmation itself would not be a direct cause of endangerment but an indirect cause because of the action which would, in our view based on the evidence before us, likely be taken by individuals once confirmation was issued. That is still effective causation.

70. We note that as at the date of refusal of the Request, which we take to be 17 October 2023, Mr Rymer attested to five specific incidents of dangerous or potentially dangerous behaviour at or in relation to sites which were believed to be offering asylum accommodation.

71. Mr Rymer attested to six specific similar types of incident after refusal of the Request up to October 2024, as well as the riots in the summer of 2024 more generally.

72. The Appellant did not challenge Mr Rymer’s evidence on these matters. In our view, they thoroughly vindicate the Home Office’s concerns as at the date of refusal of the Request.

73. Moreover, the evidence supplied by the Appellant himself in the form of the press articles to which we have referred indicates, in our view, that the Home Office’s concern about such sites generally is justified. We accept that such is the fast-moving and ungovernable nature of hostile and potentially dangerous action at sites believed to be asylum accommodation sites, inflamed by rapid social media use, the Home Office will rightly be concerned at the prospect of such action at any site confirmed as asylum accommodation.

74. We accept also that the Home Office may be equally concerned if it were obliged to deny that a site is used for asylum accommodation, for example in a context where the press or social media have speculated, wrongly, as to site use, and where individuals then wish to test the truth of the Home Office denial.

75. In our view, the examples provided by the Home Office of dangerous or potentially dangerous action at sites known or believed to be asylum accommodation, indicate that confirmation or denial by the Home Office that the Site was used for asylum accommodation, would be likely to give rise to all the harms anticipated by s38(1) FOIA: physical harms arising from assault or property damage, and mental harms whether suffered in anticipation of disorder or assault, during disorder or assault, or suffered in the aftermath. In circumstances where such disorder or assault might occur at a site used for asylum accommodation housing any individual or deploying any member of staff or police or security who may already be vulnerable in terms of mental health, that condition would likely be exacerbated.

76. In our view, confirmation or denial by the Home Office is a statement of ultimate authority because it is the Home Office which has statutory responsibility to procure asylum accommodation. Such confirmation or denial is an official statement by the government. It is qualitatively something entirely different from information from other sources such as the press or even statutory partners or service providers working with the Home Office. Such is its gravamen that, in our view, confirmation would positively embolden those likely to take dangerous or potentially dangerous action at or in relation to a relevant site, drawing particular attention to the site and placing it at the forefront of those persons’ minds. Any lingering uncertainty on the part of such persons, which might otherwise hold them back from action, would likely be extinguished. For the same reason, it is conceivable that denial would encourage those suspicious of and hostile to such sites to test the truth of the statement.

77. The fact that in very limited cases the Home Office may have made public comment outwith its usual policy of neither confirm nor deny, or that private Home Office commentary has been made public, does not invalidate the Home Office’s entitlement neither to confirm nor deny in this case. None of the relevant examples provided is effective, in any event, to set a precedent whereby the Home Office is subsequently prohibited in any given case from neither confirming nor denying for the policy reasons Mr Rymer has described.

78. The Appellant submits that the Home Office cannot have a valid expectation of confidentiality in its dealings with its partners to arrange asylum accommodation, if the Home Office has not expressly stipulated confidentiality over the subject matter of those dealings. We understand the thrust of that submission to be that absent any valid expectation of confidentiality, the Home Office has no entitlement neither to confirm nor deny holding responsive information on the basis that such arrangements are or should be kept confidential.

79. We have not been shown any relevant correspondence between the Home Office and its partners, so we do not know whether, in fact, it contains any express confidentiality requirement.

80. However, given the obvious sensitivity around asylum accommodation not least indicated by those public events and protests referred to by Mr Rymer, and, indeed, by the Appellant, we consider that it would be reasonably obvious to all concerned in those dealings that the relevant arrangements should, so far as possible, be kept confidential, precisely to avoid the endangerment to mental and physical health and safety which has been seen borne out in the examples provided. A matter does not need expressly to be cast in terms of confidentiality to engage confidentiality obligations or to give rise to an actionable breach of confidence. The fact that the Home Office may not have pursued any action in breach of confidence does not detract from that.

81. In any event, the issue of whether information is bound by any legal obligation in confidence is irrelevant to the issue we must determine, namely whether the Home Office is entitled neither to confirm nor deny whether it holds the requested information.

82. We turn next to the Appellant’s submission that the fact that a Crown Court judge identified that the Site was used to accommodate asylum seekers is binding on this Tribunal. We reject the submission. Sentencing remarks by the Crown Court are in no way binding upon the Tribunal in the discharge of its jurisdiction to determine whether the Home Office is entitled to rely on s38(2) FOIA neither to confirm nor deny it holds the requested information. The Crown Court has not, as the Appellant contends, made a relevant “finding of fact” which binds the Tribunal in this appeal.

83. Finally, we reject the Appellant’s submission that because, as he put it, Mr Rymer did not object to anything “on a factual basis”, the Home Office has provided official confirmation of that which the Home Office seeks neither to confirm nor deny in this case, namely that the Site is used to provide asylum accommodation. The Home Office has not at any stage confirmed or denied that it holds the requested information, including in the provision of its factual evidence. The likelihood of endangerment

84. The question of the meaning of likelihood (in, for current purposes, an equivalent context of prejudice) was addressed by the Tribunal in John Connor Press Associates v Information Commissioner (EA/2005/0005, 25 January 2006): “ We interpret the expression “likely to prejudice” as meaning that the chance of prejudice being suffered should be more than a hypothetical or remote possibility; there must have been a real and significant risk. ” In so doing, the Tribunal drew on the judgment of Munby J in R (on the application of Lord) v Secretary of State for the Home Office [2003] EWHC 2073 (Admin) (a Data Protection Act case) who said: “ 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. ” [100].

85. We adopt the interpretation of “ likely to prejudice ” as meaning that the chance of the prejudice being suffered is more than a hypothetical or remote possibility; there is a real and significant risk.

86. We adopt the reasoning of the Tribunal in Lownie v Information Commissioner & The National Archives & The Foreign and Commonwealth Office EA/2017/0087 where the Tribunal reasoned that that "would” refers to something more likely than not, i.e. a greater than 50% probability, and "would be likely" refers to there being a need for a "very significant and weighty chance" (referring to R(Lord) v Home Secretary [2003] EWCH 2073 (Admin).

87. It is evident from the material we have seen in relation to the Site and other sites believed to be asylum accommodation, that where information concerning the status of a site as asylum accommodation has come into the public domain, whether on the basis of speculation or from some more informed source, that has given rise to activities which, in our view, clearly indicate a very significant and weighty chance of endangerment to mental and physical health and safety.

88. In our view, the Home Office has established that confirmation or denial would be likely to cause the endangerments envisaged by each of s38(1) (a) and (b) FOIA. The public interest

89. Accordingly, we must consider whether the public interest in the exclusion of the duty to confirm or deny whether the requested information is held, is outweighed by the public interest in confirmation or denial.

90. The Appellant submits that the correct test is whether the press article he provided or “other evidence”, by which we assume he means other evidence which he says indicates use of the Site for asylum accommodation, affects the public interest balance in this context.

91. We disagree. In our view, that submission wrongly conflates the probative value of such evidence in assessing the application of s38(1) FOIA (specifically causation and likelihood of endangerment) with what is a separate assessment under s38(2) FOIA of whether the public interest in maintaining the exemption from the duty to confirm or deny is outweighed by the public interest in confirmation or denial. In that latter context, the evidence to which the Appellant refers is irrelevant.

92. We must assess the public interest as at the date of refusal of the Request: 17 October 2023. Although the Home Office only sought to rely on s38(2) FOIA to refuse the Request by its revised neither confirm nor deny response to the Appellant of 30 October 2024, that was an exemption open to the Home Office to rely on as at 17 October 2023 whe n it first refused the request in reliance on s12 FOIA. We do not consider that we should treat 30 October 2024 as the date of refusal of the Request. In late reliance on an exemption under Part 2 of FOIA (which includes s38 FOIA), a public authority is necessarily pointing to the qualitative nature of requested information which persisted at the time of the initial refusal of the request and thus which already accommodated that exemption. We consider that the date of refusal of the Request for current purposes is 17 October 2023. Even if we are wrong in that determination, and 30 October 2024 should be regarded as the date of refusal of the Request, that does not change our determination of the public interest balance.

93. We accept that there is a strong public interest in transparency and accountability in relation to the Home Office’s approach generally to accommodating asylum seekers and Mr Rymer has given examples of how the Home Office and service providers publish material in relation to their approach to accommodating asylum seekers, and how, by those means, the Home Office can be held accountable.

94. However, we cannot see that those matters of generality are directly relevant to our assessment of the public interest issue in this appeal: whether the public interest in the Home Office confirming or denying that it holds the requested information, namely data in three taxi receipts which might evidence the cost, fact, date and other aspects of transporting asylum seekers to and/or from a specific location on specific occasions and where responding to the request might, but not necessarily would, indicate whether or not that the location is or has been used to accommodate asylum seekers, outweighs the public interest in maintaining the exception from the duty to confirm or deny, where confirmation would, as we have found, be likely to have the effects mentioned in s38(1) (a) and (b) FOIA.

95. We accept that there is public interest in transparency as to whether individual sites are used for asylum accommodation, resting predominantly, as we see it, in the impact on the communities in which the sites are located and the safety of those accommodated or working at such sites. However, we do not accept in this case that that public interest outweighs the public interest in the Home Office being entitled neither to confirm nor deny it holds the requested information whose content and significance might, but not necessarily would, indicate that a particular site is used to accommodate asylum seekers, where confirmation or denial is likely to have the endangering effects we have identified based on the evidence before us.

96. The Appellant submits that asylum hotels, of which he believes the Site to be such a type, are hotspots for crime. Even if that is correct, and bearing in mind that such criminal activity might be undertaken by a variety of persons acting for a variety of motives, that seems to us to add weight to the public interest in the Home Office neither confirming nor denying it holds information which might positively stimulate any type of such activity, including that by persons motivated by antipathy to such sites.

97. Viewing matters in the round, and with specific regard for the examples of dangerous action before us at sites known or believed to be asylum accommodation, we are satisfied that neither confirming nor denying the requested information is held in this case protects both asylum seekers, some of whom may be very vulnerable, and also site staff and police, from the risk of significant harm to their physical and mental health and to their safety. In our view, the public interest in achieving that protection significantly outweighs the public interest in the Home Office confirming or denying whether it holds the requested information.

98. We bear in mind Mr Rymer’s evidence that the simplest and most effective way to mitigate the potential for harm is not to confirm the addresses of asylum accommodation sites. We accept that the Home Office’s ability to rely on a well-established policy of neither confirm nor deny is a critical tool in mitigating risks to individuals located at those sites and ensuring that those sites remain viable. There is an inherent public interest in the Home Office being able to comply with its statutory duties to accommodate otherwise destitute individuals, shielded from potential harm to their physical or mental health and safety. We consider there is a very strong public interest in not depriving the Home Office of its simplest and most effective tool in that context. Nothing in the examples the Appellant has shown us of exceptional diversions from that policy detracts from that.

99. Finally, we address for completeness, the Home Office’s submission in its skeleton argument, by reference to the Supreme Court decision in IC v Montague v DBT [2025] UKSC 27 , that the weight to be afforded to the furtherance of the related public interests in avoiding the endangerment anticipated by each of s38(1) (a) and (b) FOIA should be aggregated.

100. S38(2) FOIA specifically provides that the duty to confirm or deny does not arise if, or to the extent that, compliance with s1(1) FOIA would, or would be likely to have, either of the effects mentioned in s38(1) FOIA. We have found that confirmation or denial would be likely to have both the effects envisaged. We accept that the public interests in avoiding the endangerment envisaged by each provision may be aggregated, although in our view each is singly sufficient in this case to outweigh any public interest in the Home Office confirming or denying it holds the requested information.

101. We are satisfied that the public interest in maintaining the exception from the duty to confirm or deny that the Home Office held the requested information substantially outweighs any public interest in confirmation or denial by the Home Office as to whether the requested information was held. Conclusion

102. We find that the Home Office was entitled neither to confirm nor deny that it held the requested information pursuant to s38(2) FOIA. The Decision Notice was in accordance with the law.

103. Accordingly, the Appeal must be Dismissed.