Chapter 05: Section 31(1)(e) - operation of the immigration controls
5.1 Application of the exemption
The term "immigration controls" is not defined in the FOI Act.
It does not cover simply the physical immigration controls at points of
entry into the United Kingdom, but more generally the arrangements made
(whether in or under legislation, or as a matter of policy or procedure)
in connection with entry into, and stay in, the United Kingdom, including
the investigation of offences relating to immigration [footnote
1].
The disclosure of information would, or would be likely to, prejudice the
operation of the immigration controls if its release into the public domain
would, or would be likely to, undermine the effectiveness of our immigration
controls by enabling or assisting people to evade those controls. Information
does not have to be about immigration controls, although it may be, as long
as its disclosure would cause prejudice.
Examples of circumstances where disclosure might prejudice the operation
of immigration controls include disclosure of:
Information that there was extensive counterfeiting of travel documents
of a particular country, on the basis of which travel documents purportedly
issued by that country were to be subjected to particular scrutiny.
In this case, the disclosure of the information or the identity of
the targeted country might prejudice the operation of the immigration
controls because it would alert counterfeiters (and persons making
use of their services) to use another country's travel documentation
for these purposes instead.
Information which would reveal an incidence of suspected illegal
working which was to be investigated by the immigration service. In
this case, the disclosure of the information about the proposed investigation
might prejudice the operation of the immigration controls because
it would alert the employers and the illegal workers in advance and
would enable them to escape investigation.
Information on proposed changes to visa regimes. The imposition
or amendment of visa regimes usually takes place with little or no
notice being given to the public. This is because visa regimes are
generally introduced in order to prevent evasion or abuse of immigration
controls by nationalities who, over time, have been shown to pose
a higher risk of evasion or abuse than other nationalities when seeking
to enter the United Kingdom. Therefore the disclosure of information
relating to visa regimes could, in some cases, prejudice the operation
of immigration controls because it would encourage persons from the
countries which are due to be affected to seek to enter the United
Kingdom before the changes are introduced, thus avoiding the more
stringent regime which has necessarily been developed.
5.2 The Public Interest Test
In the immigration context there are a number of public interest considerations
which may, in the context of a particular request, favour disclosure. There
is a public interest in ensuring that there is public confidence in the
operation of our immigration controls, and one way of ensuring this is to
keep the public informed of policies, developments, proposals for the future,
etc, together with explanations of them. Linked in with this, there is a
public interest in ensuring that the public have access to correct information
- because immigration is an emotive issue set in a complex framework, it
is inevitable that there may be inaccurate information about immigration
issues circulating in the public domain which ought to be corrected.
In particular, it will be in the public interest to provide information
which confirms the performance of immigration control for example in providing
statistics on the number of passengers and applications that are handled
by the Immigration and Nationality Directorate. There is also a public interest
in establishing that the implementation of immigration control is carried
out in accordance with the published statements and policies by providing,
wherever possible, details of implementation of immigration control.
There is also a public interest in ensuring that those who are subject
to immigration controls are aware of those controls and how they operate,
as this may discourage such persons from seeking to enter the United Kingdom
illegally.
Equally there are a number of public interest considerations which may,
in the context of a particular request, favour non-disclosure. There is
a public interest in ensuring that:
people are not able to evade or abuse our immigration controls in
order to enter the United Kingdom illegally;
the efficiency and integrity of our immigration controls are not
undermined; and
investigations into suspected immigration offences can be conducted
effectively.
Immigration controls are important in order to regulate entry to and settlement
in the United Kingdom, in which there is a clear public interest.
5.3 Potential overlap with other exemptions
In cases where it is considered that this exemption may apply, there may
be an overlap with some of the other exemptions, in particular:
section 31(1)(a) and (b) (prevention or detection of crime; apprehension
or prosecution of offenders) - for example in relation to criminal
offences such as people trafficking or illegal working which are designed
to reinforce the system of immigration controls;
section 35 (formulation of government policy - for example in relation
to the formulation of immigration policy);
section 36 (prejudice to effective conduct of public affairs - for
example to the extent to which the effective conduct of public affairs
relies on the free and frank provision of advice in the context of
formulating immigration policy/policy on immigration controls); and
section 40 (personal data - for example in relation to specific
immigration cases).
Footnotes:
See, in a different context, S.I. 2003 / 2818 which contains a broad
definition of "immigration control" along similar lines
