Following complaints by openDemocracy about the workings of a secretive ‘clearing house’ within the Cabinet Office for freedom of information (FOI) requests, the House of Commons public administration and constitutional affairs committee (PACAC) found that the clearing house was placing significant barriers to releasing information in a timely manner and that judgements about the release of information were made depending on who was making the application. Journalists were particularly disfavoured.
Yorkshire Bylines has also experienced government obfuscation, delay and failure to answer even simple requests for information.
The report finds delay and failure to answer questions
The PACA report was published on 29 April. The Conservative-chaired PACAC noted the poor response of the Cabinet Office to enquiries about the workings of the unit, including to the information commissioner. The summary report states that the committee:
“Has received evidence of poor FOI administration in the Cabinet Office and across Government which appears to be inconsistent with the spirit and principles of the FOI Act. Notably in relation to non-applicant blind handling, how Public Interest Tests are evaluated and delays in FOI handling.”
Delay and failure to answer questions were a feature of the system and it was difficult to disentangle political motives from poor administration and inefficiency.
At Yorkshire Bylines we have considerable experience of poor FOI practice from the government, though it is not just journalists that are obstructed, but also organisations or those who seek information in order to do their jobs.
Yorkshire Bylines FOI request: settled status for EU citizens
At the end of the ‘grace period’ for EU citizens to make an application for settled status on 30 June 2021, Yorkshire Bylines sent the following request for information and documentation to the Home Office:
1. The total number of applicants to the EUSS received by close of play on 30 June. The number of applicants received on each Day from 21 June to 30 June inclusive. 2. The total number of applicants in the system awaiting processing at close of play on 30 June. 3. The estimated length of time it will be before the last application received on 30 June will be dealt with. 4. The number of paper applications received. 5. The number of applicants who do not have a smart phone or access to a computer to show their SS code. 6. The estimated number of EU citizens living in the UK and eligible for SS but who have not yet applied. 7. The number of applicants who have received pre-settled status and will need to apply for and be processed by the Home Office from 30 June to 31 December 2021. Please also provide copies of guidance for Home Office and immigration officials on what will happen to those who have (already) been rejected for settled status and/or those who have not applied by 30 June. The published Home Office guidance discusses how staff should determine if the reason for a late application is reasonable but does not set out the procedure to be followed where such information is not provided or is not convincing. Please send any copies of additional staff guidance on these and their legal basis. If no such further guidance exists, please confirm this
Home Office failure to respond
We were seeking the information to understand the numbers of EU citizens ‘in the system’ at the end of the grace period and the likely implications this would have for future processing and for the risk of people being without settled status or unable to prove they had it.
The request was sent on 29 June and, in line with FOI standards, we were told that we would receive a reply within 20 working days (i.e., by 28 July). On 5 July, a further Home Office response said that, as statistical information was to be published in due course, it would not provide information for us. Refusing to provide information on the basis that it is shortly to be published is in accordance with FOI guidance, but the refusal should have been applied to only one question (question two on the total number of applicants as at 30 June).
On 27 July, we wrote again to the Home Office seeking the rest of the information. The Home Office elected to consider this request as a ‘review’ of their initial decision, and it has been in the pending pile ever since. The PACAC report found a number of enquiries were treated in this way and, while most FOI requests are subject to strict time limits for answering, those placed for review have none. The ‘review’ category is therefore a major vehicle for refusing to answer questions without advising the applicant of this.
Applications for settled status
In addition to our own enquiries, we are aware of other groups that also sought information from the Home Office at the end of the grace period in order to support EU citizens who had not yet applied for settled status.
Many pro-Europe groups undertook campaigns between January and June 2021 to ensure as many EU citizens as possible applied for settled status before the cut-off date. These groups contacted local employers, schools and local authorities, urging them to ensure they found EU citizens and supported them to apply. They also sought out potential applicants themselves through word of mouth and local networks and encouraged them to apply.
During this period, it became clear that the level of knowledge regarding settled status amongst many EU citizens was poor. Many did not believe it applied to people like themselves who had lived in the UK for decades, while others, often with poor English language skills, did not even know of its existence. The government did not allow paper applications until just a week before the deadline and advice in all the necessary languages was not in place until just a couple of months before the closing date.
Organisations such as the Catholic Church, normally in regular contact with their members from Eastern Europe, were closed because of covid, as were pubs and restaurants with staff furloughed. As a result, pro-Europe groups had difficulty contacting those most likely to miss the deadline.
The government was aware that many people would miss the deadline through no fault of their own. It was already evident that many older people who had spent most of their lives in the UK would not know they had to apply, and many were not able to do so independently. Children who were ‘looked after’ (cared for) by the state would be unaware of the need and many families, particularly those who had a child born in the UK, may also have been unaware.
Freedom of information request: Home Office guidance on late applications
The government issued guidance as to how such cases would be dealt with and the tone and expectations were sympathetic. Guidance had also been issued to local authorities and prisons to check on those for whom they had a responsibility. While it was clear that those who were on the ‘at risk’ list of failing to apply would be treated sympathetically, the guidance was unclear about the treatment of others – for example, ordinary people with poor English, or those who had assumed, however erroneously, that they did not need to apply. Those supporting EU citizens needed to know how late applications would be dealt with, prior to encouraging people to make one.
Two groups – Upper Wharfedale for Europe and Cornwall for Europe – sought information from the Home Office on the policies and guidance that would apply in respect of such people. Neither received a reply, and in one case, despite further requests. Other than the standard response to say the request has been received, there has been no further response.
Protecting FOI
The Home Office has a particularly poor reputation in respect of releasing information, not just in respect of FOI requests but also in respect of the research or consultation data or equality impact assessments expected to be published along with policy proposals.
The information that the Home Office holds is collated and paid for by the tax-payer and should not be withheld for political reasons. FOI is a right that must be protected.
Please get in touch if you have made FOI requests to the government (or other public bodies) and have failed to receive an adequate response.
