Larry Julien v The Information Commisssioner [2026] UKFTT 1159 (GRC)

[2026] UKFTT 01159 (GRC)Case Reference: FT/EA/2026/0069
First-tier Tribunal
(General Regulatory Chamber)
Date 13 August 2026
Information Rights
Heard by Cloud Video Platform
Before
TRIBUNAL JUDGE SHENAZ MUZAFFERTRIBUNAL MEMBER JO MURPHYTRIBUNAL MEMBER ANITA BAPAT
Between
LARRY JULIENAppellantTHE INFORMATION COMMISSIONERRespondentDECISION: The appeal is dismissed.REASONS
[1]This is an appeal against a decision of the Information Commissioner (“the Commissioner”) dated 27 January 2026, reference IC-413917-X4L6 (“the Decision Notice”).[2]The hearing took place via Cloud Video Platform on Friday 24 July 2026. The Tribunal was satisfied that it was fair and just to conduct the hearing in this manner. The Appellant represented himself. The Respondent did not attend, having previously indicated that they did not intend to do so.

Factual background

[3]The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns a request for information made to the Home Office.

The request and response

[4]The request which is the subject of this appeal was made on 03 February 2025 in writing as follows: “My name is peter Julien and i seek a full subject access record of my mother and farther [sic] Mrs MILDRED AGATHA JOHN– Date of birth 11th December 1915 and Mr JULIUS JULIEN– date of birth – 15th May 1907. They both were born in Grenada (British overseas territory). I am aware that she was registered as a CUKC or naturalized, registrar as such by her parents mainly who where Mrs Helen John and Mr Festus John from snell hall, sauteurs – st. Patrick Grenada. I have attached a photo. I also seek records of any naturalization / registration certificates as a CUKC (citizen united kingdom colonies) British overseas territory citizen. And any passports• details of their immigration history, for example, dates applications were submitted and decisions made• landing cards• List of all applications made Your assistance is greatly appreciated”.• details of their immigration history, for example, dates applications were submitted and decisions made• landing cards• List of all applications made[5]The request was made by Mr Peter Julien, the father of the Appellant. Due to Mr Peter Julien’s ill-health, the Appellant has now stepped in as a party to the proceedings.[6]The Home Office responded to the request on 04 March 2025, indicating that they had handled the request as a request for information under the Freedom of Information Act 2000. The response from the Home Office read as follows: “Following a thorough search of our systems we have been unable to find any immigration records relating to both MILDRED AGATHA JOHN, born 11 December 1915 in Grenada, and JULIUS JULIEN, born 15 May 1907 in Grenada. I can also confirm His Majesty’s Passport Office (HMPO) does not hold any UK passport records in the following names: Julius Julien and Mildred Julien, otherwise Mildred John / Mildred Agatha John”.[7]Mr Peter Julien sought an internal review on 15 May 2025, which read as follows:
“I write in response to my subject request report requesting an Internal review please note that due to severe health issues it takes time for me to read and be literate in using a computer being 87 years old, your understanding is deeply appreciated. The reason for my dissatisfaction with this report is relating to the photo provided, as attached above, that is a photo I kept of her for many years as this is the only memory I have of her, if you look closely there is a clear official seal/stamp (across the centre of her chest, from the bottom (centre) going up towards her left shoulder) bearing “British”
Your use of discretion here is also appreciated as they may be visible with naked eye. It is mainly because of this reason that I conclude that the Home Office has made an error not registering her digitally / electronically on its systems. With regards to my previously [sic] email requesting an internal review it may be helpful to state the reasons why I further believe she may not have been correctly registered digitally / electronically on the home office systems. Reasons why she may have been registered “British” on the photo provided would only come from a passport photo as the standard quality for such photo is the background scenery being white etc and can only come from the HMPO I assume, and evidence why she may have held that status. Please See attached copy of her birth certificate of Grenada, and notice where she was born, in snell hall (st. patrick) which was a slavery estate in which its citizens/subjects held British status (CUKC) and of course you can understand why her rights were taken away from her in that respect. Additionally, it is noted in the published document by the home office entitled “Background information on Nationality” pages 10 under the 1922 Act which states “However, the 1922 Act excluded children born between 1915 and 1922” which shows possible historical discrimination against women being born between 1914 onwards”.[8]The Home Office responded to the request for an internal review on 13 August 2025 as follows: “The main focus of your complaint is that you have a photo of your mother which you believe was produced by HMPO which leads you to believe that the Home Office does hold the information that you requested. I have carefully considered your comments and consulted with the business area that responded to your request. Upon review, I find the response provided to you to be correct. I am satisfied that searches were conducted across all relevant teams within the Home Office and that the databases and information repositories held by those teams have been appropriately examined. I am satisfied that not information is held by the Home Office. If it is the case that your parents were registered in Grenada, then those records will have been held locally by the British Embassy in Grenada and not held as part of the central UK government’s records, which may explain why it is that no information is held on your parents”.[9]The Home Office provided Mr Peter Julien with a hyperlink to a GOV.UK website which contained information about British subjects, and a second hyperlink to a ‘help’ page on the UK Visas and Immigration website.

The complaint and the Commissioner’s investigation

[10]Mr Peter Julien lodged a complaint with the Commissioner on 13 August 2025, in which he stated that he disagreed with the Home Office’s assertion that it did not hold the requested information and/or believed that the Home Office held more information than had been provided.[11]The Commissioner accepted the complaint as being eligible for formal consideration on 10 September 2025.[12]On 25 September 2025, Mr Peter Julian emailed the Commissioner to draw their attention to a UK Supreme Court decision in The Advocate General for Scotland (Appellant) v Romein (Respondent)(Scotland) UKSC/2016/0165 which concerned provisions of the British Nationality Act 1948. Mr Peter Julien stated that the decision “highlights historical legistrative [sic] unfairness where mothers were discriminated against (sexism) in registering themselves and their children born outside of the uk, where as men were allowed to, which sparked a change in the law”.[13]Mr Peter Julien stated that “As with the example of the Windrush scandal, records of British citizens were unlawfully destroyed thus making it difficult for its citizens to live or gain entry back to the uk. It is my belief that the same approach has happened to my mother’s records that the home office is concealing it from me and my children”. He went on to state that, if the information relating to his mother was not found, it could prohibit his children from gaining British citizenship, and that he could not understand why the Home Office was concealing the requested information from him. He attached a copy of his mother’s birth certificate, a photo of his mother, and an email from a company called Matrix Forensic Accounting & Investigation who had viewed the photo and had stated “it appears to be embossed “RITISH”, which suggests that the word would be BRITISH”.[14]On 14 November 2025, the Commissioner wrote to Mr Peter Julien stating as follows: “The Home Office has confirmed that, following thorough searches across all relevant teams and databases, no immigration or passport records are held in relation to your parents. They have also explained that if your parents were registered in Grenada, those records would have been held locally by the British Embassy in Grenada and not as part of the central UK government’s records. This may explain why no information is held by the Home Office. Under section 1 of the FOIA, a public authority is only required to confirm or deny whether it holds the requested information and, if held, to communicate it to the applicant. In this case, the Home Office has confirmed that it does not hold the information you have requested. It is not required to make a comment or opinion on why it does not or no longer hold the information if it ever held it in the first place. We cannot comment on the relevance of photographs bearing a “British” stamp, as this does not affect the Home Office’s statutory obligations or the outcome of their searches”.[15]The Commissioner asked Mr Peter Julien whether, in light of the information provided by the Home Office, he would be content for the Commissioner to close the case informally or whether he would like the Commissioner to proceed further with the complaint and to issue a formal Decision Notice.[16]Mr Peter Julien responded to the Commissioner on 15 November 2025, stating that the comment of “this may explain why no information was held by the Home Office” in the Commissioner’s response appeared to be a hypothetical opinion or assumption. He stated that, by their own admission, the Home Office had destroyed thousands of landing card slips recording Windrush immigrants’ arrival dates in the UK, which was a potential breach of the statutory obligations of the Home Office [presumably to retain data]. He recommended that the British Embassy Grenada and the Home Office communicate internally to confirm if the records of his parents were held and, if not, that his mother be re-registered to protect the rights of his children and himself as British citizens. He also referenced a report by Wendy Williams, namely the “Windrush Lessons Learned Independent Review” from 2018 which concluded that the scandal was “foreseeable and avoidable”. He indicated that he wished to proceed to a formal Decision Notice.[17]On 18 November 2025, the Commissioner emailed Mr Peter Julien to state that the remit of the Commissioner was to determine whether a public authority had complied with its obligations under FOIA, and that matters such as internal governance, record-keeping policies and the destruction of documents by public authorities fell outside of the scope of the FOIA and the Commissioner’s statutory responsibilities. The Commissioner suggested that Mr Peter Julien may wish to submit a new information request to the Foreign, Commonwealth & Development Office (“the FCDO”) to determine whether they held any relevant records in Grenada.[18]On 26 November 2025, the Commissioner wrote to Mr Peter Julien to confirm that his case had now been formally allocated to a caseworker for investigation.[19]On the same date, the Commissioner contacted the Home Office and invited them to respond to a series of questions about the searches that had been conducted, whether records had been destroyed, and about retention and deletion policies. The Home Office was asked to respond by 24 December 2025.[20]On 28 November 2025, Mr Peter Julien contacted the Commissioner to provide a copy of the email from Matrix Forensic Accounting & Investigation (see paragraph 13 above), and also a response from the FCDO (see paragraph 29 below). He stated that there was no reason why the Home Office were unable to find his mother’s records nor assert that she was British.[21]He also attached a ‘response letter’ in which he asserted that the public interest test was relevant to his case, and that the public authority should consider whether the public interest in disclosure outweighed the public interest in withholding the information. The crux of the letter was that he was unable to register himself or his children as British citizens as he could not obtain documentation such as his mother’s landing card or passport, and that the Home Office had admitted destroying such information in 2009-2010. He stated that the Home Office should be able to use official channels, other than those involving the local British High Commission, to verify a document from overseas.[22]Later the same day, Mr Peter Julien emailed the Commissioner again to attach a letter from the Windrush Commissioner which showed that he had been eligible to apply under the Windrush scheme and showing the impact on himself and his children who were legally entitled to have the information that he had requested from the Home Office. The letter, dated 07 October 2025, observed that the “the Home Office Windrush scandal has caused significant harm to many individuals and families” and provided information and resources, including about the Windrush Compensation Scheme, for the assistance of Mr Peter Julien.[23]On 11 December 2025, Mr Peter Julien contacted the Commissioner to state that he had received a response from the FCDO which “proves that the home office is intentionally withholding my mothers information and wont [sic] disclose it". It appears that the response from the FCDO is that which was sent on 04 December 2025 (see paragraph 29 below).[24]On 19 December 2025, the Home Office provided a substantive response to the questions posed by the Commissioner. The response stated as follows: i. By way of background, the Home Office outlined that, under the British Nationality Act 1948, individuals born abroad as British subjects could acquire citizenship, but whether it was automatic would depend on factors such as their date of birth and whether their country of birth had gained independence from Britain at that time. Records of such registrations were often created and held overseas, and so are rarely part of Home Office (UK Visa & Immigration’s (“UKVI”)) central archives; ii. UKVI would generally retain personal data only for as long as necessary to fulfil its statutory functions, which could typically range from between six months and fifteen years. UKVI do hold some records beyond those timeframes where such records had been removed from a destruction order due to a specified action, such as an FOI request; iii. The Home Office stated that “When the FOI deceased team receives a request for historical records, we conduct comprehensive searches across all UKVI databases. These databases contain all immigration records, such as visa applications for all categories including entry clearance visas, refused applications and Windrush claims. Additional searches are also requested via the Knowledge & Information Management Unit (KIMU), who check databases for physical records. If physical records are found, we read through them to locate the information requested. We also liaise with Border Force for entry/exit dates to the UK, and His Majesty’s Passport Office (HMPO) to conduct searches of the British passport database. If no records are found, and it is possible records could have been held prior to 1986 (which is the cutoff date in which older cases were moved to The National Archives), we will advise the requester to ask The National Archives”; iv. In relation to the specific request, the Home Office stated that a full comprehensive search of all UKVI digital databases as per (iii) above had been conducted by the FOI deceased team, and the KIMU had also conducted a full search of both the old and current UKVI file management database for any physical records. No digital or physical records were located for the deceased; v. HMPO had also undertaken a thorough search of their microfiche records, including using different variations of names, to identify if any passport records were held. It was noted that records prior to February 1974 (when Grenada gained independence) were not normally held. No passport records were found; vi. It was outlined that, for an FOI deceased search where the full name of the deceased was available, a search would also be done using the first name and surname separately, and both with and without middle names. For older databases, a wildcard search would also be conducted to determine if the individual was on record with a different spelling of their name. A wildcard search would involve using the first three letters of the first name and surname. These searches were conducted using the personal details of Mildred Agatha John, born 11 December 1915 in Grenada, and Julius Julien, born 15 May 1907 in Grenada; vii. In relation to whether any information may have been held but deleted, the Home Office stated that “Windrush claims would show up on our usual searches, and we could then contact the Windrush team asking them to release the requested information to us if required. No information was identified in this case”; viii. The Home Office stated that, if a file had been destroyed, it would still show up on their databases as destroyed / concluded. In relation to the specific request, no records were found at all which suggested that, if British registration had been completed, it likely occurred abroad.[25]The Home Office concluded that, based on the explanations that they had provided to the Commissioner and the extent of the searches carried out, on the balance of probabilities it did not hold the information requested.

Engagement with the Foreign, Commonwealth & Development Office

[26]On 24 November 2025, Mr Peter Julien sent an email to the FCDO in which he made a request pursuant to the FOIA regarding information relating to his mother and father. Mr Peter Julien enclosed a copy of a photograph of his mother, on which he said either a British stamp or seal was visible, and a copy of his mother’s birth certificate.[27]On the same date, the FCDO sent an email to Mr Peter Julien, in which they stated that they were unable to assist with his enquiry, and suggested that he contact the local civil registry in Grenada for birth records. The FCDO stated that “when a former British colony became independent, most civil registration records (births, marriages, deaths) were transferred to the new government. The UK Foreign, Commonwealth & Development Office (FCDO) and its consulates do not retain original civil records from former colonies”.[28]On 28 November 2025, Mr Peter Julien contacted the FCDO to clarify that he was not looking for the birth records of his mother, but rather was looking for any passport, landing cards, or application records.[29]On 04 December 2025, the FCDO responded to Mr Peter Julien to say “We suggest that you contact the Home Office with your request as they are the lead government department for passports and landing cards”. The FCDO provided an email address for the FOI Team at the Home Office and also a hyperlink to the Home Office’s website.

Decision notice

[30]The Decision Notice was issued on 27 January 2026.[31]The Commissioner’s decision was that, on the balance of probabilities, the Home Office did not hold information within the scope of the request. The Commissioner did not require any further steps to be taken.[32]The Commissioner outlined Mr Peter Julien’s position, which was based on the photograph of his mother which he believed had been produced by HMPO, as being demonstrative that there may have been an error in the registration of his mother’s details on the Home Office’s systems.[33]The Commissioner noted that the Home Office had informed him that it had conducted comprehensive searches across all relevant terms and systems, which included “reviewing both physical (paper) and digital records, legacy immigration systems, and all pertinent databases and information systems for immigration files or records of visa applications, entry clearance visas, refused applications and those related to Windrush claims. The Home Office confirmed that searches were performed using variations of the names and details provided by the complainant”.[34]The Commissioner also noted that the Home Office had consulted the Knowledge & Information Management Unit, UK Border Force and HMPO, checking for all archived, removed or destroyed files, but that no records matching Mr Peter Julien’s parents’ personal information were identified.[35]In conclusion, the Commissioner stated as follows:
“While the Commissioner recognises that the complainant believes further information should be held, the Commissioner accepts the Home Office’s explanation that proportionate and appropriate searches were undertaken and that, on the balance of probabilities, no information is held within the scope of the request at the time that the request was made. As such, the Commissioner has decided that the Home Office has complied with its obligations under section 1(1) of FOIA and that, on the balance of probabilities, it does not hold further recorded information falling within the scope of the request”
.

Grounds of appeal

[36]The Appeal was lodged by Mr Larry Julien (“the Appellant”) on 11 February 2026, albeit that the Grounds of Appeal have been drafted by Mr Peter Julien. In the Grounds, Mr Peter Julien states that he has authorised his son to participate in the proceedings as well due to Mr Peter Julien’s ill health.[37]The Grounds of Appeal, in summary, were: i. Relying on section 3(2)(b) of the FOIA, the Home Office is deemed to ‘hold’ information in the relevant sense for the purposes of the FOIA even when that information is physically held by a third party – here, the British Embassy in Grenada; ii. The Home Office failed to answer the questions raised by the Commissioner about whether recorded information relevant to the request was ever held, and about its potential retention or deletion. The Appellant stated that “it is therefore certified that these questions were unanswered or in any event if it were investigated properly with due scrutiny, would of later ‘sparked public uproar triggered by a conveyor belt of catastrophic failures’”; iii. The Home Office, by their own admission, had destroyed landing card slips recording the arrival of Windrush immigrants into the UK. The Commissioner had not investigated this matter to prevent it from happening again in the future; iv. The Appellant made reference to the ‘Windrush Lessons Learned Independent Review’ and also newspaper articles relating to the Windrush scandal. He stated that a full investigation into how the information came to be destroyed was needed as this fell within the ambit of data protection law principles which the Commissioner had vowed to protect; v. Neither the Home Office nor the Commissioner had explained how they had considered the public interest test as set out in section 2 of the FOIA.[38]The Appellant concluded his Grounds of Appeal as follows: “Taken collectively, notwithstanding the severity of these reports published publicly certifies a wider, systemic attempt to conceal such requested information. Therefore the ICO decision and the Home Office response to the information requested, is not exempt and were misapplied while the public interest test was improperly balanced leading to procedural unfairness”.[39]The Appellant sought the following outcomes: i. To allow the appeal and substitute a notice that orders the public authority to take steps in relation to the request for all information and disclose it; ii. Allow the appeal and apply the public interest test; iii. Aggregate Exemptions: Use a cumulative approach, weighing the combined public interest of multiple exemptions against the interest in disclosure.

The response of the Commissioner

[40]The Commissioner lodged his response to the appeal on 19 June 2026, resisting the appeal and relying on his findings and reasons as set out in the Decision Notice[41]The Commissioner noted that, when determining whether or not information is held, the applicable standard of proof is the civil standard of the balance of probabilities. The sole issue for the Tribunal to determine is therefore whether the Commissioner was correct in law to conclude that, on the balance of probabilities, the Home Office did not hold any recorded information within the scope of the Appellant’s request.[42]The Commissioner also noted that he was entitled to accept the word of the public authority and not to investigate further in circumstances where there was no evidence as to an inadequate search, any reluctance to carry out a proper search, or a motive to withhold information of which they were in possession (Oates v IC and Architects Registration Board EA/2011/0138).[43]The Commissioner summarised the Appellant’s Grounds of Appeal into five main points as follows: i. Ground One: The Appellant considered that the Home Office failed to conduct adequate searches in order to locate the requested information, and that the Home Office and Commissioner overlooked the fact that it in fact does hold the information on behalf of another authority; ii. Ground Two: The Appellant argued that the Home Office failed to consider alternative locations or third-party holdings and failed to investigate whether records existed but were lost or destroyed; iii. Ground Three: The Appellant raised the issue of the record keeping failures in the context of the ‘Windrush’ claims and used external evidence to argue that search results cannot be relied upon, thus demonstrating a structural flaw in the search process, not merely an isolated absence of records; iv. Ground Four: The Appellant raised a concern about the adequacy of the Commissioner’s investigations; v. Ground Five: The Appellant raised concern about the public interest test and that it was “improperly balanced leading to procedural unfairness”.[44]In relation to Ground One, the Commissioner maintained that the Home Office did conduct adequate searches and therefore the conclusion that it did not hold information within the scope of the request could not be undermined. The Commissioner accepted that the Appellant believes that further information should be held by the Home Office, but accepted the Home Office’s explanation that proportionate and appropriate searches were undertaken and that, on the balance of probabilities, no information was held within the scope of the request at the time that the request was made.[45]In relation to Ground Two, the Commissioner noted that the Home Office had advised the Appellant that, if registration had occurred locally in Grenada, the relevant records would be held by the British Embassy in Grenada rather than within central UK government systems.[46]The Commissioner submitted that Ground Three should be rejected because “the Appellant’s concern about whether the Home Office had previously destroyed information relating to his Request in respect of previous allegations of the destruction of landing card slips does not concern the Home Office’s compliance with Part 1 FOIA. Accordingly, it was not within the scope of the Commissioner’s section 50 investigation, and it is not a valid ground of appeal”.[47]In relation to Ground Four, the Commissioner asserted that the manner in which he conducted his investigation is beyond the Tribunal’s jurisdiction under section 58 of the FOIA. The Commissioner was entitled to accept the responses of a public authority at face value unless there was some reason why the Commissioner ought not do so.[48]In relation to Ground Five, the Commissioner did not accept the Appellant’s contention that the public interest test was improperly applied or that any procedural unfairness arose. The Decision Notice was issued on the basis of section 1(1)(a) of the FOIA and, where the conclusion reached is that information is not held, there is no requirement to apply or balance the public interest test. Where the central issue is whether information is held, not whether information should be disclosed, the Appellant’s arguments concerning the balance of competing public interest factors and the alleged failure by the Commissioner to exercise discretion, were not relevant to the issue under appeal.[49]In addition, the Commissioner did not accept that the absence of a public interest assessment amounted to procedural unfairness. The Appellant’s submissions relating to reports concerning historical record-keeping practices or alleged systemic failures did not establish that a public interest test was required in this case.[50]As such, the Commissioner maintained his conclusion that, on the balance of probabilities, the Home Office did not hold information within the scope of the request. He therefore invited the Tribunal to dismiss the appeal and uphold the Decision Notice.

The reply of the Appellant

[51]The Appellant lodged his reply on 02 July 2026, which is summarised as follows: i. The Appellant reiterated that neither the Home Office or the Commissioner had explained how they had considered the public interest test as set out in section 2 of the FOIA. The Commissioner had overlooked documents that were in the public domain that demonstrated that the Home Office had destroyed relevant records; ii. A public authority could not just perform a superficial search of records and declare that information did not exist – it must instead conduct a rigorous, comprehensive and well-designed search; iii. The Commissioner could not use the balance of probabilities standard as being the appropriate standard in this case for a number of reasons – firstly, if the Home Office was claiming an absolute exemption under the FOIA, the balance of probabilities test could not be used to weigh the public interest. Secondly, the First-tier Tribunal had previously ordered disclosure of the Windrush report which overrode the Commissioner’s “probability-based assessments”. Thirdly, the Commissioner had uncovered evidence of a criminal offence, namely the intentional destruction of the Windrush-related records, and therefore the case must be considered under the criminal justice framework and not the civil standard of proof. Finally, whilst the Commissioner was using the civil standard to decide if an organisation held missing documents, it could not use that standard to guess at the contents of a hidden or suppressed document; iv. The absence of a public interest assessment amounted to procedural unfairness in this specific case.[52]The Appellant stated:
“The issue is a point of law of significant public importance that the intersection of FOIA, the destruction of vital records constitutes and extends a greater systemic public law issue. The historical significance of both immigration and citizenship records for the appellants grandparents or any further descendants of the Windrush generation creates a massive public interest factor, meaning the respondent should have held the Home Office to a much higher standard of proof on any such reliance of its own decision notice as “not being held”
.

Oral submissions on behalf of the Appellant

[53]The Appellant made oral submissions during the hearing on 24 July 2026 as follows:a. His appeal centred around the fact that the FCDO had informed him that it was the Home Office who would be in possession of landing cards and passports. Even if the documents were held at the British Consulate in Grenada, they would still be ‘held’ by the Home Office for the purposes of the FOIA;b. The photograph that was submitted with the embossed lettering on it was proof that there was “some sort of registration” of his grandmother;c. The name of his grandmother on her birth certificate had been missing and was only added back in on 27 January 2025, which demonstrated that efforts had been made to remove any entitlement to his grandmother being a British subject;d. The Home Office had failed to search any microfilms or any databases in Grenada for the requested information, and had also overlooked the historical archives;e. The wider context of what had happened in relation to documents belonging to the Windrush generation was important to assist the Tribunal in understanding the broader implications of the loss or unlawful destruction of his information relating to his grandparents;f. Whilst the Appellant accepted the scope of the Tribunal’s ambit, he wished to emphasise that the Commissioner should have taken the wider public interest test in relation to disclosure of the documents into account, and should not continue to be misled by the Home Office going forward.[54]In response to questions, the Appellant stated that his grandparents had held professions that would have required them to travel a lot, with the inference being that they must therefore have held passports.

Witness evidence on behalf of the Appellant

[55]At the start of the hearing, the Appellant indicated that his witness, James Rupert Julien, was joining the hearing from the United States of America. Whilst the witness statement of James Rupert Julien had been included in the bundle, no application had been made for permission for the witness to testify from abroad in line with the First-tier Tribunal (General Regulatory Chamber) Presidential Guidance Note: Number 1 of 2025.[56]The Appellant confirmed that his witness resided in Los Angeles, USA, and that he would provide evidence in line with this witness statement to support the contention that the relevant information would have existed previously.[57]In line with the Presidential Guidance Note: Number 1 of 2025, it was confirmed via the FCDO website that the USA has consented to a voluntary witness in civil proceedings giving evidence from the USA without further consent or order being required. Having regard to the above Presidential Guidance Note and rule 2 of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, permission was granted to the Appellant to adduce oral evidence from a witness located abroad.[58]The witness James Rupert Julien joined the hearing using the approved CVP link. Although there were some technical difficulties to start, they were fully resolved by the time that he was called to give his evidence.[59]James Rupert Julien confirmed that the contents of his written statement, dated 05 June 2026, were true and accurate. He stated that he was unable to say for sure whether his parents (the Appellant’s grandparents) had ever lived in the UK. He stated that his parents often had to travel for work and that it would not have been possible for them to do so without being registered. He stated that, when he had tried to gather records for his mother for his own application for a visa for the USA, he had been unable to find them.

Legal Framework

[60]The relevant provisions of FOIA are as follows: s.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. …….[61]Sections 45 and 46 of FOIA direct the Secretary of State to issue Codes of Practice providing guidance to public authorities as to desirable practices in connection with the discharge of their functions under Part 1 of FOIA, and in connection with the keeping, management and destruction of their records.[62]Paragraph 1.12 of the Code of Practice issued pursuant to section 45 of FOIA states that: “Public authorities need to search for requested information in order to communicate to the applicant whether the information they are seeking is held or not held by that public authority. These searches should be conducted in a reasonable and intelligent way based on an understanding of how the public authority manages its records. Public authorities should concentrate their efforts on areas most likely to hold the requested information. If a reasonable search in the areas most likely to hold the requested information does not reveal the information sought, the public authority may consider that on the balance of probabilities the information is not held”.[63]Whether a public authority holds material is a question of fact to be determined on the balance of probabilities (Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072; 31 August 2007, as approved in Andrew Preston v the Information Commissioner and the Chief Constable of West Yorkshire Police [2022] UKUT 344 (AAC)). The First-tier Tribunal held that in determining a dispute as to whether information is ‘held’ that: “There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority's records. This is particularly the case with a large national organisation like the Environment Agency, whose records are inevitably spread across a number of departments in different locations. The Environment Agency properly conceded that it could not be certain that it holds no more information. However, it argued (and was supported in the argument by the Information Commissioner) that the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof and clearly applies to Appeals before this Tribunal in which the Information Commissioner's findings of fact are reviewed. We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed”.[64]The Upper Tribunal in Andrew Preston v the Information Commissioner and the Chief Constable of West Yorkshire Police also noted that, importantly, in Councillor Jeremy Clyne v the Information Commissioner and London Borough of Lambeth (EA/2011/0190) the Tribunal held that the “issue for the Tribunal is not what should have been recorded and retained but what was recorded and retained”.[65]In Garrard v IC and the Home Office (EA/2009/0107), the First-tier Tribunal noted that: “Where the critical issue is whether information is held, it is incumbent on the IC to analyse very carefully the searches the public authority report that they have undertaken…..It is only where no such issues arise that the IC should rely upon the assertion of the public authority that the search taken was adequate”.[66]In Oates v IC and Architects Registration Board (EA/2011/0138) the First-tier Tribunal held that:
“As a general principle, the IC was, in the Tribunal’s view, entitled to accept the word of the public authority and not to investigate further in circumstances where there was no evidence as to an inadequate search, any reluctance to carry out a proper search or as to a motive to withhold information actually in its possession. Were this to be otherwise the IC, with its limited resources and its national remit, would be required to carry out a full scale investigation, possibly onsite, in every case in which a public authority is simply not believed by a requester”
.

The role of the Tribunal

[67]The Tribunal’s remit is governed by section 58 of FOIA. This requires the Tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved an exercise of his discretion, whether he ought to have exercised it differently. The Tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

Issue

[68]The issue for the Tribunal to determine is whether the Commissioner was correct in holding, on the balance of probabilities, that the Home Office did not hold any relevant information within the scope of the request at the time that the request was made.

Evidence

[69]We read and took account of an open bundle containing 248 pages including indexes. We have viewed a video file submitted on behalf of the Appellant titled “Why was the Windrush Home Office report suppressed for so long?”. As outlined above, we also heard oral submissions on behalf of the Appellant and witness evidence from James Rupert Julien, both of which we have taken into account.

Discussions and conclusions

[70]As outlined above, the sole substantive issue for the Tribunal to determine is whether the Commissioner was correct in finding that it was more likely than not that the Home Office did not hold any further relevant information within the scope of the request at the time that the request was made.[71]In assessing this question, we have had regard to paragraph 1.12 of the Code of Practice issued pursuant to section 45 of FOIA which, whilst not binding, is instructive of the approach that a public authority may follow when conducting a search, namely:a. The search should be conducted in a reasonable and intelligent way;b. The search should concentrate on areas most likely to hold the requested information; andc. If a reasonable search in the areas most likely to hold the requested information does not reveal the information sought, the public authority may consider that, on the balance of probabilities, the information is not held.[72]The Appellant submitted that the Home Office should have held the requested information on the basis that he was informed by the FCDO that the Home Office were the lead government department for passports and landing cards. Whilst the Home Office is indeed the lead department, it does not follow that they therefore must hold the requested records in this particular case.[73]The Appellant did not assert that the Home Office’s searches had been inadequate or that incorrect search terms were used. Whilst he did assert that the Home Office should have searched microfilms, we are not satisfied that such unsearched microfilms exist and we note that a full search across all UKVI databases took place, including both digital and paper records. Whilst the Appellant stated that the Home Office did not search The National Archives, there was no obligation on them to do so as the Home Office would not “hold” information stored in The National Archives for the purposes of the FOIA.[74]The Appellant rightly recognised that wider questions about the destruction of documents held by the Home Office was outside the scope of the Tribunal’s ambit. However, he did submit that, as a result of the wider issues of public importance regarding the Windrush generation, the Commissioner should have applied the public interest balancing test in determining the appeal. We do not agree with this assertion – where a conclusion has been reached that relevant information is not held, the legislation does not require there to then be an assessment of the public interest test. Indeed, it would be illogical to do so, as there cannot be a meaningful assessment as to whether certain information should be disclosed or is exempt in circumstances where the information is deemed not to be held.[75]Similarly, the Appellant also submitted that, given the public importance of the issues raised, the standard of proof applied by the Commissioner in determining whether the requested information was held by the Home Office should be higher than the balance of probabilities. We do not accept this submission either – the authorities outlined at paragraph 63 above clearly indicate that the appropriate standard of proof is the civil standard.[76]The Appellant is not asserting that the Home Office have deliberately destroyed documents as a result of his request. We do not find any basis to conclude that the Home Office has deliberately destroyed documents as an alternative to providing them to the Appellant, or that they are in some other way trying to frustrate the request.[77]On the basis of the information provided by the Home Office, the Tribunal is satisfied that the searches were conducted in a reasonable and intelligent way, and that they concentrated on the areas which were deemed most likely to hold the requested information.[78]We note that much of the Appellant’s submissions focused on information that he stated that the Home Office “must” have held based on, for example, the evidence that his grandparents would travel overseas and must therefore have had travel documents and on the photograph with the embossed writing on it. Whilst we understand the rationale behind the Appellant’s submissions, we have reminded ourselves that our focus must be on whether the Home Office did hold any additional material, not whether they may or should have held any additional material.[79]The Tribunal is satisfied that the Commissioner was correct to conclude, on the balance of probabilities, that the Home Office did not hold further information that would fall within the scope of the request at the relevant time.[80]Nothing in this judgement should be taken as a suggestion that we do not recognise the importance of this request to the Appellant. We have taken a careful note of the potential impact on the Appellant and his wider family of the absence of the requested documents. However, our ambit is limited to a consideration of the decision that was made by the Commissioner, not wider issues.

Conclusion

[81]The Tribunal dismisses the appeal for the reasons given above.