AAA & Ors. (R on the application of) v Secretary of State for the Home Department

Public interest immunity requires a case-specific balancing exercise. The court, rather than the minister, is the ultimate decision-maker. It must assess the risk of serious harm from disclosure, the importance of the material to the fair resolution of the proceedings, and whether measures such as redaction, a gist or a confidentiality ring can adequately protect the public interest. Material already in the public domain ordinarily provides little basis for withholding disclosure unless the extract adds something harmful. The court should examine each document or extract separately. Disclosure may be refused where material has little evidential significance and presents a real risk of serious harm to international relations, but relevant information should be disclosed where the interests of the administration of justice outweigh that risk.

The Secretary of State sought public interest immunity for ten redacted extracts from comments on a Home Office Country Policy Information Notice concerning Rwanda and from an accompanying email. The material arose in judicial review claims challenging arrangements under which asylum-seekers might be removed to Rwanda and their asylum claims determined there.

The court considered whether disclosure created a real risk of serious harm to the public interest, whether that harm outweighed the public interest in the fair administration of justice, and whether disclosure could be managed by redaction, a gist, or a confidentiality ring.

1. Application granted in part. Public interest immunity was granted for items 1, 2, 4 and 8, and for specified words in items 3, 6, 7 and 9 and the second sentence of item 5. Disclosure was ordered for the remaining material in items 3, 5, 6, 7, 9 and 10.
2. The court was the ultimate decision-maker on public interest immunity. It accepted that disclosure of the extracts could cause a real risk of serious harm to the United Kingdom’s international relations, particularly with Rwanda, and could undermine the development and operation of a lawful Rwanda removal policy.
3. The court balanced that harm against the public interest in the administration of justice. It considered the seriousness of the claims, the relevance and evidential significance of each extract, the importance of the public interest relied upon, the nature and degree of risk, and the fact that the litigation challenged a major government policy.
4. Information already in the public domain generally could not justify withholding disclosure unless the extract added materially harmful information. Specific comments concerning the treatment of individuals were evidentially significant and were ordered to be disclosed where their substance was already public. Generalised comments, or material adding little or no evidential value, remained protected where disclosure would harm international relations.
5. Redaction was appropriate for discrete words which went beyond the public domain, lacked evidential significance and created serious additional harm. A gist or summary would not assist in practice. A confidentiality ring was neither appropriate nor proportionate, given the likely number of persons involved and the risk of inadvertent disclosure.

The judgment determined an application arising in pending judicial review claims. The substantive claims had been listed for hearing on 5 September 2022, following case-management directions made by Swift J.