Cinneadh
Mr. D & The Department of Justice, Home Affairs and Migration
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-200098-A0A0H1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-200098-A0A0H1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to records, under section 15(1)(a) of the Act, on the basis that relevant records do not exist or could not be found after it had taken all reasonable steps to identify and ascertain their whereabouts
26 May 2026
On 10 December 2025, the applicant made a request to the Department for copies of policy documents, internal guidance, operational instructions, briefing notes, training materials, standard customer-facing responses, and any related high-level internal correspondence (for example, emails or memoranda at Assistant Principal level or above) that relate to:
The immigration status and rights (including the right to work) of non-EEA nationals who submit an in-time application to extend their permission and are awaiting a decision, and the treatment of such persons when their printed IRP card has expired while that application is under consideration;
Any written guidance, standard operating procedures, desk instructions or circulars issued to registration offices, Domestic Residence and Permissions staff, Front of House/Customer Service, and Compliance Units on how to treat persons whose permissions have expired while an in-time application is pending. Specifically referencing:
online applications for Extension of Student Permission; and/or
international concepts such as “maintained status” (Canada) or “Section 3C leave” (United Kingdom); and
Any records discussing:
Employer queries regarding right-to-work verification for applicants with pending immigration applications.
Compliance risks relating to the delayed processing of renewals or extensions.
Employment termination or withdrawal of job offers linked to uncertainty while applications are under consideration.
The applicant sought records created or in force between 1 January 2022 and the date of his request.
On the same day, the Department wrote to the applicant, referencing section 12(1)(b) of the Act, and informing him that his request did not provide sufficient information for the Department to determine to which area of Immigration Service Delivery (ISD) the request should be assigned. The applicant replied on the same day to clarify that he was particularly referring to online Applications for Extension of Student Permission made through the ISD online portal and any related in‑time renewal or extension applications where a person’s existing permission is due to expire or has recently expired while the application is under consideration. The applicant said that he understood that these matters fell within Unit C – Domestic Residence and Permissions Division of ISD.
On 13 January 2026, the applicant requested an internal review on the basis that the Department had not issued a decision within the statutory timeframe.
On 20 January, the Department issued its internal review decision, refusing the applicant’s request under section 15(1)(a) of the Act. In its decision, the Department said that it had searched its eDocs system using the keywords “student operational instructions ”, “student guidance ”, and “IRP card expired ”. The Department said that the only records found were canned/standard responses and that it was satisfied that there were no relevant records within the Domestic Residence Division. The Department provided some publicly available information which it said might be of use to the applicant.
On 21 January, the applicant applied to this Office for a review of the Department’s internal review decision. In his application, among other things, the applicant maintained that the Department’s searches were inadequate, and he said that the existence of publicly available information implies the existence of internal records underpinning such notices.
I have now completed my review in accordance with section 22(2) of the FOI Act. During the course of this review, the Investigating Officer requested submissions from the Department. While I do not intend to repeat these submissions or those of the applicant in full here, I can confirm that I have had regard to both for the purposes of this review. I have decided to conclude this review by way of a formal, binding decision.
The Department has refused the applicant’s request under section 15(1)(a) of the Act. As such, this review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to records on the basis that no relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office, the Department said that, following the applicant’s clarification of 11 December 2025, it assigned this request to its Domestic Residence and Permissions (DRP) Division. The Department said that this was because the applicant had indicated that he was seeking records relating to Extension of Student Conditions applications, which are under the remit of that division.
The Department said that, were relevant records to exist, they would be electronic records. The Department further explained that, prior to the introduction of eDocs in 2021, Lotus Notes had been the Department’s electronic storage system but that, given the timeframe of the request and the date since which eDocs has been active within the Department, any relevant records would have been saved on eDocs. The Department explained that other systems were therefore not searched.
The Department defended the search terms it had originally used. It said that it had interpreted the request as relating to an applicant’s right to work when their permission has expired and when they are awaiting a decision on an application, and queries from applicants regarding same. The Department said that, as the applicant had clarified that the records sought referred to online applications for an extension of student permissions made through the online ISD portal, the search terms it had used related specifically to students, operational guidelines, and expired permissions, from 1 January 2022 to 10 December 2025.
According to the Department, on 7 May 2026, further searches were carried out on the shared mailboxes within the DRP team as well as the inboxes of the Assistant Principal Officer and Principal Officer with responsibility for the subject matter. The Department said that search terms used included “student policy ”, “student guidelines ”, “student instructions ”, “standard responses ”, “permission expired ” and “working rights / right to work ”. According to the Department, these searches resulted in no records being found.
The Department said that it considers that the requested records do not exist and that they never existed, i.e. were never created or received. The Department explained that applicants receiving an approval for an Extension of Student Conditions (ESTC) between 2022 and 2025 were notified in their grant letters of the following conditions:
“You have been granted temporary permission to remain on the basis of the conditions which attach to the grant of Stamp 2, student conditions. You may work for up to 20 hours per week during term time and up to 40 hours per week during holiday periods. The entitlement to take up employment ceases upon the expiry of your temporary permission.”
The Department said that its position is, therefore, that no further records exist within the given timeframe as applicants would have been aware of this condition.
The Department addressed the matter of the “canned responses ” it had referenced in its internal review decision. It explained that these are the standard responses that the DRP Division had developed to respond to queries from applicants. The Department said that it believed these to be outside the scope of the applicant’s request as they do not specifically relate to the records requested by him but rather provide an overview of the purpose of the 2017 Revised Third Level Graduate Programme. The Department said that it would nevertheless be happy to release this record to the applicant.
The Department concluded that, following the initial searches, and the subsequent searches conducted during the course of this Office’s review, no records were created between 2022 and 2025, apart from the aforementioned standard responses which the Department is prepared to release to the applicant, although it considers them to be outside the scope of his request. The Department said that its position is therefore that the requested records do not exist and that its DRP Division team is satisfied of same after searches it carried out returned no results.
In his application to this Office, the applicant said that he considered that the Department’s searches were inadequate because it had used limited keywords within a limited system. He also said that, while he acknowledged that decisions in respect of immigration permission renewals and extensions are made by the DRP Division, the subject matter of his request would reasonably be expected to give rise to records held across other functional areas. He further contended that the records requested should reasonably include various categories of documents, including policy guidance, operational instructions and legal interpretations. The applicant also maintained that the Department’s reference to publicly available information does not negate the existence of records but rather implies the existence of internal records underpinning these notices. Finally, the applicant said that the Department’s response to his request was internally inconsistent insofar as it asserted that no records exist while simultaneously providing substantive statements regarding lawful residence and work rights during pending applications. He concluded that this inconsistency, as he called it, suggests either that relevant records do exist but were not identified or that operational rules are being applied without documented guidance.
As outlined above, the Department explained that it searched for relevant records on two separate systems, eDocs and email accounts. The Department said that during the course of this review, it searched shared DRP and specific staff mailboxes using a number of relevant key phrases. However, the Department did not say that it had made further searches of its eDocs system other than those described at internal review stage. According to the internal review decision, three key phrases were used in these eDocs searches; “student operational instructions”, “student guidance”, and “IRP card expired”. In its submissions to this Office, the Department said that it had chosen these search terms because the applicant had clarified that the records sought referred to online applications for an extension of student permissions made through the online ISD portal. The Department also said that it had interpreted the request as relating to an applicant’s right to work when their permission has expired and when they are awaiting a decision on an application, and queries from applicants regarding same.
I am satisfied that the scope of the applicant’s request is broader than the Department’s stated interpretation of it as this interpretation seems to focus exclusively on employment rights, whereas the applicant also requested records concerning general immigration rights and status. Furthermore, the Department’s interpretation refers to queries from applicants regarding this right to work, whereas the applicant asked for records discussing employer queries regarding right-to-work verification and also mentioned employment termination or job offer withdrawals. Additionally, the Department’s understanding does not seem to account for the applicant’s request for records regarding compliance risks related to delayed processing. Finally, in my view, the three key phrases used by the Department to search for records on eDocs do not sufficiently reflect the breadth of the applicant’s request and, as such, cannot be reasonably expected to locate all records coming within its scope. Given that the Department has identified eDocs as its sole electronic storage system, I am therefore of the mind that the Department’s searches were insufficient in the circumstances.
Accordingly, having regard to the information before this Office, I simply cannot find that the Department has taken all reasonable steps to locate further records sought by the applicant. In the circumstances, I find that the Department was not justified in refusing access to further records, under section 15(1)(a) of the FOI Act, on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I find that the Department was not justified in refusing access under section 15(1)(a) of the FOI Act to further relevant records coming within the scope of the applicant’s request and I direct it to make a fresh decision on the applicant’s FOI request.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
______________
Mary Connery
Investigator