Complaint about the Immigration and Nationality Directorate (now the UK Border Agency) of the Home Office
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Remedy for unreasonable delays and mishandling of an asylum application
Background to the complaint
Ms A and her sister entered the UK in August 1998 and applied for asylum. They attended separate initial asylum interviews at the Immigration and Nationality Directorate (IND) in October. In July 2000 IND noted that Ms A’s address had changed, but on 17 August they sent a statement of evidence form to her former address, to be completed and returned by 31 August. (IND sent a statement of evidence form to Ms A’s sister at her correct address on the same day.) In September Ms A’s representatives sent IND the completed statement of evidence form, which they said Ms A had received after the 31 August deadline. IND did not link the form to the file.
On 11 September 2000 IND refused Ms A asylum on the grounds that she had not returned the statement of evidence form by the deadline. On 19 September they issued the refusal letter and an appeal form. Ms A’s representatives asked IND to reconsider their decision because the statement of evidence form had been sent to the incorrect address. They enclosed an appeal form (which IND received on 25 September). In January 2001 IND acknowledged they had sent the statement of evidence form to the wrong address. They notified Ms A that their decision of 11 September 2000 was withdrawn, and invited her to withdraw her appeal, which she did. IND received the withdrawal form on 12 February, but did not update their systems to show that the appeal had been withdrawn.
(Meanwhile, in November 2000 IND had conducted an asylum interview with Ms A’s sister. They refused her asylum claim in January 2001. Her subsequent appeal was heard in December 2001 and allowed in January 2002 – on human rights and asylum grounds. In February 2002 IND granted her indefinite leave to remain in the UK as a refugee.)
IND interviewed Ms A in July 2001 and refused her asylum application on 2 August. The file should then have been sent to an enforcement location to serve refusal, enforcement and appeal papers, but it was placed in a holding location instead. There is no record of any substantive action on Ms A’s case between August 2001 and May 2003 when IND’s Appeals Processing Centre called for her file. It appears that the previous appeal was considered to be ‘reinstated’ even though the decision and the appeal had been withdrawn. In August 2003 Ms A’s Member of the European Parliament wrote to IND about the time taken to process her asylum application. IND did not respond.
Despite the fact that IND had not yet served the formal notice of the refusal of Ms A’s asylum application, in January 2004 they served her with notice of a decision to issue removal directions against her. In February a local councillor asked IND for an update on Ms A’s case, but again they did not respond. In June IND sent a bundle of appeal papers to a firm of solicitors with no involvement in Ms A’s case. The substantive hearing of Ms A’s appeal took place in August, when the Independent Adjudicator dismissed the appeal on asylum and human rights grounds. Ms A was granted permission to appeal. The appeal was heard in March 2005, and remitted for another hearing in June. In July her appeal was allowed by an immigration judge on asylum and human rights grounds. On 18 July IND decided not to challenge the decision.
From 30 August 2005 a new policy was introduced (under the Government’s Five Year Strategy for Asylum and Immigration) whereby people recognised as refugees would initially be granted a period of five years’ limited leave to enter or remain in the UK. On 23 September IND asked Ms A to provide passport photographs and to confirm various details. They received a prompt response and on 4 October they issued a status document granting Ms A leave to remain in the UK for five years, in line with the new policy.
In December 2005 Ms A’s MP wrote to ask the Minister why Ms A had only been granted five years’ leave, when her sister had been granted indefinite leave. The Parliamentary Under Secretary replied, apologising for the delay hearing Ms A’s appeal and explaining that the sisters’ asylum claims had been decided separately and assessed on the basis of information submitted in each case. He explained that Ms A could only be granted five years’ leave, in accordance with the asylum policy effective from 30 August 2005, but could apply for further leave a month before her current leave was due to expire.
What we investigated
Ms A complained to the Ombudsman in April 2006 that she had applied for asylum at the same time as her sister, but that as her sister’s case had not been subjected to the same delays, she (her sister) had been granted indefinite leave to remain. Ms A said that IND had treated her unfairly and that their mistakes had put her in a worse position than her sister.
We investigated whether IND had delayed deciding Ms A’s asylum application, and whether the time taken to process her successful appeal and grant her leave to remain was maladministrative (as this spanned the critical period when the policy changed).
What our investigation found
IND sent the statement of evidence form to an incorrect address and delayed attaching it to Ms A’s file, which resulted in an incorrect refusal decision. They failed to issue an asylum refusal decision, with associated enforcement and appeal papers, following the refusal decision of 2 August 2001; processed an appeal which had been withdrawn because of a failure to update their systems; dispatched appeal papers to an incorrect representative; and did not reply to correspondence. IND also served a removal notice on Ms A when they had not yet served a decision relating to the application. Taken together these errors amounted to a serious failure on IND’s part to get it right or to be customer focused, two of the Principles of Good Administration. That was maladministrative.
We did not uphold Ms A’s complaint that IND had unreasonably delayed implementing the appeal decision. They knew the appeal outcome by 18 July 2005 and took 49 working days to ask for the information needed to prepare the leave to remain document. Although IND took longer than the average time taken to request the information (and longer than would be good administration), we did not regard the time taken as being so excessive as to be maladministrative.
The injustice to Ms A flowing from IND’s maladministration was that she suffered uncertainty and anxiety, and would have been granted asylum significantly earlier than she was, and granted indefinite (rather than limited) leave to remain. IND contended that the time taken to deal with Ms A’s application was not unusual and that there was no guarantee of a successful appeal even if they had dealt with the application sooner. While we recognised that, over the period in question, IND had difficulty dealing with the number of asylum cases they received, the fact was that Ms A’s sister’s application took three and a half years to determine, while Ms A’s application took over seven years. Ms A’s appeal was ultimately successful; we saw no persuasive evidence to suggest that an earlier and more straightforward sequence of events would have led to a different outcome.
We concluded our investigation in April 2008 and partly upheld Ms A’s complaint.
Outcome
To remedy the injustice to Ms A, IND agreed to:
- apologise to her for the way they had handled her case and make a payment of £250 to recognise the inconvenience she suffered;
- grant her indefinite leave to remain in the UK; and
- reimburse the difference between the fees for making an application for citizenship in 2004 (which is when Ms A would have been able to apply) and the current fees (provided Ms A applied within a year of being granted indefinite leave to remain).
Commenting on a draft of the Ombudsman’s report, Ms A said ‘let me take this opportunity to express my heartfelt thanks for your thorough investigation of my complaint. … I look forward to the successful completion of this matter and start[ing] a new chapter in my life’.
Principles of Good Administration
The following Principles of Good Administration were referred to in this case summary:
- ‘Getting it right’ (acting in accordance with the public body’s policy and guidance; and taking proper account of established good practice).
- ‘Being customer focused’ (dealing with people helpfully, promptly and sensitively).
