Mr J's application for indefinite leave to remain
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Background to the complaint
Mr J, an Afghanistan national, arrived in the UK in 2001 and claimed asylum. The UK Border Agency (the Agency) refused him asylum in February 2002 but decided to grant him four years’ exceptional leave to remain. The Agency did not, however, send their decision to Mr J. Between May 2002 and February 2003 his solicitors wrote to the Agency five times seeking an update on his case. Having received no response, the solicitors approached Mr J’s Member of Parliament, who then wrote to the Agency. The Agency retrieved Mr J’s file from storage and in April they reviewed their February 2002 decision. They concluded that, although their decision to refuse asylum had been correct, because exceptional leave had since been superseded by discretionary leave Mr J should be granted discretionary leave. (Before 1 April 2003, when the Agency refused asylum but considered it inappropriate to remove the applicant from the UK, they generally awarded four years’ exceptional leave. Their policy from 1 April 2003 was to award discretionary leave, usually for three years. Applicants can then apply to extend their discretionary leave by three more years, and may only apply for indefinite leave having completed six years’ discretionary leave.) The Agency decided to grant Mr J discretionary leave until February 2006 (when his exceptional leave would have expired had the Agency served their initial decision), and prepared a letter informing him of their decision. Again, this was not served on him.
In January 2006 Mr J applied for indefinite leave and submitted his passport. The Agency acknowledged receipt and told him that: ‘Currently applications of this type are taking an average of eight months from the date of receipt’. In February Mr J’s case was sent to the Agency’s Managed Migration Directorate. The caseworker noted that Mr J had been refused asylum and granted three years’ discretionary leave until February 2006. He wrote on the file that he could not deal with the case as his team dealt only with indefinite leave cases, where the applicant had completed four years’ discretionary leave. Mr J’s file was consequently sent to the ‘legacy’ casework team. (The Agency said this action was taken in the ‘mistaken belief’ that a decision needed to be made on whether to grant further discretionary leave.)
No further action was taken until February 2007, when the Member wrote to ask the Agency when Mr J could expect a decision on his application for indefinite leave. The letter prompted the Agency to look again at Mr J’s case and in March a caseworker noted there was a ‘misconception’ that he had been granted three years’ leave rather than four. The relevant Minister’s reply to the Member said that due to high volumes of work, the Agency were unable to say when Mr J’s application would be processed. The Agency also wrote to tell Mr J that his case fell into the ‘legacy’ category of cases that they hoped to deal with within five years or less, but that they could not say when his case would be processed.
In May 2007 Mr J’s mother was admitted to hospital in Pakistan. The following month the Member wrote to ask the Agency to expedite Mr J’s case so that he could visit his mother. The Minister replied saying that the Agency were unable to prioritise Mr J’s case because of the volume of similar cases. Mr J was free to leave the UK whenever he wanted, although if he did, his application would be deemed to have been withdrawn. In November Mr J’s solicitors wrote to ask the Agency for a timescale for reaching a decision on the case. The Agency placed this letter on Mr J’s file but did not acknowledge or answer it.
Following the referral of Mr J’s complaint to us, the Agency reviewed his case and in April 2008 they decided to grant him indefinite leave to remain.
What our investigation found
The Agency’s failure, twice, to serve their decision of February 2002 meant that by the time they started action to serve the decision for a third time their policy had changed. Their decision at that stage, to grant Mr J three years’ discretionary leave, put him back in the position that he would have been in but for their errors, but unfortunately meant that his subsequent indefinite leave application appeared more complex than it might otherwise have done.
The Agency initially processed Mr J’s indefinite leave application quickly, but then confusion about how much discretionary leave he had previously been awarded led the Managed Migration Directorate to believe that they could not deal with it. The Agency were unable to say if Mr J’s case would have been dealt with any sooner had it been considered correctly by that Directorate. But the fact remains that the Agency looked at Mr J’s application in February 2006 and we saw no reason to believe that they could not have reached a decision on the case at that stage, had they considered it to be a ‘standard’ application for indefinite leave following four years’ exceptional leave.
When the Member brought the case to the Agency’s attention in February 2007, they did not take the opportunity to resolve matters. Although a caseworker realised what had gone wrong, no steps were taken to put things right until this Office became involved. That was an unsatisfactory delay, especially as the Agency had told Mr J that applications were taking an average of eight months to complete. To manage his expectations fairly, the Agency should have told Mr J – as soon as they realised it – that his indefinite leave application could not be determined on initial consideration or, at least, before the eight-month period had expired.
In summary, the Agency’s confusion and delay in dealing with Mr J’s application, together with their failure to manage his expectations and to respond to correspondence, amounted to maladministration.
The injustice to Mr J
The poor handling of Mr J’s case would have led to worry and anxiety for him. The delay in considering his indefinite leave application coincided with a time when his mother was seriously ill in Pakistan and, without his passport, Mr J was unable to visit her. The Agency’s failure to answer correspondence exacerbated his frustration and anxiety.
How we resolved the complaint
We upheld Mr J’s complaint. The Agency addressed their failures by making a decision to grant him indefinite leave to remain. They also apologised to him and made a consolatory payment of £200.
