Mr H's application as the spouse of a UK citizen
Jump to
Background to the complaint
Mr H, a Jamaican, arrived in the UK in 1998 and was granted leave to enter as a visitor until February 1999. A passport stamp appeared to show a further grant of leave until February 2000, and shortly before the expiry of that leave Mr H applied for leave to remain on the basis of his marriage to Ms Q. In July 2000 the UK Border Agency (the Agency) decided to grant Mr H leave to remain until July 2001, but before the decision papers could be dispatched, they discovered that the passport stamp was forged.
In January 2001 a warrant was issued for Mr H’s arrest as he had absconded from bail on drugs charges. In August a specialist unit confirmed that the passport stamp was counterfeit and returned the file. It is unclear what happened next, but the Agency deemed the file lost in February 2003. In May Mr H’s representatives asked the Agency for an update on his leave application. The Agency replied that they would be notified once a decision had been made (this was at the time when the file was deemed lost).
Although Mr H had separated from Ms Q in May 2003 and had begun a relationship with a new partner – Ms U – that August, in June 2004 Mr H and Ms Q jointly asked the Agency about the progress of the application Mr H had made on the basis of their marriage.
Mr H’s Member of Parliament wrote to the Agency on his behalf in May 2006. In reply, the Agency said that an initial consideration of Mr H’s application had been carried out but they needed more information from him. Mr H was arrested in February 2007, admitted to prison, and released pending trial. In August Mr H’s representatives formally complained to the Agency about the delay over his application, but received no substantive response. In their response to a query from the Member, the Agency said (among other things) that they had granted Mr H leave to remain until July 2001 and had sent the decision papers to his solicitors (that was not the case).
The Member contacted the Agency again in April 2008 raising concerns about their handling of Mr H’s case, which the Agency then promised to investigate. The Member asked for an update in September. Meanwhile, in May Mr H applied for leave to remain on the basis of his marriage to his new wife, Ms U. In November Mr H was found guilty of the drugs offence and readmitted to prison. In line with procedures, the Agency took no action on Mr H’s application pending the outcome of his appeal against his prison sentence (which was successful). Mr H was freed in March 2009 and the Agency finally determined his application in July. He was refused leave to remain.
What our investigation found
Although Mr H’s complaint was that the Agency had not told him about their July 2000 decision, that decision was never issued and so had no effect. The Agency’s subsequent actions and communications, however, were based on the assumption that it had been issued. The Agency’s handling of Mr H’s application, after deciding that the passport stamp was counterfeit, was poor. Although the leave decision was not implemented, it should have been made clear on the file that the decision had not been issued. It then took over a year to confirm that the stamp was forged. Thereafter, the Agency lost Mr H’s file, and took no substantive action until early 2005. Between June 2002 and July 2008 the Agency had many chances to review Mr H’s case, as he and his representatives sought updates on his application. But the Agency did not reply to a number of letters, or to the formal complaint.
Having failed to ‘get it right’ and having missed many opportunities to ‘put things right’, the Agency failed to be ‘open and accountable’ by not telling Mr H, his representatives or the Member that the 2000 application had not been granted. Nor did they raise their concerns about the passport stamp. In addition, the Agency gave the Member inconsistent and inaccurate information; there was no evidence of their promised investigation; and they said Mr H’s application was receiving attention when the file was lost. We did not, however, hold the Agency responsible for any delay between Mr H’s imprisonment and his release.
As for Mr H’s complaint that the Agency had not returned his passport, the evidence suggested that he returned it together with other documents to the Agency in April 2005. They were unable to find it and the most likely explanation is that they lost it.
To conclude, the Agency’s actions fell so far short of the standards of good administration that the Ombudsman expects of public bodies that they amounted to maladministration.
The injustice to Mr H
The Agency put Mr H to unnecessary time and trouble in him pursuing matters. We could not safely conclude, though, that his application would have succeeded if the Agency had dealt with it properly and promptly, even without the counterfeit stamp. In fact, Mr H may have had the benefit of living in the UK for eight years when not eligible to do so. Similarly, had the Agency acted when Mr H and Ms Q chased up his application, they would probably have refused him leave as the relationship on which the application was based was not subsisting.
How we resolved the complaint
We partly upheld Mr H’s complaint. The Agency offered him £100 for not responding to correspondence and a further £50 for giving incorrect information to the Member. They also refunded the £395 fee he paid for his 2008 application, and gave his representatives a detailed account of events. The Agency also explained the loss of the passport to the Jamaican High Commission, and agreed to our recommendation that a senior officer send Mr H a written apology for their handling of his application.
