Mr W's application for asylum
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Background to the complaint
In December 2000 the British Embassy in Tunis refused Mr W (an Algerian national) entry clearance to the UK as a spouse of a UK citizen. He appealed against this decision. Mr W returned to the UK in October 2001: he was refused leave to enter and claimed asylum. He started receiving National Asylum Support Service (NASS) support. In March 2002 the UK Border Agency (the Agency) refused Mr W’s asylum claim and granted him exceptional leave to enter for one year. However, a decision letter was prepared but not sent to Mr W and so did not take effect.
Responding to a query from Mr W’s Member of Parliament about Mr W’s case (his appeal had not been heard and his leave had expired) the Agency said, in July 2003, that they expected to forward the appeal papers to the Immigration Appellate Authority within 12 weeks, and that Mr W’s asylum claim would be considered once the appeal had been resolved. The Agency did not, however, forward the appeal papers as they had said. In November 2004 the Agency faxed the British Embassy in Algeria (this was the wrong Embassy) for a copy of Mr W’s appeal papers because the originals were missing. They were held on a second file which had been incorrectly put into storage. The Agency have no record of a reply to this fax and took no further action on Mr W’s appeal.
In October 2006 Mr W asked the Agency to grant him leave to remain in the UK under the ‘seven-year concession’. (The Agency will not normally pursue enforcement action against the family as a whole where the children were born in the UK and have lived here continuously until the age of seven years.) In December the Agency invited Mr W to an appointment about replacing his Application Registration Card, which he had lost. Following the appointment, the Agency refused a replacement Application Registration Card and stopped Mr W’s NASS support. (The Agency think that the officer took this decision without spotting an entry on the computer system, which cast doubt on whether the decision to grant Mr W leave had been served.)
In January 2007 Mr W learnt that the award of exceptional leave to remain had not been served in 2002, and complained to the Agency that this had deprived him of the chance to apply for indefinite leave to remain. Mr W did not receive a substantive response. He then wrote to the Home Secretary. In reply, he was told that his case was part of a backlog, but the Home Secretary could give no indication of when his case would be processed. The letter also enclosed a leaflet of help and advice on returning home voluntarily.
Mr W wrote again to the Home Secretary and complained again to the Agency about the poor service he had received, the loss of NASS support, the failure to receive his exceptional leave to remain and the lack of a response to his previous representations. He did not receive a substantive response. In May Mr W complained for a third time to the Agency and requested the urgent issue of his leave to remain. In April the Agency noted that Mr W appeared to qualify under the seven-year concession. The Agency said that they gave his case urgent consideration, but did not prioritise his case over others because there was, they said, no evidence on the file that he had no financial support. (This is incorrect. Many of Mr W’s letters to the Agency either mentioned that his NASS support had been withdrawn or referred to financial problems.) In August the Agency told Mr W that they had decided to grant him indefinite leave to remain under the seven-year concession. They issued his status papers in September.
What our investigation found
The Agency failed to tell Mr W of their decision to grant him exceptional leave to remain, apparently deciding that the appeal took precedence. If there were good reasons for that decision, then the appeal should have been progressed. But it was not. It is unclear what the Agency’s correct action should have been, but doing neither was maladministration.
The Agency’s handling of Mr W’s appeal was a catalogue of errors. They did not forward the papers to the Immigration Appellate Authority and nothing happened between January 2001 and March 2002. When the Agency finally began to consider the appeal, the papers had been mislaid and they attempted to retrieve the papers from the wrong Embassy. The Agency took no further action and the appeal was never heard. This series of further errors amounts to maladministration.
We found that the Agency should have replaced Mr W’s Application Registration Card and they were wrong to have stopped his NASS support: the officer should have taken all relevant matters into account before making a decision – such as the entry about whether the leave decision had been served. The failure to pick up this fact was particularly poor, given that Mr W apparently said at the interview – and we had no reason to doubt him – that he had never been given a decision on his asylum application. It was true and his financial support depended on it. These failings also amount to maladministration.
Finally, once the Agency became aware of their error in removing Mr W’s NASS support, they should have acted quickly to resolve his case. Mr W told them of his predicament and asked for urgent action many times, including sending three letters of complaint which received no substantive reply. He also received no substantive response to other letters, except for a reply sent on behalf of the Home Secretary which was unhelpful. The Agency say that they gave Mr W’s case urgent consideration, but that was not apparent from the evidence.
The injustice to Mr W
The Agency left Mr W in a state of limbo and uncertainty for six years, which will have caused him substantial distress and anxiety, especially in the context of not knowing what would happen to his children if he were removed from the UK. The realisation that the Agency had decided, but not served, leave to remain and their subsequent incorrect withdrawal of Mr W’s financial support caused Mr W financial loss, serious hardship, and a further sense of hopelessness. All of that was compounded by the Agency’s failure to respond to his letters.
How we resolved the complaint
We upheld Mr W’s complaint. In line with our recommendations, the Agency paid £1,508.76 (plus interest) to Mr W to compensate him for the NASS support he should have received from December 2006 until September 2007. They also paid him £750 to recognise the distress and inconvenience he suffered over a long period, and sent him a written apology.
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