Ms G's application on the basis of 14 years' residence in the UK
Jump to
Background to the complaint
Ms G was born in Nigeria and came to the UK in 1987, aged seven. In 2001 she was included in her mother’s seven‑year child concession application to the UK Border Agency (the Agency), which was refused; and in 2002 Ms G submitted a human rights application and an application for indefinite leave to remain based on the seven-year child concession. Both applications were refused. In November 2005 Ms G’s solicitors submitted an application for indefinite leave to remain on the basis of fourteen years’ residency in the UK. She was now an overstayer.
The solicitors wrote to the Agency in October 2006 asking for a progress update, and referring to a letter the Agency had sent them in December 2005 which said that Ms G’s application would be dealt with within thirteen weeks. The Agency did not reply to this letter, nor to a further chasing letter sent in May 2007. Ms G then wrote to the Agency herself, describing how not having legal status in the UK was affecting her. She asked for her case to be expedited. The Agency sent Ms G two letters in reply, both of which said that due to the high volume of applications of this type, applications such as hers had met with substantial delay. The Agency also said they were taking steps to reduce waiting times but that they were unable to give a date by which her application would be decided.
Ms G’s Member of Parliament wrote in July 2007 to ask the Agency for an update. The Agency replied saying that applications like Ms G’s could not be considered within the normal timescales as they were more complex. The letter also explained that cases were normally dealt with in turn unless there were compelling, compassionate or operational reasons for doing otherwise. The Agency said that they could not give a precise date as to when Ms G would be told the outcome of her application. The Agency also wrote to Ms G in September, informing her that it was not possible to say if her application would be dealt with quickly. The letter directed Ms G to the Agency’s website for the up-to-date timescales for processing applications, and asked her not to contact the Agency until she had heard from them.
In January 2008 Ms G’s new representatives (the Immigration Advisory Service) asked the Agency for an update on her application. The Agency responded, again citing the volume of applications and resulting delays, and were unable to say when Ms G’s application would be decided. Ms G wrote to the Member again, in March, asking for help to resolve her immigration status. The Member duly wrote to the Agency, who said that Ms G’s case was with their Liverpool Charged Casework Team, but they could not say when her case would be decided. In August the Agency received a letter from a firm of solicitors about someone else’s application, which they mistakenly attached to Ms G’s file and updated her file to show that firm of solicitors as being her representatives. Two days later Ms G wrote to the Agency, asking for her case to be expedited because the delay in deciding her application was preventing her from getting a job, making her feel stressed, and affecting her health. The Agency treated this as a letter of complaint. In October the Agency responded in writing to both of the above letters; with one letter (which Ms G did not receive because the Agency sent it to the wrong solicitors) apologising for the delay in dealing with her application, and saying that they were unable to give a precise date as to when they would reach a decision. This letter offered no advice on the second stage of the Agency’s complaints procedure.
Ms G was finally granted indefinite leave to remain in April 2009.
What our investigation found
The Agency’s handling of Ms G’s case was poor from the start. Neither she nor her representatives were given any useful advice about when they could expect a decision. One Agency letter said that applications would be completed within thirteen weeks, and another referred her to their website for current processing times. But these were not timescales for applications made out of time, and gave no indication that some applications might take three years or more to decide. Although Ms G’s application was not straightforward because she was an overstayer, the Agency took no substantive action on it for over three years. Given the significant backlog of such cases and the considerable time expected to deal with each one, it clearly would have been better if the Agency had managed Ms G’s expectations more fairly and had alerted her to the possibility of a significant delay in dealing with her application. The Agency’s approach lacked customer focus and failed to follow the Ombudsman’s Principle that bodies should ‘inform customers what they can expect’.
In terms of their handling of Ms G’s and her representatives’ correspondence, the Agency did not reply to three letters. In addition, Ms G twice asked the Agency to expedite her case. They did not respond to her second letter, while their response to her first letter made no reference to her request. While it is unlikely that Ms G’s reasons for wanting her application expedited met the Agency’s criteria for doing so, we were not persuaded that she was aware that her request for prioritisation had even been considered. While it may well have been reasonable for the Agency to have declined to expedite Ms G’s application, they should have properly considered her circumstances, and properly communicated any decision. Despite treating Ms G’s letter of August 2008 as a complaint, the Agency’s response (sent to the wrong solicitor) failed to tell her that she had the right to escalate the complaint to the second stage of their complaints procedure. Thus the Agency did not follow the Principle that bodies should ‘deal with complaints promptly, avoiding unnecessary delay, and in line with published service standards where appropriate’. The Agency’s overall handling of Ms G’s correspondence lacked customer focus, and failed to follow the Principle that bodies should deal with people ‘helpfully, promptly and sensitively, bearing in mind their individual circumstances’.
The injustice to Ms G
We were satisfied that Ms G suffered uncertainty and inconvenience as a result of the Agency’s maladministration. Their inability to say when she could expect her application to be determined caused her anxiety, as did their failure to respond to some letters. However, we recognised that it was likely that Ms G suffered similar levels of anxiety and inconvenience during the fourteen years she was in the country unlawfully.
How we resolved the complaint
We upheld Ms G’s complaint. Her application was finally determined, which was the outcome she sought. In the course of our investigation, the Agency recognised their failure in mishandling correspondence and by way of remedy they offered Ms G their apologies, and £50 to recognise the effects these failings had on her. The Agency agreed to our recommendation that the written apology should come from a senior officer.
