Mr E's application as an overstayer now the spouce of a UK citizen
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Background to the complaint
Mr E arrived in the UK from Zimbabwe in 1999 and unsuccessfully claimed asylum. His appeal against the asylum refusal was dismissed in 2003, as was his application to appeal against that decision. Mr E remained in the UK and in February 2005 he applied for a variation of leave to remain in the UK on the basis of his marriage to a UK citizen. Acknowledging the application, the UK Border Agency (the Agency) told Mr E’s representatives, the Immigration Advisory Service (the Service), that they aimed to complete 70% of applications within three weeks of receipt. However, applications that were complex or required further enquiries normally took thirteen weeks to complete at most. (In fact the Agency had no service standards for cases such as Mr E’s.) In late February the Agency told the Service that they could not decide Mr E’s application on initial consideration, but expected to do so within their published timescales. The Service asked the Agency for an update on Mr E’s application in May, but the Agency did not reply.
In November 2005 Mrs E wrote to the Agency saying that her husband could not work or claim benefits, was very depressed, and had tried to commit suicide because he could not support his family. The Agency did not reply. In December the Service asked the Agency for a progress update but got no reply. Mr E contacted his Member of Parliament, who wrote to the Agency in April 2007. The Agency replied that they could not consider Mr E’s application within the normal timescales as he did not have valid leave to remain at the time he had applied. Such applications tended to be complex and could take much longer to decide. The Agency explained that Mr E’s file had been passed to a specialist unit (the Liverpool Charged Casework Team), but operational constraints and a high volume of similar applications had resulted in delay. They said that Mr E’s case was awaiting allocation to a caseworker for detailed consideration, but were unable to say when he would be told of the outcome.
The Liverpool Charged Casework Team began to consider Mr E’s application in May 2007, and initiated the required security checks. In July, having discovered that Mr E had a minor criminal conviction, the Agency put his application on hold pending the development of policy advice where an individual had been convicted of a criminal offence. In September the Member wrote to the Agency chasing progress. In their reply the Agency said that a number of checks had to be made before Mr E’s case could be decided. The Member then wrote to the relevant Minister saying that the delay seemed excessive, and that without a decision Mr E was struggling to make ends meet. The Minister replied, apologising for the delays and saying that the checks were still ongoing.
In February 2008 the Member wrote to the Minister again saying that Mr E urgently needed permission to work, as his family’s financial struggle was taking a heavy toll on them. In March Mr E’s new representatives wrote to the Agency, saying that his application had a human rights basis, as removal from the UK would affect his right to family life. In April the Agency replied on the Minister’s behalf to the Member, saying that the checks on Mr E’s case were continuing. Mr E appointed new representatives and in May they asked the Agency to confirm what stage his application had reached, but received no reply. In August the Member referred Mr E’s complaint about the Agency’s handling of his application to this Office. After we made enquiries of the Agency, they agreed to treat Mr E’s application as a priority. The Agency considered Mr E’s application in March 2009, and decided to grant him discretionary indefinite leave to remain, subject to his satisfying (afresh) the routine checks and agreeing to withdraw his asylum claim. That same day the Agency (mistakenly) wrote to the Service about their decision and requested photographs of Mr E and other documents. The Service returned the letter, pointing out that they no longer acted for Mr E. The Agency then directed their request to the correct representatives. In April the Agency despatched Mr E’s status document, confirming their decision to grant him indefinite leave to remain in the UK exceptionally, outside the Immigration Rules.
What our investigation found
The Agency’s letters led Mr E to expect that his application would be dealt with within thirteen weeks, but that time frame did not apply to his case. Thus the Agency’s letters were misleading and gave Mr E false hope of a quick decision. Given the significant backlog of overstayer cases and the considerable time expected to deal with each one, it would have been better if the Agency had managed Mr E’s expectations. His application was further complicated by the need for policy guidance. While we appreciated those problems and the difficulty of dealing with a large volume of incoming applications while handling a large backlog, the delays in Mr E’s case were unsatisfactory. By giving him no meaningful indication about the likely timescales for a decision, the Agency failed to live up to the Ombudsman’s Principle of ‘being customer focused’.
Although the Agency responded to much of the correspondence about Mr E’s case, they overlooked some items and made some errors. Their disregard of Mrs E’s letter about her husband’s health was of particular concern, and did not show – in the language of the Ombudsman’s Principles – that they were ‘dealing with people helpfully, promptly and sensitively, bearing in mind their individual circumstances’. Three of the Agency’s letters to the Member also caused concern, implying that Mr E’s application had been delayed by security checks, when their need for policy guidance was the cause of the delay. Thus, the Agency were not ‘open and accountable’. Finally, when the Agency determined Mr E’s case they notified the wrong representatives of their decision, adding to the delay and inappropriately disclosing personal information to a third party.
To summarise, the Agency’s delays and their inability to provide any timescale for determination, coupled with their failures to deal properly with correspondence, fell so far short of the Ombudsman’s Principles as to be maladministration.
The injustice to Mr E
Mr E suffered frustration, distress and anxiety.
How we resolved the complaint
We upheld Mr E’s complaint. Although the Agency eventually decided his application, that did not provide a remedy for the stress and anxiety he experienced. We therefore recommended that the Agency pay him £250 and send him a written apology – from a senior officer.
