Mr P's complaint about the UK Border Agency
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Failure by the UK Border Agency to check their paper files led to a legitimate long-term UK resident being threatened with removal from the UK, missing the funerals of two close family members and being unable to visit his sick mother.
Background
Mr P, a Jamaican citizen, was granted indefinite leave to remain in the UK in May 1990. Later, during an argument with his then partner, Mr P’s passport was destroyed. He obtained a new Jamaican passport in 2004, and in July he asked the UK Border Agency (the Agency) for a No Time Limit (NTL) stamp on his passport to confirm he held indefinite leave to remain. He enclosed the fee of £155. In September the Agency asked Mr P for a police report for his lost passport and for confirmation of his indefinite leave to remain. Mr P explained that his passport had been destroyed and that he had not reported it to the police until he applied for a new one, by which time it was too late to report it lost. Mr P said he had also lost all the correspondence relating to his indefinite leave to remain and the firm of solicitors who had dealt with matters had closed. Mr P asked the Agency to sort matters out quickly as he wished to visit his mother, who was ill, in Jamaica. The Agency rejected Mr P’s NTL application, as he had provided no evidence of having been granted indefinite leave to remain and the Agency held no record of it either. They returned Mr P’s passport and papers, but not his £155 fee.
In February 2005 Mr P submitted a new indefinite leave to remain application, on the grounds that he had resided in the UK for 14 years. The Agency returned the application in April, saying that he had not enclosed the fee of £155. Mr P resubmitted the application on 8 April, together with a letter complaining about delay processing his application, and proof of having paid the fee in 2004. In May 2005 the Agency wrote to Mr P, referring to his April application and noting he had not paid the £160 fee (which had just increased from £155). Mr P resubmitted the application on 8 May and paid the £160 fee, pointing out that the Agency had still not reimbursed the previous fee. Mr P then complained to the Agency about their service, and lack of a refund. The Agency told Mr P that they aimed to decide his case promptly, at most within 13 weeks. Following further contact from Mr P, the Agency returned the original fee of £155.
In July 2006 Mr P asked the Agency to return his passport duly stamped. He said he still wanted to visit his mother, who remained ill, and that he had been unable to attend the funerals in Jamaica of his father and sister because the Agency had his passport.
In January 2007 the Agency wrote to Mr P, apologising for not updating him sooner on the progress of his May 2005 indefinite leave to remain application, which was awaiting consideration. Mr P replied that he had not applied for indefinite leave to remain, but for an NTL stamp on his passport to confirm the indefinite leave to remain he had been granted in 1990. He again stressed the urgency of his case, given his mother’s poor health. On 8 April and 10 May 2007 the Agency asked Mr P to complete a questionnaire which they said would help them to determine his lawful entry into the UK. They also asked the Foreign and Commonwealth Office if they held an overseas visa application for Mr P. In July the Agency told Mr P that they had rejected his May 2005 NTL application and his February 2005 application for indefinite leave to remain, and served him with a notice that he was liable to be detained and removed from the UK. He unsuccessfully appealed this decision. In October 2007 Mr P’s solicitors submitted a new indefinite leave to remain application, on the basis that Mr P had lived continuously in the UK for more than 19 years, and enclosed the £750 fee.
In November 2007 an Agency official emailed another official seeking a ‘brief look’ for any file holdings on Mr P. The response noted that the Agency held a file for Mr P which had been opened in connection to a marriage application in 1989, with a ‘follow up application in 1990, presumably when he applied for indefinite leave to remain…’. (Mr P’s 1990 application pre-dated the Agency’s current database, and his original Home Office file contained clear evidence of his entitlement to indefinite leave to remain.)
On 27 November 2007 the Agency wrote to Mr P, referring to a letter he had written to the Prime Minister. They said that further enquiries had established that he had been granted indefinite leave to remain in May 1990, and they asked for evidence to show that he had not been away from the UK for more than two years since then. The Agency made no reference to their errors in denying his indefinite leave to remain status for three and a half years, but did say they would not remove him from the UK while he had an ‘outstanding application’. Mr P provided the evidence the Agency required in December 2007 and in February 2008 the Agency finally returned his passport, endorsed with his indefinite leave to remain status. Mr P’s Member of Parliament brought Mr P’s complaint to the Ombudsman, and it was accepted for investigation in April.
What we investigated
We investigated the Agency’s handling of Mr P’s case since he first contacted them to obtain an NTL stamp.
Mr P said that during the time it took the Agency to recognise his legal status in the UK, he had been threatened with removal from the UK, been unable to visit his sick mother and had missed two family funerals. Mr P said he wanted the Agency to recognise the stress and anxiety their actions had caused him and his family, and to reimburse the expenses and fees he had incurred.
What our investigation found
While it was not the Agency’s fault that Mr P had no proof of his indefinite leave to remain status, it was not unreasonable for him to expect that they would, quickly and easily, be able to confirm that he was entitled to be in the UK. Once they became aware of his difficulties and received his application for an NTL stamp, the Agency ought to have dealt with his case far better.
‘Getting it right’ is the first of the Ombudsman’s Principles of Good Administration, but from the beginning the Agency failed to get things right. While they may have followed their own procedures in checking their computer database and checking with UK Visas, they did not take the obvious step of checking their paper records. That small error by the Agency ultimately had the serious consequence of Mr P being threatened with removal from the UK.
The Agency showed no ‘customer focus’ in their dealings with Mr P. They did not always pay attention to the details of his correspondence, failing to appreciate that he was applying, not for a grant of indefinite leave to remain, but for confirmation that it had already been granted. They also failed to respond appropriately when he described to them the impact of their delay on his normal family life.
‘Putting things right’ is another Principle relevant here. The Agency’s performance was particularly poor, in that they failed to recognise their errors until Mr P had been put to the trouble of approaching his Member of Parliament, writing to the Prime Minister, and complaining to the Ombudsman. The Agency’s errors were so stark they ought to have recognised them far earlier.
Consequences
The resulting injustice to Mr P of this maladministration was that for three and a half years he was unable to exercise the rights that the indefinite leave to remain gave him. He missed two family funerals and he was unable to visit his mother when she was ill. Mr P was wrongly threatened with removal from the UK, which caused him and his family considerable distress and anxiety. The impact of being told by a government agency that you have no right to reside in the country that is rightfully your home must have been immense. The Agency also caused Mr P unnecessary expenses in that he felt compelled to engage a solicitor, and paid £750 for an indefinite leave to remain application that should not have been necessary.
We upheld Mr P’s complaint.
Resolution
During our investigation, the Agency apologised unreservedly to Mr P for mishandling his case and for the distress and inconvenience caused; offered to consider compensation; and agreed to refund the £750 application fee. As this did not, in our view, recognise the full impact of the Agency’s maladministration on Mr P, we recommended that they also:
- refund all the legal fees Mr P incurred after he first approached them in 2004;
- refund his £750 fee, with interest;
- refund the £5 difference between the fee payable when he first approached them and the £160 he was subsequently charged (as they had not dealt properly with his first application);
- consider any other expenses that Mr P incurred as a result of their maladministration on production of supporting evidence; and
- pay him £2,500 in recognition of the severe distress, inconvenience, great uncertainty and embarrassment they caused him and his family.
The Agency complied with our recommendations.
