Ms A's complaint about the UK Border Agency
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The UK Border Agency’s mishandling of an application for leave to remain from a Key Worker led to Ms A’s suspension from work as a teacher. They then delayed putting right their mistake.
Background
Ms A came to the UK from Romania to study in 1997. She subsequently obtained a degree and a postgraduate teaching qualification, and in 2003 she secured a teaching post in a London school. In that same year she obtained a work permit and leave to remain, and secured a council tenancy under the Key Worker Housing Scheme. In 2004 Ms A applied successfully for her leave to remain and work permit to be extended and in November 2005 she applied for a further extension.
In March 2006 the UK Border Agency (the Agency) refused Ms A’s application for leave to remain on the basis that, as she was living in local authority housing, she had recourse to public funds (which was not the case). The Agency also told Ms A’s employer that she must not continue to work as this would be an offence under immigration law. As a consequence, Ms A was suspended without pay.
Ms A submitted an appeal saying that she was unaware that accepting Key Worker housing amounted to having recourse to public funds, and pointing out that her circumstances had not changed since 2003 when she had first applied for leave to remain as a work permit holder. However, this was the first time she had been told she was using public funds. Her appeal was successful, on the basis that the Agency’s decision had been wrong, as Key Worker housing is not considered to be public funding. On 22 May 2006 the Agency wrote to Ms A confirming that she had been granted further leave to remain and she returned to work on 25 May.
In October 2006 Ms A wrote a letter of complaint to the Agency seeking compensation for loss of earnings between 17 March and 25 May 2006, as well as for the ‘great distress and anxiety’ caused to her and the ‘great worry’ resulting from having to pursue an appeal. The Agency said they had no trace of receiving that letter (although it was sent by recorded delivery and Royal Mail records showed it as having been delivered).
In March 2007 Ms A chased the Agency for a response and was told to fax a further copy of her complaint. In June the Agency replied saying that they had applied the rules appropriately as they had not been aware until the appeal hearing that Ms A’s accommodation was being provided under the Key Worker Housing Scheme. They also said that Ms A had been entitled to continue in employment pending her appeal and so they were unable to consider her claim for compensation and
lost earnings.
What we investigated
We investigated Ms A’s complaint about the Agency’s handling of her application for leave to remain; in particular that they wrongly refused her application on the basis that she had recourse to public funds, and that they failed to tell her that she could continue working pending her appeal.
Ms A said that as a result of the Agency’s actions the school where she was working had terminated her contract. She had lost earnings and was caused ‘an enormous amount of stress’, for which she sought compensation.
In responding to our investigation, the Agency said that they had added advice to their guidance notes for applicants of leave to remain about the categories of housing that do not fall within the definition of public funds. The Agency also offered to pay £4,614.15 to Ms A, in respect of her gross earnings from 17 March to 24 May 2006.
What our investigation found
The Agency’s decision on Ms A’s claim for leave to remain was based on incomplete facts, in that neither their application form nor the accompanying guidance notes contained sufficient information to obtain the required information from Ms A about her housing. The Agency’s decision was also flawed as their own guidance said that those renting homes under the Key Worker Housing Scheme should not be classified as having recourse to public funds. We found that the Agency failed to explore an apparent contradiction in Ms A’s form, which said that she was renting from a local authority but had no recourse to public funds. These errors demonstrated a failure to be ‘open and accountable’ in line with the Principles of Good Administration and were sufficiently serious as to amount to maladministration.
The Agency’s handling of Ms A’s complaint was also poor. This ranged from the poor customer service – shown by the loss of the recorded delivery letter, to the substance of their reply to her complaint – in which they refused to accept any responsibility for the incorrect decision or the consequences which flowed from it. This initial failure by the Agency to admit to and then correct their mistakes was not in keeping with the Principle of ‘Putting things right’ and also amounted to maladministration.
Consequences
As a result of the Agency’s error in refusing her application, Ms A suffered significant distress and anxiety, which was compounded when the Agency told her employer that they would be acting illegally if they continued to employ her. This left Ms A without an income for two months and caused her embarrassment and distress.
We upheld Ms A’s complaint.
Resolution
We welcomed the Agency’s offer to compensate Ms A for her lost earnings. In response to the recommendations contained in our report the Agency also:
- sent Ms A a written apology for their poor handling of her case and its impact on her;
- paid her compensation of £500 for the impact of their poor complaint handling; and
- agreed to review the content of the leave to remain application form, and their internal guidance to staff, and to further review the guidance notes for applicants with the aim of satisfying themselves that an error of this kind could not recur.
