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Parliamentary Commissioner for Administration

Selected Cases and Summaries of Completed Investigations - April to September 2000

Volume 3 - 3rd REPORT - SESSION 2000-2001

Chapter 1

HOME OFFICE

5. Case No. C.1304/00

Immigration and Nationality Directorate and Foreign and Commonwealth Office: delay in arranging the issue of entry clearances to enter the United Kingdom

Summary

The Ombudsman upheld a complaint from Mrs L that the Immigration and Nationality Directorate of the Home Office and the Foreign and Commonwealth Office had delayed in issuing entry clearances to enter the United Kingdom to Mrs L's family following their successful appeal against refusal to do so. He found that although the Foreign and Commonwealth Office had not handled correspondence about the delay as well as they could have done, it was the Immigration and Nationality Directorate's mishandling which had caused the delay. The Permanent Under Secretary of State at the Foreign and Commonwealth Office apologised for the Foreign and Commonwealth Office's shortcomings in the handling of correspondence. The Permanent Under Secretary of State at the Home Office offered apologies to Mrs L for a period of six months' unnecessary delay in confirming that entry clearances could be issued, which he attributed in part to the upheaval caused by the Immigration and Nationality Directorate's reorganisation into a single integrated casework directorate; and he set out the general efforts that they were making to improve their service. He offered to make ex gratia payments to Mrs L of £800 in respect of additional expenditure that Mrs L had incurred in supporting her relatives during the delay period on the production of further evidence; and of £100 in recognition of distress and anxiety she had been caused. The Permanent Under Secretaries also described the steps the Immigration and Nationality Directorate and the Foreign and Commonwealth Office had taken to ensure other successful appellants did not encounter similar delays.

Full text

1. Mrs L's solicitors complained, on her behalf, that the Foreign and Commonwealth Office (FCO) and the Immigration and Nationality Directorate (the Directorate) of the Home Office delayed in arranging for entry clearance to the United Kingdom (UK) to be issued to Mrs L's husband, mother and children following their successful appeal against refusal of their applications under the Directorate's Somali family reunion policy. That delay caused distress to Mrs L and her family, as well as financial loss, because she continued to support them while they remained in Ethiopia.

2. My investigation began in February 2000 once the Ombudsman had received comments from the Permanent Under Secretaries of State at the Home Office and FCO. I have not put into this report every detail investigated by the Ombudsman's staff, but I am satisfied that no matter of significance has been overlooked.

Background

3. A Somali national is required on arrival in the UK to show an immigration officer a valid passport or other identity document endorsed with an entry clearance issued to him or her for the purpose for which he or she seeks entry. Under section 3(1)(b) of the Immigration Act 1971, a person who is not a British citizen may be given leave to enter the UK for a limited or indefinite period. Applications for entry clearance must be made at British diplomatic or consular posts overseas. Under sections 3(3)(a) and 4(1) of the Act, the Secretary of State may, once a person has entered the UK, vary the conditions or duration of limited leave to remain by enlarging or removing the time limit on its duration. Under paragraph 328 of the 1994 Immigration Rules, all asylum applications are determined in accordance with the UK's obligations under the United Nations Convention and Protocol Relating to the Status of Refugees, which sets out the criteria for the consideration of applications for asylum.

4. Prior to a major reorganisation in December 1998 and January 1999, the Directorate's asylum directorate dealt with applications for asylum. They also dealt with applications for entry clearance referred by British diplomatic posts abroad from relatives of people granted asylum in the UK and from relatives of certain persons granted exceptional leave to enter or remain in the UK on humanitarian grounds. After the Directorate's reorganisation, asylum applications were absorbed into the Directorate's new single integrated casework directorate. The Directorate's presenting officer units, which have come under the management of the integrated casework directorate since the reorganisation, are responsible for representing the Secretary of State, the immigration officer and the entry clearance officer at adjudicator and tribunal hearings of appeals against the Directorate's decisions. The Immigration Appellate Authority arranges such hearings. There are presenting officer units responsible for each of the Immigration Appellate Authority hearing centres. Presenting officers are responsible for any necessary action following appeal hearings where the appeal against refusal of entry clearance is allowed by the adjudicator. In such cases, the Directorate have the option to challenge the appeal decision if they so wish.

5. Entry clearance applications for family members to join relatives in the UK fall into two main types: (1) applications for family reunion; and (2) applications for relatives seeking admission under the Immigration Rules. The term "family reunion" describes the process of the reunification of families (normally the spouse and the minor children) who have been split as a result of the sponsor fleeing to seek asylum as a refugee. People in that category are treated more favourably than others applying to join a relative in the UK. In particular, a requirement of the Immigration Rules that the sponsor must be settled in the UK is waived and the immediate family of people who have been recognised as refugees (and therefore granted asylum) will be allowed to join the sponsor providing they had formed part of the family unit before the sponsor came to the UK to seek asylum. Requirements of the Immigration Rules that the parties must be able to maintain and accommodate themselves without recourse to public funds which must be satisfied by sponsors with exceptional leave to remain are also waived for refugee sponsors.

6. In the case of Somali nationals, the policy on family reunion, as announced in a letter to interested bodies on 17 May 1990, was that the Directorate would consider applications from family members outside the normal family reunion policy (that is, the wife and minor children) where the refugee, or the individual who had been granted exceptional leave to remain for four years or more, could show that the applicant was a dependent member of his immediate family unit before he came to the UK. Discretion could also be exercised, and particular requirements waived, in cases where there were particularly compelling compassionate circumstances. The Somali family reunion policy was withdrawn on 15 January 1996 and all the arrangements for considering family reunion were brought into line with the arrangements for applications by other nationalities.

Investigation

7. 1994-1998 In September 1994 Mrs L applied for asylum as a refugee. In November the Directorate refused the application but, because of the situation in Somalia, granted her exceptional leave to remain until September 1995. The Directorate subsequently granted Mrs L further periods of exceptional leave. In July 1995 the entry clearance officer at the British Embassy in Addis Ababa (the embassy) referred to the Directorate applications which Mrs L's husband, two of their three children and her mother had made to join Mrs L in the UK under the Somali family reunion policy (paragraph 5.6); details of the third child and her photograph were not included. On 30 October the Directorate refused those applications. On 8 November the solicitors appealed to the embassy on Mrs L's family's behalf against that decision. On 12 May 1998 the Directorate allowed Mrs L's application to upgrade her status to refugee, granting her leave to remain in the UK until 9 November 1998. On 4 November Mrs L applied for further leave to remain.

8. 1999 On 29 March 1999 the Immigration Appellate Authority sent to the solicitors notice that, since Mrs L had by then been granted asylum, the adjudicator had allowed the appeals made by Mrs L's family under the terms of the Somali reunion policy (paragraph 5.6). In his determination, the adjudicator gave directions to the entry clearance officer to grant entry clearance to the four appellants. He also made a recommendation that Mr and Mrs L's third child, who had not been a subject of the original applications (paragraph 5.7) and therefore of those decisions, should also be granted entry clearance to join Mrs L. On 31 March the Directorate's presenting officer who had been present at the appeal hearing, gave instructions for the adjudicator's determination and extracts from the Directorate's file to be sent to the entry clearance officer. On 7 April the presenting officer wrote on the file that those documents had been sent to the entry clearance officer (although there is no record of an actual despatch date in the Directorate's file); no further Directorate action would be necessary so the file could be put away. The embassy have said that they have no record of having received those papers.

9. On 8 April the solicitors wrote to the Directorate asking for confirmation that they had authorised the entry clearances. On the same date the solicitors also faxed to the entry clearance officer a copy of the determination, asking him to arrange entry clearance for the parties included on it. On 23 April the embassy noted on that fax that they were awaiting authority from the Directorate; no further action was required for the present and the papers should be put away. On 11 May, having received no reply to their letter of 8 April, the solicitors faxed the embassy again asking them when Mrs L's relations would be granted entry clearance. On 13 May the solicitors telephoned the embassy asking them to telephone the Directorate to seek their instruction on the matter. On the note of that conversation in the embassy's papers they recorded that they had told the solicitors that a wait of two to three months was "not unusual"; that it was too early to chase the Directorate as they were under pressure; and that the embassy had to give them "breathing space". On 18 May the embassy sent a telegram to the Directorate saying that "apparently" the appeal had been allowed on 29 March and asking for advice on how to proceed. On the same date the entry clearance officer replied to the solicitors' letter of 11 May saying that they were awaiting instructions from the Directorate.

10. On 8 June the solicitors faxed the embassy in reply complaining that the "continued gross delay" was causing serious hardship to Mrs L's family and asking them to obtain instructions to issue entry clearances to them forthwith. On the same date the solicitors complained to the Member. On 17 June the entry clearance officer replied saying that he had forwarded the solicitors' letter to the Directorate, which he did the same day. On 10 June the Member wrote to the Parliamentary Under Secretary of State about the matter. On 26 July the Parliamentary Under Secretary replied apologising for the delay and inconvenience. He said that the Directorate had by then sent authorisation to the embassy to issue entry clearances to Mrs L's husband and four others, and that the embassy would be contacting them in due course.

11. On 2 September the solicitors wrote to FCO's migration and visa division correspondence unit (the correspondence unit), complaining that the embassy had not replied to their complaint letter to them of 8 June, a copy of which they enclosed. They asked the correspondence unit to ensure that the embassy dealt with their correspondence and complaints and that they also complied with the direction of the adjudicator. On the same date the solicitors faxed the embassy complaining that they had not received a reply to their complaint letter of 8 June. In view of the "outrageous delay" in the case, the solicitors asked what the embassy had done to expedite matters. Also on the same date, the solicitors complained again to the Member. On 11 September the Member wrote to the correspondence unit again asking for the entry clearances to be issued. On 30 September, having received no reply to their letter of 2 September, the solicitors faxed the embassy again.

12. On 7 October the solicitors wrote to the correspondence unit and the embassy again, enclosing a copy of the Parliamentary Under Secretary of State's letter of 26 July and complaining that the entry clearances had still not been issued. The solicitors also complained that the correspondence unit had not replied to their letters of 2 and 30 September and that the embassy had not replied to their letters of 8 June and 2 September. On 13 October the embassy replied to the solicitors' letter of 30 September saying that their records showed that they had on 17 June replied to their complaint letter of 8 June; they had said that they had forwarded their letter to the Directorate. They said they had no record of the solicitors' letter of 2 September. The embassy said that although the solicitors had sent them a copy of the determination, they could take no action until they received authority from the Directorate direct; they had sent them an urgent telegram that day asking for such authorisation. On the same day the embassy sent a telegram to the Directorate asking them how to proceed.

13. On 28 October the solicitors faxed the embassy saying that the embassy should either act on the Parliamentary Under Secretary of State's letter of 26 July which they had sent them or, if they had to have authorisation from the Directorate direct, take some active steps to obtain that. On the same date the solicitors wrote to the Directorate enclosing a copy of the letter of 26 July and asking them to contact the embassy with authorisation that day. On 5 November the Member referred the matter to the Ombudsman. On 9 November the solicitors sent the correspondence unit a letter by recorded delivery complaining again that they had received no reply to their letters. On 10 November the embassy wrote to the correspondence unit who had approached them for information about the case, setting out the efforts they had gone to try to elicit the appropriate authorisation from the Directorate, but without success. On 12 November the embassy sent a telegram to the Directorate asking for immediate instructions without which they said they could not take action, and replied to the solicitors' letter of 28 October to tell them that they had done so. On the same date the correspondence unit telephoned the solicitors and left a message that they were looking into the matter.

14. On 21 November the correspondence unit replied to the embassy's letter of 10 November saying that they had been in touch with the Directorate's presenting officer who had said that as far as he could see from the file he had sent the required authorisation to them on 6 April. They attached for the embassy copies of the papers that they should have received and asked for confirmation by return that the embassy would then be issuing the entry clearances to the four applicants and the third child. On 1 December the embassy wrote to the correspondence unit saying that they would take their verbal authority that the Directorate were not going to appeal against the adjudicator's decision and that they would issue entry clearance for the four appellants once they had presented themselves at the embassy for verification. However, the embassy said that the third child who had not been included in the original applications would need to make one, and may also require DNA testing at which point that entry clearance might also be issued. On 11 December FCO's migration and visa division replied to a letter the solicitors had sent them on 5 December, passing on that news and saying that it was because the third child had not submitted an application form or photographs previously that a DNA test would be necessary.

15. On 20 December, in a note setting out the history of Mrs L's case, the embassy told the migration and visa division that they thought it had been reasonable to allow the Directorate at least one month to inform them of the adjudicator's decision when the solicitors had telephoned them on 13 May to ask them to put pressure on the Directorate (paragraph 5.9). They said that their receipt on 23 November of the correspondence unit's fax attaching copies of the decision and the Directorate's file notes was the first occasion when they could have been satisfied that the Directorate were not proceeding to tribunal to object to the adjudicator's decision. The embassy said that they could have been more active in trying to solicit by telephone a response from the Directorate to their three telegrams, but telephone services in Addis Ababa were erratic and they did feel that they had done their best by the securest means. However, they acknowledged that their replies to the solicitors could also have been fuller. The embassy said that they regularly received representations from the representatives of Somali nationals putting pressure on them to issue entry clearances following adjudicator's decisions, but they had "had their fingers burnt" before when they had issued entry clearances before they had had confirmation from the Directorate that they did not intend to proceed to tribunal. The embassy asked whether it would be possible to agree a timescale for cases similar to Mrs L's after which they could safely assume that there would be no further appeals, which they felt would put the onus on the Directorate to inform them of decisions within, say, four weeks.

16. On 11 January, following further correspondence between the migration and visa division and the solicitors on the matter, the Directorate faxed the migration and visa division with formal authorisation to issue entry clearances for the four appellants, and also for the third child without a DNA test. On 12 January the migration and visa division wrote to the solicitors passing on that news; they said that the Directorate had "very exceptionally" authorised entry clearance issue for the third child without a DNA test, although they shared a concern about an adjudicator making a recommendation about a person who had not been a subject of the appeal. The imigration and visa division offered sincere apologies for failing to reply to the solicitors' letters of 2 and 30 September and 7 October, which they said had been caused by a very heavy backlog of work in the correspondence unit during the summer. On the same date they replied to the Member's letter of 11 September, also apologising for the delay in doing so. The migration and visa division said that difficulties in the Directorate had caused the delay in Mrs L's family's case being progressed.

The Home Office's and FCO's comments on the complaint

17. There follows an edited extract from the Permanent Under Secretary at the Home Office's comments on the complaint:-

"Action in the presenting officers' unit

17.1 While it would have been evident to the entry clearance officer when receiving the allowed appeals from the presenting officers' unit that the Directorate did not intend to challenge the adjudicator's determination, the presenting officer's actions in simply sending the determination to the entry clearance officer without any guidance would have left the entry clearance officer uncertain as to the action to be taken on the adjudicator's recommendation about the third child. Moreover, it is apparent that the documents were not received by the entry clearance officer until much later in 1999. Although it is evident that the documents were intended to be sent to the entry clearance officer in April 1999, it would gave been better to have a file record, such as a dated note addressed to the entry clearance officer, confirming that that had been done. In July 1999 an instruction to presenting officers' units was issued providing guidance on the handling of dismissed and allowed appeals, and advising staff, among other things, to issue a covering letter when sending allowed appeal determinations to entry clearance officers. That instruction should promote better record keeping of the advice being given to entry clearance officers. In the light of their experience in this case, the Directorate will review those procedures in consultation with FCO to ensure that they are effective.

Action in the integrated casework directorate

17.2 The enquiry by the Member in June 1999 should nevertheless have alerted the integrated casework directorate to the non-actioning by the entry clearance officer of the allowed appeals. However, the caseworker who drafted the reply mistakenly relied upon the file record of the presenting officers' unit's action in April as an instruction to the entry clearance officer to issue entry clearances to all the family members requiring them, including the third child. The Parliamentary Under Secretary of State's letter of 26 July was therefore misleading, albeit unintentionally, in giving an assurance that the Directorate had already instructed the entry clearance officer to issue entry clearances. The caseworker's draft had been submitted to the Parliamentary Under Secretary of State's office without being checked by a more experienced member of staff. Following a review of the handling of ministerial correspondence, draft replies are now submitted through a senior caseworker, which should help to reduce errors of that kind.

17.3 A more general matter of concern is that the letter that the solicitors sent to the Directorate on 28 October 1999, and the communications the entry clearance officer sent to the Directorate in May, June, October and November, do not appear to have reached the Directorate file. We have not seen copies of those, but it is accepted that disruption arising out of the Directorate's reorganisation may have contributed to the correspondence not reaching the file. New procedures in the integrated casework directorate should ensure that in future correspondence is linked to files promptly.

Conclusion

17.4 It is clear that the Directorate failed to take effective action to secure the correct handling of the consequences of the allowed appeals. We accept criticism of our failure to ensure that the entry clearance officer was fully and promptly informed of the Directorate's decisions and I should be grateful if you would convey our apologies to Mrs L and her representatives for the anxiety and inconvenience that caused. Before we are able to consider making a payment to Mrs L, we would require further explanation of the compensation sought and supporting evidence of any costs incurred."

18. There follows an edited extract from the Permanent Under Secretary of State at FCO's comments on the complaint:-

18.1 "It appears that the delay in issuing entry clearances following the adjudicator's decision was due to an oversight at the Directorate: the necessary authority to the embassy to grant entry clearance was not issued, and without it the embassy could not act. On 11 January 2000 the Directorate told FCO on the telephone that they accepted that the delays in the issue of entry clearances were due to a succession of errors on their part. The Directorate confirmed that in writing on the same day, and exceptionally authorised FCO to instruct the embassy to issue an entry clearance to the third child, subject to the production of an application with photographs, but without the need for a DNA test.

18.2 I do not think, on the basis of my reading of the papers, that the embassy or the correspondence unit were responsible for the delay in issuing entry clearances to Mrs L's family after their successful appeal. The embassy were right to pursue the matter with the Directorate (and did so without unreasonable delay), and they were right to advise the solicitors to do so too. It might have helped if they had sought FCO support in pressing the Directorate for a response - that could also have helped to expedite the handling of the solicitors' letters to the correspondence unit - but that is only speculation: the fact is that it was the Directorate's failure to issue authorisation to the embassy, or to react to any of the embassy's telegrams, which caused the delay. Nor do I think the embassy were at fault in not acting immediately on receipt (from the solicitors) of a copy of the Parliamentary Under Secretary of State's letter, not least because it referred to five persons, and they had received applications only from four: in asking the Directorate for urgent instructions they did the right thing. Nor was the embassy blameworthy for the subsequent short additional delay while the possible need for a DNA test for the third child was considered. The point was a valid one, particularly given the embassy's previous experience, and I am told that the Directorate, though they agreed in the end to waive the test, believe that it was strictly incorrect for the adjudicator to have made a recommendation about someone not the subject of the appeal. It would clearly have been better if the point had been considered in the Directorate before the Parliamentary Under Secretary of State's letter was sent, and covered in the instructions to the embassy which the letter, wrongly, claimed had already been issued - but which did not issue, despite the embassy's three telegrams.

18.3 As for the role of the correspondence unit, there is of course no excuse for their failure to respond to the three letters of 2 and 30 September and 7 October; and I can only echo the apologies contained in the migration and visa division's letters to the Member, and the solicitors, of 12 January. But on my reading of the papers, that failure was not material to the causes of the delay. Had the unit responded more promptly, we might have helped the embassy more effectively to get the Directorate to take the action not taken in spring 1999. But the embassy's telegrams should have been sufficient to do the trick.

18.4 We are in touch with the Directorate about their further arrangements for notifying our posts of the outcome of appeals, and instructing them on consequent action."

Further enquiries

19. The solicitors told the Ombudsman's staff that Mrs L had suffered financial hardship because of the delay in her family's case as, while her family remained in Ethiopia, Mrs L had supported them by sending money via unofficial money couriers. That was a very informal arrangement, and in the solicitors' experience was very common in the Somali community. The system worked purely on trust, and receipts would not commonly be issued. Many people in Mrs L's position used such means to send money. She could not, therefore, provide receipts for the sums she had sent. From September 1994 when she had arrived in the UK and had started receiving income support, Mrs L had been sending her family US$100 a month. From 1996 she had increased that to US$200 a month. She had saved that from income support payments. The solicitors said that although those sums sounded surprising, it was their experience that that was common in the Somali community, given their frugality and the desperate conditions in which their relatives lived. Mrs L had also borrowed and sent additional sums for medicine when members of the family had been ill. The solicitors said that because applicants in the L family's position were granted leave to remain in the UK without restriction on public funds or employment (paragraph 5.5) had the four applicants in Mrs L's case been unable to find employment, they would have been eligible to claim social security benefits and Mrs L would have been relieved of the financial cost of maintaining them.

20. The solicitors said that the delay in their case had caused Mrs L and her family great distress. Mrs L's family, in common with all other Somali refugees, had had to live in Ethiopia illegally, and she knew that they lived in constant fear of detention and deportation back to the very dangerous conditions in Somalia. To avoid that, they had restricted their movements a great deal. Mrs L had suffered the emotional hardship of knowing that, despite the money she was sending, her family continued to live in wretched and impoverished conditions, and that her children were suffering from disease but had very little access to basic healthcare. The solicitors said that Mrs L had suffered terrible anxiety about the conditions her family had been living in, and had tried to console herself with religious practice. She had felt that she would rather die than live apart from her family. Her family had not been able to understand fully the reasons for the delay in entry clearances being issued, and at times had blamed Mrs L for it, which had put extra burdens on her marriage. Mrs L's family had no status in Ethiopia, and were at the mercy of the security forces there, and at constant risk of extortion from them, or of being arrested and deported to Somalia. Mrs L was concerned to ensure that nobody else suffered in the way that she had because of delay in handling their case.

21. The solicitors told the Ombudsman's staff that they had not, after failing to receive a reply to their letter of 8 April 1999 (paragraph 5.9), contacted the Directorate until 28 October (paragraph 5.13) because it was their experience from other cases that the Directorate did not reply to letters, particularly those in which they asked them to process routine matters. They said that the Directorate had not replied to any of their letters about Mrs L's case, although after the matter had been referred to the Ombudsman a Directorate caseworker had contacted them by telephone. The solicitors had not tried to telephone the Directorate because, during the period in question, it had been extremely difficult to get through on their telephone lines. However the solicitors said that they did have an expectation that two branches of government should be capable of communicating basic information to each other and they had expected that the embassy would have had a telephone number for the Directorate and could have communicated effectively with them on their behalf. They had therefore concentrated their communication efforts on the embassy, as they knew that there was some chance of getting a response from them.

22. On 12 July 2000 the solicitors wrote to the Ombudsman's staff saying that the four applicants and the third child had arrived in the UK on 19 June and had been granted indefinite leave to remain. However, they said that Mrs L and two of her dependants who had already been in the UK had still not heard from the Directorate about applications for further leave to remain which they had made in November 1998. The solicitors said that the Directorate had not replied to a letter they had sent them about that on 28 October 1999. They had mentioned the delay when they had managed to get through to the Directorate by telephone, but the Directorate had told them that the delay had been caused by the relevant file being with the Ombudsman's Office. On 19 July 2000 the Ombudsman's staff replied to the solicitors, saying that their records showed that they had only held the Directorate's files between 20 January and 8 February. On 1 August the solicitors told the Ombudsman's staff that Mrs L had not met herself any of the costs of their work on her behalf.

Findings

23. It took nearly 10 months before the embassy were in a position to act on the adjudicator's determination made on 29 March 1999. The Permanent Under Secretary at the Home Office has acknowledged that, even had the Directorate sent to the entry clearance officer by 7 April a copy of the determination and other supporting documents (and from their records it is not explicitly clear that that was done or on what date) that would not in itself have been sufficient for the embassy to act. Without an explicit direction about the third child, the Directorate's action would only have confirmed that they did not intend to appeal against the determination in favour of the four appellants (paragraph 5.17.1). In any event it is clear that any papers that the Directorate may have sent to the embassy in April 1999 did not reach them. Given the embassy's experience of difficulties caused by their issuing of entry clearances prematurely in the past (paragraph 5.15), I find no fault with them for insisting that they must have authorisation in the correct form from the Directorate before proceeding to issue the entry clearances in respect of all five people. I am also satisfied that between May 1999 when the solicitors first contacted them, and January 2000 when they finally received authorisation from the Directorate, the embassy made efforts to chase the Directorate for that. However the Directorate then failed to link all the embassy's communications on the matter to the relevant files. I am glad to note that the Directorate have now put in place arrangements for linking papers with files which they have said should stop the sorts of problems prevalent in Mrs L's case occurring again.

24. The Directorate's performance was particularly poor because they missed an opportunity to put matters right in June 1999 when the Member complained to them (paragraph 5.10). Had the Directorate, on receipt of the Member's letter, investigated the matter in more depth, they might not have drafted for the Parliamentary Under Secretary at the Home Office a reply for him to send to the Member which was inaccurate. As it was, the contents of that letter indicated that the Directorate had done their bit and that matters by then rested with the embassy, which was not the case. I welcome the arrangements that the Permanent Under Secretary at the Home Office has said that the Directorate have already put in place procedures for draft replies to ministerial correspondence to be checked by senior staff to prevent similar mistakes in future (paragraph 5.17.2). The Directorate's mishandling of correspondence on behalf of Mrs L, which I consider underpins the greater part of the delay in her case, merits my criticism. I welcome the Permanent Under Secretary at the Home Office's apologies to Mrs L and her representatives, which I am glad now to pass on through this report, for the anxiety and inconvenience that their failings caused to her and her family.

25. Although I do not lay blame for the substantive delay in Mrs L's case at FCO's door, there were nevertheless some shortcomings in their performance. I do not criticise the embassy for deciding that it was too early to chase the Directorate at the time that they received the solicitors' letter of 8 April (paragraph 5.9), but they would have done better to reply giving them the explanation that they gave them on 13 May when the solicitors telephoned them for a response. The embassy have acknowledged that some of their responses to the solicitors could have been fuller (paragraph 5.15). The Permanent Under Secretary at FCO has acknowledged the correspondence unit's failure to reply to letters from the Member and the solicitors (paragraph 5.18.3). I agree that, given the efforts that the embassy were making at the time to chase matters, however, that that failure does not seem to have contributed materially to the overall delay in the entry clearances being issued. I am glad now to pass on through this report the Permanent Under Secretary at FCO's apologies to Mrs L and her family and to the Member for their shortcomings in respect of the handling of correspondence in the case.

26. I was glad to note that the Directorate have instructed their staff since the determination of Mrs L's appeals to issue letters covering positive appeal determinations that they are sending to embassies. I was also glad to learn that as a result of Mrs L's case, FCO and the Directorate are reviewing together their procedures for handling successful appeals (paragraphs 5.17.1 and 5.18.4). I asked the Permanent Under Secretaries for an update as to whether they had made any progress in that area, and in particular whether they saw any scope for instituting an agreed timescale after which embassies could safely assume that the Directorate would not be instigating further appeals, as the embassy had suggested (paragraph 5.15) to prevent such delays as happened in Mrs L's case occurring in future. In reply the Permanent Under Secretary at the Home Office told me that last year, the Directorate's presenting officers' units had conducted a full review of procedures and had issued new instructions to presenting officers in July last year which should prevent any repetition of the type of oversight which had led to entry clearances not being issued in Mrs L's case. He said that it was now the responsibility of presenting officers to evaluate each appeal determination and to decide whether to appeal to the Immigration Appeal Tribunal. If no appeal was made (as in Mrs L's case) the presenting officer would send a copy of the determination to the entry clearance officer together with relevant minutes from the file and a covering letter asking him/her to act in accordance with the adjudicator's directions and/or conclusions. The Permanent Under Secretary said that the evidence of the past 12 months had been that the system was effective. Regular checks had been made to ensure that presenting officers were adhering to the instructions, and no further instances of entry clearance officers failing to receive proper instructions had come to light. In the circumstances, the Permanent Under Secretary said he saw no need to institute an agreed timescale after which embassies could safely assume that the Directorate would not be instituting further appeals. The Permanent Under Secretary at FCO told me that the FCO view was also that the new system had been effective and that the alternative idea of a safety net of agreed deadlines therefore fell away: indeed, he thought they might in practice impose unnecessary delay. The Permanent Under Secretary was also not aware of any recurrence of a problem of the kind that Mrs L had faced. I was glad to hear those responses.

27. I turn next to the matter of redress. What consequence did the delay in Mrs L's case cause for her and her family? I note that the embassy regarded it as reasonable to allow the Directorate at least a month after the appeal determination to send them authorisation to issue entry clearances (paragraph 5.15), and that in their experience between two and three months was not unusual (paragraph 5.9). On that basis, therefore, even by allowing the Directorate the maximum timescale that FCO have indicated is normal, it still seems reasonable to conclude that in Mrs L's case, where the issue of authorisation in the correct form took over nine months, the Directorate's failings caused an additional period of delay above what was usual of at least six months during which her family were prevented from joining her in the UK. The solicitors have argued that Mrs L had been sending US$200 a month to her family during that delay period (paragraph 5.19). Although Mrs L does not have receipts to prove that, I found the solicitors' account of the means by which in their experience Somali refugees send money to their families abroad persuasive. The solicitors have argued that Mrs L's family members would have been eligible to income support once in the UK and that therefore the Directorate's delays have caused Mrs L to have to send money abroad which she would not have had to send had her family been here. In the circumstances I asked the Permanent Under Secretary at the Home Office if he would agree to make an ex gratia payment to Mrs L of US$1,200 which represents the total sum that by Mrs L's account she sent abroad during the six months' delay caused by the Directorate, if they were shown evidence that the family members who had joined Mrs L on 19 June had been assessed as being entitled to benefits including income support since their arrival. In reply the Permanent Under Secretary said that the Home Office accepted that the delay in granting entry clearance had led to additional costs for Mrs L. The Directorate were therefore prepared to offer Mrs L an ex gratia payment of £800 (US$1,200), subject to them seeing the evidence that I have described above. I welcome that offer.

28. I also considered that during the six months' delay caused by the Directorate the solicitors had had to write letters to the embassy, FCO in London and the Member chasing the matter which they would not had to have done but for the Directorate's mishandling. However, since Mrs L has been legally aided (paragraph 5.22), I do not consider that the Home Office should meet the costs of that correspondence. The solicitors have also described the distress that the delay in her case caused to her and her family (paragraph 5.20). In the circumstances I asked the Permanent Under Secretary at the Home Office if he would agree to make an ex gratia payment in recognition of the distress and anxiety that the Directorate had caused to Mrs L and her family over the delay period of six months. In reply he said that he accepted that the delay in granting entry clearance had caused Mrs L considerable anxiety about her immediate family, and that he was prepared to offer a consolatory payment of £100 in recognition of that. I welcome that further offer.

29. There is one final matter. The solicitors have said that the Directorate have still to process applications for further leave to remain made by Mrs L and two dependants in November 1998 and that they have failed to answer correspondence on the matter (paragraph 5.22). I asked the Permanent Under Secretary of State at the Home Office why processing of those applications had been delayed and when Mrs L could expect them to be determined. In reply he said that the Directorate's enquiries had revealed that Mrs L had handed in an application to their public enquiry office on 4 November 1998. He said that regrettably there was no trace of that application, or of any correspondence from the solicitors enquiring about it. However, following a change in policy announced in an Immigration and Asylum White Paper in July 1998, Mrs L was entitled to indefinite leave to remain. The Permanent Under Secretary said that the Directorate's senior caseworker dealing with the case had been in touch with Mrs L's solicitors and was arranging for indefinite leave to be granted to her and her dependents as quickly as possible. I welcome that development.

30. I was surprised to learn that, by the solicitors' account, the Directorate had attributed the delay in processing applications for further leave to remain from Mrs L and her dependents to the relevant file being with the Ombudsman's staff, when the Directorate's files had only been with them for approximately two and a half weeks (paragraph 5.22). This is the second case that I have seen recently in which allegedly the Directorate have attributed delay in the substantive matters of a case to the Ombudsman's Office having the file for a prolonged period in circumstances where that had not been so. The Ombudsman's intervention should not cause the cessation of routine action on a case. I asked the Permanent Under Secretary if he would ensure that Directorate staff did not give complainants the impression that delays in their case were due to the Ombudsman's intervention where that was not so. In reply he apologised for the misleading information given in Mrs L's case. He said that a failure to record properly the location of the papers had led caseworkers to advise the Directorate's enquiry bureau that the files had still been with the Ombudsman and that that information had been passed on to the solicitors. The Permanent Under Secretary said that he entirely agreed that intervention by the Ombudsman should not delay routine action. Where there was outstanding action, files were sent to appropriate caseworkers to deal with on return from the Ombudsman. In Mrs L's case, since there had been no apparent outstanding action, the papers had been held pending the next stage of the Ombudsman's investigation process.

Conclusion

31. I regard the Permanent Under Secretaries' apologies to Mrs L; the Home Office's offers of ex gratia payments in respect of financial loss and in recognition of distress and anxiety caused to her; the new arrangements for acting on successful appeals against refusal of entry clearance; the Directorate's commitment to issue indefinite leave to remain to Mrs L and her two dependents as soon as possible; and the Directorate's wider recovery action to improve their service to be a suitable outcome to a justified complaint.

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Last updated: 4 April 2005