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Selected Cases and Summaries of Completed Investigations - April to September 2000
Volume 3 - 3rd REPORT - SESSION 2000-2001
Chapter 1
HOME OFFICE
6. Case No. C.1441/00
Immigration and Nationality Directorate: delay and mishandling in processing applications for indefinite leave to remain in the United Kingdom and for travel documents
Summary
The Ombudsman upheld a complaint from Mr and Mrs K that the Immigration and Nationality Directorate of the Home Office had mishandled and delayed their applications for indefinite leave to remain in the United Kingdom and for travel documents. He found that the Immigration and Nationality Directorate had taken longer than they should have done to deal with both applications and that they should have given the applications for travel documents priority but had not done so on account of work pressures they had been under at the time. That had led to Mr and Mrs K needing to get more evidence about Mrs K's mother's illness to persuade the Immigration and Nationality Directorate of the urgency of their request. The Permanent Under Secretary at the Home Office blamed the Immigration and Nationality Directorate's failings on upheaval caused by their reorganisation into a single integrated casework directorate. He offered apologies to Mr and Mrs K for the mishandling and offered to make them an ex gratia payment of £750 in recognition of the distress caused to them by being unable to travel to see Mrs K's dying mother or attend her funeral because they did not have travel documents. In addition, he agreed to consider making them ex gratia payments for the costs incurred in visiting the Immigration and Nationality Directorate's offices to try to expedite the applications and in making telephone calls to them on production of further evidence. He also agreed to pay Mr and Mrs K £35 for the costs of obtaining and faxing from Bosnia two additional medical reports as evidence of Mrs K's mother's condition which he agreed that they would not have had to provide but for the extreme situation in the Immigration and Nationality Directorate at the time. The Permanent Under Secretary also described the steps the Immigration and Nationality Directorate had taken to improve their service.
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Full text
1. Mr and Mrs K complained through their solicitors that delays and mishandling by the Immigration and Nationality Directorate (the Directorate) of the Home Office had caused Mr and Mrs K to spend unnecessary time and expense in pursuing their applications for indefinite leave to remain in the United Kingdom (UK) and travel documents. They said that the Directorate's shortcomings had also prevented Mrs K from visiting her dying mother and from attending her funeral.
2. My investigation began in March 2000 after I had received the comments of the Permanent Under Secretary of the Home Office. 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.
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Background
3. 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. Under sections 3(3)(a) and 4(1) of the 1971 Act the Secretary of State may, once a person has entered the UK, vary the conditions or duration of limited leave by enlarging or removing the time limits 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. The Directorate may, when refusing a person asylum, decide instead to grant exceptional leave to remain in the UK outside the Immigration Rules because of genuine humanitarian factors. The Directorate may issue a travel document to a person who is lawfully resident in the UK and who, among other things, either has been accepted in this country as a refugee, or following an unsuccessful asylum application has been granted exceptional leave to remain after the implementation of the Asylum and Immigration Appeals Act 1993. Between December 1998 and February 1999 the Directorate undertook a major reorganisation. All of the Directorate's caseworking sections dealing with, among other things, applications for variation of leave to remain and for issue of travel documents were amalgamated into one integrated casework directorate.
4. The Directorate's complaints unit was set up primarily to investigate complaints about the conduct of staff, that is complaints about the manner in which Directorate officers, or those appointed to act on their behalf, treat anyone with whom they deal. Complaints about administrative and operational matters, including delays caused by backlogs of work, fall outside the remit of the complaints unit and are dealt with by the relevant operational section of the integrated casework directorate.
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Investigation
5. An edited extract from the Permanent Under Secretary of State at the Home Office's comments on the complaint is annexed to this report. The Ombudsman's staff have examined the Directorate's papers about Mr and Mrs K's case which confirm that the account given in the complaint (in bold text) and the Permanent Under Secretary's comments are an accurate record of the key events.
Further enquiries
6. The solicitors said that the purpose of Mr K's visit to the Directorate's offices on 8 July had been to try to extract a decision on his and his wife's application for indefinite leave to remain and to submit an immediate application for a travel document, along with medical evidence to ensure that it was expedited. At the time, it had been impossible to get through to the Directorate on the telephone; indeed, the solicitors said that it had been very expensive for Mr and Mrs K who, rather than reaching an engaged signal on the numerous occasions that they had telephoned the Directorate, had been put through to a recorded announcement about the Directorate lines being busy and that the caller should try again. Therefore they had been charged for the call on each occasion that they had failed to get through to the Directorate; the Ks could provide telephone bills to prove that if necessary. The solicitors said that in their experience sending a fax or recorded delivery letter to the Directorate was no guarantee that it would be looked at or that action would be taken. Not only had the Directorate failed to acknowledge the indefinite leave applications made on 12 October 1998 and the solicitors' three chasing letters sent in February, March and April 1999 (paragraph 6A.1 of the annex), but they had not replied to the urgent fax they had sent on 6 July. Therefore the only option for Mr K to try to get a decision from the Directorate had been to visit them in person on 8 July. The solicitors said the indefinite leave applications had been extremely simple and there was no reason why it should have taken the Directorate nine months to deal with it.
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7. The solicitors said that at that time the Directorate had been taking six months to process travel document applications, but the solicitors said that in the past the Directorate's travel documents section had told them that if there was a desperate need for an individual to travel, such as in Mrs K's case because her mother was gravely ill, then they would process the travel document immediately. On 8 July Mr K had travelled to the Directorate alone, by car (which was the cheapest method) and had stayed with friends. The solicitors said that Mr K was claiming income support and also took home wages of £15 per week net; Mrs K does not work.
8. The solicitors said that Mr and Mrs K had provided four medical reports from Bosnia. The cost of each report had been approximately 30 deutschmarks, a total of 120 deutschmarks or approximately £50. Two of the reports had been sent by fax (one to the solicitors' office and one to the Member). Faxing from Bosnia had been extremely expensive, costing in total around £40, and Mrs K's brother had had to incur those costs on top of paying medical bills for his dying mother. Mrs K had wanted to reimburse her brother for those costs but she did not have documentary proof of the costs of the medical reports and faxes. The solicitors said that on 15 July Mr and Mrs K had faxed to the Directorate a note explaining the urgency of the travel document application; a medical report; and a translation. On 16 July Mr and Mrs K had both gone to the Directorate to try to expedite the applications for travel documents and to deliver the final medical report by hand. They had once again travelled by car and stayed with friends. The solicitors said that Mr and Mrs K had decided to make that second visit after a telephone conversation that Mr K had had with a member of staff in the public enquiry office on 14 July (paragraph 6A.3 of the annex). That staff member had been extremely sympathetic and had suggested that they deliver in person medical evidence about Mrs K's mother with a translation; she had said that nothing could be done to speed things up without documentary evidence. She had not suggested that Mr K could fax the documents instead of travelling to the Directorate, and indeed the solicitors said that Mr and Mrs K had already faxed two such documents to the Directorate whose travel document section had told the Member's office that they had received no faxed medical reports. Mr and Mrs K had sent the faxes from a friend's office and no longer had a copy of them or proof that they had sent them. Mrs K had accompanied her husband on the second visit to the Directorate because she had hoped that she would be able to collect her travel documents and fly straightaway from Heathrow to Croatia where her mother was dying in hospital. Mr K had accompanied his wife because she does not drive and she had been in a distressed emotional state; she had not been able to travel on her own and had needed her husband to support her.
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Findings
9. I welcome the Permanent Under Secretary's acknowledgements that the Directorate took longer than they should have done to deal with the applications for indefinite leave to remain and for travel documents made by Mr and Mrs K; that the Directorate should have acknowledged receipt of the applications for indefinite leave to remain and replied to the solicitors' letters about the applications (paragraph 6A.5 of the annex); and that the Directorate should have given the applications for travel documents priority but had not done so on account of pressures they had been under at the time (paragraph 6A.8 of the annex). Those shortcomings merit my criticism. I am glad now to pass on to Mr and Mrs K through this report the Permanent Under Secretary's apologies for the Directorate's failings. This is one of a number of cases I have seen in which the Permanent Under Secretary has blamed failings by the Directorate on upheaval caused by their reorganisation into one integrated casework directorate. I welcome the improvements that the Permanent Under Secretary has said that the Directorate have made in their handling of new applications for travel documents and for giving priority to urgent requests (paragraph 6A.12 of the annex). I hope that those improvements will lessen the scope in future for others to suffer the same difficulties as Mr and Mrs K.
Back to top 10. What consequences did the Directorate's shortcomings in Mr and Mrs K's case cause for them? I deal first with the two visits that they made to the Directorate on 8 and 16 July. By the solicitors' account, it was impossible at the time that Mr and Mrs K applied for travel documents to make contact with the Directorate by telephone or to get a reply to faxes and letters - this case is one of many I have seen in which applicants have complained of similar problems. In those circumstances, and given Mr and Mrs K's urgent need to travel because of Mrs K senior's serious illness, I do not find it unreasonable that Mr K should have seen a need to go in person to the Directorate on 8 July to try to expedite the applications. I note also that the Directorate did not reply to the solicitors' fax of 6 July (paragraph 6A.2 of the annex) to discourage Mr K from making his intended trip. As it was, it seems that Mr K's visit did serve to prompt the Directorate to process the applications for indefinite leave to remain, but because the travel document public caller unit was closed he was unable to submit the applications for travel documents at the same time. As to Mr and Mrs K's visit to the Directorate of 16 July, given the lack of corroborating evidence in the Directorate's files, I am unable now to determine the exact content of the conversation that the solicitors have described between Mr K and the Directorate on 14 July in which they said the Directorate told him to visit them again to hand-in documents in person. I note that by the Directorate's account their staff should have known at that time that there was no provision in their main public caller unit for visitors to hand in documents relating to a travel document application. However it seems to me that in circumstances where, by the solicitors' account, the Directorate continued to ignore faxes sent to them on 15 July, and further, given the increasing desperation and urgency of the situation for Mrs K, that it was not unreasonable even without encouragement from the Directorate that Mr and Mrs K should have seen it necessary to make a further trip to the Directorate on 16 July in a bid to prompt them into action. All that being so, I considered that had it not been for the chaotic situation in the Directorate at the time of Mr and Mrs K's urgent need to travel, in all likelihood the applications might have been expedited after representations made by telephone and fax without the need for Mr and Mrs K to incur the costs of travelling to the Directorate twice to try to progress matters. In the circumstances, I asked the Permanent Under Secretary if he would be prepared to reimburse Mr and Mrs K for their reasonable travel costs incurred in making their two trips to the Directorate's offices in July, and for any loss of earnings that Mr K may have incurred by making them (if Mr and Mrs K could provide details of those costs). I also asked him if he would reimburse Mr and Mrs K for the cost of their telephone calls to the Directorate that had resulted in them being put through to their answer machine on numerous occasions (paragraph 6.6). In reply he said that taking into account their failed attempt to contact the Directorate by telephone and fax, he accepted that it was not unreasonable for Mr and Mrs K to have made the two journeys to the Directorate's offices to hasten their applications in view of the compassionate circumstances which prevailed. He therefore agreed to consider reimbursing Mr and Mrs K travel costs and loss of earnings, if they provided documentary evidence or a reasonable written estimate. The Permanent Under Secretary said that he also accepted that had the delays not occurred, Mr and Mrs K would not have had to make telephone calls to the Directorate; therefore he would consider covering those costs also on production of receipts, or a reasonable written estimate. I welcome those offers.
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11. As things turned out, despite all the efforts made by Mr and Mrs K, the Member and the solicitors, the Directorate did not issue travel documents until 21 October, some three months after Mrs K's mother had died. I welcome the Permanent Under Secretary's offer of £750 to Mrs and Mrs K in recognition of the distress they suffered because they were unable to visit Mrs K's mother before she died or to attend her funeral. Mr and Mrs K sought a refund for Mrs K's brother of the costs of obtaining and faxing to the Directorate the four medical reports in connection with the applications for travel documents. The Permanent Under Secretary has said that when Mr and Mrs K applied for those documents, it was at a time of extreme pressure and that under normal circumstances such requests would have been given priority. That implied to me that in normal circumstances the burden of proof on Mr and Mrs K of the graveness of Mrs K's mother's illness might not have been so great as it was in July 1999; and that in such circumstances the first medical document that Mr K had delivered to the Directorate and which had prompted them to process the indefinite leave applications as a priority should also have prompted them to afford the same priority to the travel document applications. It seemed to me, therefore, that in all likelihood Mr and Mrs K would not have had to provide more than one medical report from Bosnia to satisfy the travel documents section of the graveness of the situation but for the pressurised circumstances in that section at that time.
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12. In those circumstances, I asked the Permanent Under Secretary if he would reimburse Mr and Mrs K for the costs of production, and of transmission to the UK, of the additional three medical reports they had provided to the Directorate, which it seemed to me that Mr and Mrs K had incurred only as a result of the extreme situation in the Directorate at the time. In reply, he said that the Directorate could only trace from their records three reports in total: Mr K had taken a copy of one report to the Directorate's offices on 8 July 1999; Mr and Mrs K had taken the original of that report and another further original report there on 16 July; and the Member's office had faxed the third to the Directorate on 22 July, it appeared via the solicitors. The Permanent Under Secretary said that it appeared that the two reports that Mr and Mrs K had taken to the Directorate on 8 and 16 July had been sent to them by post from Bosnia, while the report faxed on 22 July appeared to have initially been faxed from Bosnia, although that was not entirely clear. The Ombudsman's staff put that to the solicitors who said that Mrs K was adamant that there had been a fourth report which had been faxed from Bosnia to the Member's office, but the Member's office told the Ombudsman's staff that they could not find a copy of it. In the circumstances the Permanent Under Secretary said that he accepted that the two additional reports that had been produced to support the travel documents applications would not have been needed if the pressures on the Directorate's travel documents section had not resulted in the Directorate setting such stringent criteria for giving priority to applications. In those circumstances, he agreed that the Directorate should reimburse Mr and Mrs K for the costs of obtaining the two additional medical reports, and for faxing one of them from Bosnia. In the absence of receipts, he was prepared to offer an ex gratia payment of £35, based on the costs mentioned in paragraph 6.8. In the absence of a copy of any fourth report or of receipts, that seems reasonable to me.
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Conclusion
13. I regard the Permanent Under Secretary's apologies to Mr and Mrs K; the Directorate's offer of an ex gratia payment in recognition of the distress caused to them and their commitment to further consider their claim for actual financial losses, including the cost of obtaining and faxing medical reports from Bosnia; and the wider recovery action that the Directorate have undertaken to improve their service, to be a suitable outcome to a justified complaint.
Annex – Edited extract from the Permanent Under Secretary of State at the Home Office's comments on the complaint
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