Redress sought
4.2 The solicitors sought full redress for Mrs T and her son, including reimbursement of lost benefits which they calculated at £6,200 (that is, £80 per week for a period of 18 months’ delay between IND keeping Mrs T’s standard acknowledgement letter and them formally notifying her of their refusal of her asylum application).
4.3 My investigation began in May 2000 after I had received the comments of the Permanent Under Secretary of State at 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
Background
4.4 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 United Kingdom (UK) or to remain for a limited or indefinite period. Under section 4 of the Act, the Secretary of State has the power to vary the duration or conditions of a person’s leave to remain in the UK. Paragraph 327 of the Immigration Rules defines an asylum applicant as a person who claims it would be contrary to the UK’s obligations under the 1951 United Nations Convention and Protocol relating to the Status of Refugees for him to be removed from, or required to leave, the UK. Under section 8(3) of the Asylum and Immigration Appeals Act 1993 a person refused asylum is entitled to appeal against that decision within seven days of receiving from IND a notice which they are required to send setting out formally their decision to refuse asylum, and the appeal rights against that decision. The Immigration (Variation of Leave) Order 1976 extends the leave (and any other conditions attached to the leave) of a person who has made an application during the currency of a previous leave to enter or remain, until 28 days after the date on which the application is decided. Under section 3(5)(a) of the Immigration Act 1971, a person may be liable to deportation if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave, or remains beyond the time limited by the leave.
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4.5 When IND receive an asylum application, they issue the applicant with a standard acknowledgement letter. The letter says that the applicant may not take paid or unpaid work unless IND give them permission to do so. If an asylum applicant applies for work, he must include with the application a copy of the standard acknowledgement letter endorsed with IND’s permission. IND will normally give an asylum applicant permission to work if they have not made a decision on the asylum application within six months of receiving it; or if they have refused the asylum application and the applicant has appealed, even when that is less than six months after they received the original application.
4.6 Under the Asylum and Immigration Act 1996 and Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996, asylum applicants who claim asylum immediately on arriving in the UK, and who satisfy “priority need” criteria and who are covered by homelessness legislation, are entitled to claim welfare benefits including income support and housing benefit. The 1996 Act withdrew the ability to claim such benefits from people who applied for asylum after arriving in the UK. However, in 1996 the High Court ruled that local authorities had a duty to provide separate assistance so that all asylum applicants were supported, regardless of when they had made their application, under section 21 of the National Assistance Act 1948 for the applicants, and under the Children Act 1989 for their families. Those granted refugee status are entitled to claim benefits.
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4.7 Department of Social Security guidance on financial redress for maladministration says the following:
“…. loss of statutory entitlement refers to cases where official error has led to a customer losing entitlement to a benefit he/she would otherwise have received had error not occurred or the case had been actioned timeously ….. If it is established that error has occurred and the customer has suffered a loss of entitlement then the payment made should be equal to the amount that the customer would have received had benefit been paid correctly”.
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The Home Office’s comments on the complaint
4.8 An edited extract from the Permanent Under Secretary at the Home Office’s comments on the complaint is annexed to this report. The Ombudsman’s staff have examined IND’s papers about Mrs T’s case, which confirm that the account given in the complaint (in bold) and the response is an accurate record of the key events
Further enquiries
The Ombudsman’s staff asked IND for more information about the circumstances of the retention of Mrs T’s standard acknowledgement letter when she had visited them on 29 October 1998 (paragraph 4.D of the annex). IND said that at that time, if their staff had retained their standard acknowledgement letter, they would have told the applicant to contact a solicitor. If the solicitor had then got in touch with IND, the casework team dealing with the application would have explained the position to him or her. IND said that if Mrs T had asked what would happen to her application for permission to work, they would have told her that if her asylum application were refused, they would also refuse her permission to work. IND said that Mrs T has appealed against the decision to refuse asylum and that she would be entitled to work while that was pending (paragraph 4.5).
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4.10 The solicitors told the Ombudsman’s staff that Mrs T had gone to IND in October 1998 to ask for permission to work because a friend had told her that permission would be granted if they took over six months to deal with an asylum application. Because she had not had permission to work, the solicitors did not think that Mrs T had ever been offered work which she had been unable to take up. Since being granted permission to work in 2000, Mrs T had had some part time work, which was all she could do now that her son was with her. The solicitors said that the figure that they had claimed on Mrs T’s behalf for financial loss (paragraph 4.2) was what they considered to be a “conservative” estimate of lost benefit.
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Findings
Reasons for delay in Mrs T’s case
4.11 The solicitors complained that IND had unreasonably delayed in telling Mrs T that they had refused her asylum application, and blamed her inability to work or claim benefits on IND’s retention, without explanation, of her standard acknowledgement letter. There was a delay of some two years between IND’s decision on 11 March 1998 to refuse Mrs T’s asylum application and the Ombudsman raising her complaint with them on 22 March 2000, which the Permanent Under Secretary said prompted IND to start consideration of enforcement action in Mrs T’s case (paragraph 4.G of the annex), and then to communicate the asylum decision to her just over a month later. Although IND said in their letter of 29 September 1999 to the Member that they had refused Mrs T’s asylum application (paragraph 4.F of the annex), she needed formal notice of that and appeal papers before she could appeal against the decision. It seemed to me, therefore, that the effect of IND’s delay was to prevent Mrs T from appealing against that decision two years earlier than she eventually did.
4.12 IND have accepted that, after taking the decision to refuse Mrs T asylum, they should have acted sooner to take decisions about enforcement and deportation action (paragraphs 4.I and 4.J of the annex). I criticise their delay and I welcome the Permanent Under Secretary’s unreserved apologies for it (paragraph 4.J of the annex) which I am glad now to pass on to Mrs T. This is one of a number of cases I have seen in which the Permanent Under Secretary has blamed failings by IND on upheaval caused by their reorganisation into one integrated casework directorate (paragraph 4.L of the annex). I welcome the efforts that he has said that they have made generally since to improve productivity and levels of service and, particularly in the light of Mrs T’s complaint, I welcome the commitment to speeding up the taking of enforcement and deportation decisions (paragraph 4.Q of the annex).
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Effect of IND’s delay: benefits
4.13 What effect did IND’s delay, resulting in Mrs T’s inability to appeal against their refusal decision for two years after they had made it, have on her? I deal first with the effect that the delay had on Mrs T’s benefits position as an asylum seeker. The solicitors sought £80 per week for Mrs T for benefits lost before she received formal notification of the determination of her application (paragraph 4.2). However, I have found that legislation dictates that because Mrs T applied for asylum after arriving in the UK (paragraphs 4.A and 4.B of the annex), she was not entitled to benefits (paragraph 4.6). It follows that I see no way in which I might invite IND to pay to Mrs T the sum of £80 in lost benefits that the solicitors sought for her for each week of the delay, since that represents a sum to which, even without IND’s maladministration, she would not have been entitled prior to being granted refugee status. As the Permanent Under Secretary has pointed out, Mrs T may have been entitled to claim local authority assistance. In commenting on my draft report, the Director General of IND told me that, under the provisions of section 94(3) of the Immigration and Asylum Act 1999, a person ceased to be an asylum seeker (for the purposes of support) 14 days after he or she had been notified of the decision on his/her asylum claim, unless he/she had lodged an appeal. IND considered the day on which they notified the claimant of their decision to be the day the claimant received the appealable decision (that is, the reasons for refusal letter and appeal notice – paragraph 4.4). Consequently local authorities, or the National Asylum Support Service, which since 2000 had administered support to those who had applied for asylum in-country, should continue to treat an in-country asylum applicant such as Mrs T as an asylum seeker for the purposes of support, and accordingly continue to provide support uninterrupted, even though IND had recorded a decision to refuse asylum. However, the Director General said that, if the person subsequently failed to appeal within 14 days of the day that he/she received notification of the appealable decision, then support would be ended. In those circumstances, I conclude that I have not seen evidence that Mrs T’s entitlement to support from a local authority or the National Asylum Support Service would have been affected in any way by IND’s actions in her case.
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4.14 Should Mrs T’s appeal succeed and she be granted asylum, she will become eligible to claim benefits. In such circumstances it seems to me that IND’s delay, which deprived Mrs T of the opportunity of appealing for two years, would also effectively have denied her the opportunity to claim benefits as a refugee for the same period. I note that the Permanent Under Secretary has said that IND would not normally offer compensation for loss of benefits as he regards that as a failure to make a gain rather than actual financial loss (paragraph 4.K of the annex). However, it seemed to me that, rather than failing to make a gain, in circumstances in which Mrs T gained refugee status on appeal, she would have suffered a loss of entitlement to benefit by the Department of Social Security definition (paragraph 4.7) for a two year period. Therefore I asked the Permanent Under Secretary whether in principle he would agree to consider a claim from Mrs T for an ex gratia payment for the benefits that she would have been entitled to in the two years immediately prior to the grant of refugee status if (a) Mrs T’s appeal against the refusal of asylum were to succeed, and (b) she were also able to provide evidence (from the Benefits Agency and/or other relevant bodies) to prove (i) her eligibility for benefits in circumstances where she had gained no employment, and (ii) the rates at which they would have been paid. The Director General replied on the Permanent Under Secretary’s behalf that, until Mrs T’s appeal had been determined, he could only speculate about her future immigration status and entitlement to benefits. At this stage he felt he could say no more than that he would be prepared, should the appeal be successful, to give further consideration to the matter of compensation, in the light of all relevant circumstances, but without any guarantees that IND would consider it appropriate to make any such payment. That seems to me to be a reasonable response for the time being.
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Effect of the delay: entitlement to work
4.15 Did IND’s delay also have any effect on Mrs T’s entitlement to work? Mrs T asked for permission to work after her asylum application had been refused, and her request stood to be refused until she appealed against that decision. Therefore it seemed to me that the delay which had prevented Mrs T from appealing for two years had also potentially deprived Mrs T of the opportunity to work for two years. That said, the solicitors’ claim for redress on Mrs T’s behalf concentrated on benefits. In addition, I note that the solicitors have said that Mrs T did not have any job offers in October 1998 when she asked IND for permission to work, and there can be no guarantee that she would have secured a position, or of what the remuneration for that would have been, had she gained such permission earlier than she did. All that being so, I conclude that I have not seen evidence that the delays led directly to Mrs T losing income by being unable to work before becoming an appellant, and I do not propose to ask the Permanent Under Secretary to make a financial award to Mrs T in respect of that.
Retention of standard acknowledgement letter
4.16 I turn next to the solicitors’ complaint that on 29 October 1998 IND had retained Mrs T’s standard acknowledgement letter without explanation other than that she should contact her solicitors. Since that advice was consistent with IND’s instructions to staff in such circumstances (paragraph 4.D of the annex), I find no maladministration in that. The Permanent Under Secretary has said that the retention of Mrs T’s standard acknowledgement letter did not in itself have any effect on her eligibility to work or to claim benefits (paragraph 4.D of the annex): I have seen no evidence that leads me to disagree with him. Rather I have already found that any effect on Mrs T’s eligibility to work and to claim benefits arose from the delay in notifying her of the decision on her asylum application.
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Correspondence
4.17 I turn next to the matter of IND’s handling of correspondence about Mrs T’s case, which in the case of letters from both the solicitors and the Member was poor. I welcome the Permanent Under Secretary’s apology for the failure to answer Mr T’s solicitors’ two letters chasing the matter (paragraph 4.J of the annex). I have seen a number of cases in which IND have mishandled correspondence about applications, and I asked the Permanent Under Secretary what the current position was with regard to IND taking measures to improve their handling. The Director General said in reply that all correspondence was received in the document management centre and was opened on the day it was received. Correspondence about an asylum case that was in action was sent to the location of the file (usually one of the case management units) to be answered by the relevant caseworker. If an asylum case was awaiting consideration, it was possible that IND might not send a reply to correspondence about it until the case was allocated to a caseworker for action. Where correspondence was received for an asylum file on which there was no current action, the file was called from storage and sent to the appropriate operational area for the correspondence to be considered. The Director General said that, while IND made every effort to deal speedily with correspondence about asylum cases, in accordance with ministerial directives, they had to give priority to processing asylum applications. He recognised that that would inevitably mean that some correspondence would not be answered as quickly as they would like, but he said that IND were still aiming to meet the target set out in the Government’s White Paper published in July 1998 (paragraph 4.N of the annex) of substantially reducing their backlogs of outstanding asylum cases by April 2001. Once they had done so, that would not only lessen the amount of correspondence about cases, but would also enable IND to ensure that that correspondence was dealt with within a reasonable timescale.
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4.18 In Mrs T’s case it seemed to me that, had IND replied to the solicitors’ letter of 21 July 1998 saying that they would not grant her permission to work, she would not have needed to make her visit on 29 October. That being so, I asked the Permanent Under Secretary whether he would consider making an ex gratia payment to Mrs T for any costs she had incurred in making that visit if she could provide receipts for, or a reasonable estimate of, those costs. In reply the Director General said that it had been Mrs T’s decision to visit IND: they had not invited her to do so and she could have asked for permission to take employment by telephone or letter. However, the Director General accepted that, as IND had not replied to the solicitors’ letter of 21 July, Mrs T might have felt that the only way she could obtain an answer was by a personal visit. In the circumstances, he said he was prepared to consider reimbursing Mrs T’s reasonable costs associated with the visit on production of receipts for, or a reasonable estimate of, those costs. I welcome that offer.
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Effect of IND’s enforcement backlog on permission to work for other applicants
4.19 I consider next the wider position for applicants in a similar position to Mrs T. Because IND had determined Mrs T’s application within six months of it being lodged, technically she was not eligible for permission to work. However, the Permanent Under Secretary has told me that, because the refusal had not actually been served and Mrs T had therefore been unable to appeal (at which time she would have been eligible for permission to work) when that anomaly came to IND’s attention in January 2000, they decided to grant her permission to work in advance of her becoming an appellant (paragraph 4.D of the annex). It seemed to me that Mrs T was in exactly the same position at that time as she had been in October 1998 when she had first approached IND about permission to work and that therefore they might equally have granted it to her at that time. I asked the Permanent Under Secretary whether he agreed with that and, if so, whether in the circumstances he also agreed that applicants who in future found themselves in the same situation as Mrs T (that is, that IND had decided to refuse their application but they had not been able to appeal and gain permission to work because of delays in instigating enforcement action) should be granted permission to work if they sought it in advance of submitting an appeal. In so doing, I recognised that IND might still wish to retain standard acknowledgement letters, on which permission to work is usually stamped (paragraph 4.5), in advance of instigating enforcement action. However, it seemed to me that IND could issue separate work permits to those who asked for them, as they had intended to give Mrs T in January 2000 to Mrs T.
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4.20 In reply the Director General said that, once applications for permission to work from those whose asylum applications remained outstanding for six months without a decision, had been granted, IND did not withdraw the permission until the asylum claim had been finally determined. That would include cases where a decision had been made on the asylum application but that had not been served on the applicant, and while an appeal against a negative decision was outstanding. Permission to work was generally endorsed on the standard acknowledgement letter, but where that form was unavailable, permission to work could be granted by letter. However, the Director General said that a person who applied for permission to work after a decision had been made on the asylum application, but before it had been formally served, would not be given permission to work. I made further enquiries of IND, but they were unable to tell me why they had acted outside that policy in Mrs T’s case by deciding in January 2000 to grant her permission to work before they had formally served on her their decision to refuse her asylum claim.
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Conclusion
The Permanent Under Secretary has offered his unreserved apologies to Mrs T for the delays in her case, and has described the steps IND are taking to improve their performance. IND have offered to reimburse Mrs T for the reasonable costs of an unnecessary trip to their offices, and to consider further, should Mrs T’s asylum appeal succeed, the matter of possible compensation for benefits to which Mrs T might have been entitled if she had had the opportunity to gain refugee status two years earlier. Since I have not found the delay to have led directly to Mrs T incurring financial loss while her status remains as that of asylum seeker, I regard all that as a suitable outcome to the complaint.
Annex
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