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Home > Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - October 2000 to March 2001 - Case No. C.1851/00
Selected Cases and Summaries of Completed Investigations - October 2000 to March 2001
Volume 4 - 2nd REPORT - SESSION 2001-2002
Chapter 1
HOME OFFICE
5. Case No. C.1851/00
Immigration and Nationality Directorate: delay in dealing with an asylum application
Summary
Miss C complained that the Immigration and Nationality Directorate (IND) of the Home Office had delayed in dealing with her application for political asylum. She contended that, as a result, she had been unable to travel, in particular to visit her mother before she died, to attend her funeral and subsequently, to visit her mother’s grave; she had been unable to take up her preferred employment; she had received reduced rates of benefit and had been unable to arrange a mortgage; and her brother’s schooling had suffered. The Ombudsman upheld Miss C’s complaint that the delay of seven years in considering her asylum application was unreasonable. He did not find evidence that she had specifically been denied visiting her sick mother, obtaining a mortgage or taking up a particular job offer. He did however find that IND’s delay had inevitably meant that her ability to travel had been restricted and that she had received a reduced rate of benefit over a much longer period than she would otherwise have done. However, he also found that as a further consequence of the delay, Miss C had become eligible to be considered under the Government’s White Paper proposals “Fairer Faster Firmer – A Modern Approach to Asylum and Immigration”. As a result, she had been granted exceptional leave to remain in the United Kingdom. The Ombudsman accepted IND’s view that, were it not for their delay, Miss C would have been unlikely to have been granted that leave. In the light of that, while he did not discount in any way the suffering that Miss C has said the delay caused to her and her brother for an unreasonably prolonged period, he did not consider that there was sufficient evidence to indicate that the injustices caused to them were so exceptional as to have outweighed the benefit that the delay also conferred on them. Accordingly, he regarded the Permanent Secretary’s apologies to Miss C, for the unreasonable delay in considering her asylum application and the inconvenience that caused her, as a suitable outcome to her complaint. The Ombudsman also obtained an assurance from the Acting Permanent Under Secretary of State that, although a small number of cases continued to be found, IND had cleared the majority of the initial backlog of pre-1996 asylum cases. They treated the cases that were found as a very high priority.
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Full text
5.1 Miss C complained that the Immigration and Nationality Directorate (IND) of the Home Office had delayed in dealing with her application for political asylum. As a result, she had been unable to travel, in particular following the death of her mother; she had received reduced rates of benefit and had been unable to arrange a mortgage; and her brother’s schooling had suffered.
5.2 My investigation began in May 2000, once I had obtained comments from the then Permanent Under Secretary of State at the Home Office after the referral of the complaint to me by the Member. 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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Statutory and Administrative Background
5.3 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 United Kingdom (UK) or remain here for a limited or indefinite period. A person seeking entry to the UK, or who is already in the UK, may apply for political asylum. IND consider applications for asylum in accordance with the provisions of the 1951 United Nations Convention and Protocol relating to the Status of Refugees (the UN Convention), which sets out the criteria for doing so. Dependants of asylum seekers who also claim asylum having arrived in the UK will be granted leave to remain in line with the main applicant if his or her application is granted. A person whose application for asylum is rejected by IND is entitled to appeal against that decision to a special adjudicator under Section 8(2) of the Asylum and Immigrations Appeals Act 1993. On receipt of an appeal against refusal of asylum, the appeals support service will check that all the required documents have been received and then make up an appeal bundle. One copy of the bundle is sent to the Immigration Appellate Authority to enable the appeal to proceed; one is sent to the applicant or their representatives and one remains on file.
5.4 In July 1998 the Government announced in its White Paper “Fairer, Faster, Firmer – A Modern Approach to Asylum and Immigration” proposals for tackling a backlog of asylum applications which had built up. The White Paper set out the criteria for dealing with the oldest cases. For applications made between July 1993 and December 1995, if IND had not granted asylum, they then considered whether to grant exceptional leave to remain in the light of the delay and any compassionate or other exceptional circumstances. The process involved completion of a questionnaire updating details of the asylum claim, and citing any compassionate or other features linked to the delay or to an applicant’s ties with the UK.
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5.5 An asylum seeker may, depending, among other things, on the date of his/her arrival in the UK and whether he/she made his/her asylum application on arrival or in-country, be eligible for certain state benefits such as income support. In some circumstances the rate of benefit paid to an asylum seeker may be less than that to which the person would be entitled once he/she had secured refugee status or exceptional leave to remain. If IND take more than six months to determine an asylum application, they may grant an applicant permission to work in the UK. If an asylum applicant travels abroad before his/her application is determined, that application lapses.
Jurisdiction
5.6 Under section 12(3) of the Parliamentary Commissioner Act 1967, the Ombudsman has no power to question discretionary decisions (such as decisions on whether to grant asylum applications) taken without maladministration. Therefore my investigation has been confined to the administrative actions in processing Miss C’s application for asylum.
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Investigation
5.7 An edited extract from the response to the complaint by the then Permanent Under Secretary of State at the Home Office is annexed to this report. The Ombudsman’s staff have examined IND’s papers about Miss C’s case which confirm the account given.
Further developments
5.8 After IND had refused her asylum application, on 12 June 2000 Miss C wrote to one of the Ombudsman’s staff saying that she believed that IND should have refused her asylum claim in 1993. She said that they should have granted her four years exceptional leave to remain at that time so that she might have been entitled to “full rights” sooner. Miss C told two of the Ombudsman’s staff who interviewed her in October 2000 that, while she had been awaiting the decision on her asylum application, her brother’s schooling had suffered as he had been studying languages and had been unable to travel abroad on foreign field trips. She said that the delay had also prevented her from travelling. Miss C said that her mother had been in hospital suffering from a nervous breakdown, when she had died very unexpectedly in August 1994. Because of IND’s delay, she had been unable to visit her mother in hospital in Croatia, or attend her funeral. Miss C said she had not told IND of her mother’s hospitalisation or death, although she believed that her then solicitors may have done in August 1994. She said she would have gone to visit her mother in hospital and attended her funeral if she had had travel documentation, in spite of the personal risk she believed she may have faced in Croatia. Her relatives in Croatia had told her of her mother’s death on the same day, and it was customary for burial to take place one or two days after death. However, she had not applied to IND for permission to travel as she had believed that they would have taken too long to grant it. Miss C said that, at the time of talking to the Ombudsman’s staff, she had just returned from her first visit to her mother’s grave, and that she would have gone much earlier had her application been determined sooner. She had found her inability to do so for six years very distressing. She had not made any other firm travel plans while her application was outstanding as she had believed that there was no point in doing so.
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5.9 Miss C said that she believed that her inability to travel had also affected her education, as she had been unable to travel to France to study as part of a course she had been taking during 1993-1995. She had been at university, initially studying full-time, then part-time. She had completed a postgraduate course in 1998. In addition, Miss C said that she had been unable to apply for jobs that involved travel as she had wished, and therefore she believed IND’s delay had limited her job prospects, as many of the jobs she had wished to apply for, had required applicants to have indefinite leave to remain. She said that, had she been granted leave to remain while studying at postgraduate level up to 1998, she would have taken a job and continued to study part-time.
5.10 Miss C said that, although she had complained to the Ombudsman that she had been unable to get a mortgage because of the delays, she had, in fact, never applied for one. Miss C said she had been receiving income support, housing benefit and child benefit since making her asylum claim, and that her benefits had been paid at a reduced rate (at 90% of the full rate payable) until IND had granted her exceptional leave to remain. She believed that her housing benefit had been cut following changes in 1996 to legislation governing asylum seekers. The documents that Miss C supplied to support that contention showed that her rate of housing benefit had been reduced on more than one occasion since March 1996: the reason given on the documents for those reductions was that her rent was considered to be too high when compared with other local rents.
5.11 Miss C said that as an asylum seeker, she had not applied for many things, as she had known that her uncertain status had not entitled her to them. What had been particularly difficult had been her inability to plan her life while waiting for a decision in her case. She said she found it difficult to describe the emotional effects caused to her by not knowing over the last seven years if she had a future in the UK. She said she wished that, when she had applied for asylum in 1993, IND had told her then that the process might take so long.
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5.12 Miss C showed the Ombudsman’s staff a letter dated November 1999 from the second Member’s office, under cover of which they had forwarded to her the questionnaire which IND had sent to the second Member in October (paragraph 5.D of the annex). The second Member’s office had apologised for the delay in sending it. Miss C said that, on receiving the questionnaire in November, she had not completed it immediately, as she had wanted advice from her solicitor. Miss C could not remember when she had returned that questionnaire to IND, but knew she had not been able to get an appointment with her solicitor until sometime in the new year. Miss C said that in May she had appealed against the refusal of her asylum application.
5.13 In January 2001 Miss C wrote to the Ombudsman’s staff enclosing a letter from the Immigration Appellate Authority saying that they had yet to receive documents from IND about her appeal. Therefore they had been unable to register it. Miss C said that she had telephoned the Immigration Appellate Authority at the end of December and they had still not received her documents.
5.14 IND told the Ombudsman’s staff that, following publication of the White Paper proposals, they had set up two teams to deal with the asylum backlog; one in January 1999 to deal with pre-1993 cases; and another, the asylum arrears group, in February 1999 to deal with the backlog of 1993-1995 cases, which had been estimated at around 20,000. The two teams had operated concurrently. The estimated deadline for completing 1993-1995 cases had been July 2000. The groups’ staff had required training, because they had been recruited from throughout IND, and therefore not all had been asylum caseworkers. In December 1999, when it had become clear that the asylum arrears group would not clear all the 1993-1995 cases by the deadline, an additional team had been set up. In March 2000 Miss C’s case had been transferred to that team. IND said that to deal with the number of cases within the timescale set, they had decided to prioritise them by categorising them in order of complexity, taking into account the nationality and type of case, rather than by date of receipt. They had decided that Miss C’s case fell into the most complex category and so they had dealt with it near the end of the exercise. They said that case complexity depended in part on the level of enquiries that needed to be made to reach a decision. They believed that Miss C’s application had needed more detailed enquiries to establish whether she came within the White Paper criteria.
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5.15 The Ombudsman’s staff asked IND whether, had they considered Miss C’s case before the issue of the 1998 White Paper, they would have granted her either refugee status or exceptional leave to remain. They said that Miss C’s claim for asylum did not constitute a reason for granting it under the terms of the UN Convention and therefore, irrespective of when they had considered her application, she would not have been eligible for asylum. Since they had considered Miss C’s application under the White Paper provisions, they could not speculate on whether there would have been sufficient compassionate circumstances to grant her exceptional leave to remain had they considered it before the new provisions had come into force. However, they considered it probable that Miss C’s application would not have succeeded under any of the provisions which preceded the 1998 White Paper.
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Findings
5.16 It was nearly seven years between July 1993 and May 2000 before IND determined Miss C’s asylum application. What were the reasons for that delay? The then Permanent Under Secretary has said that the five year delay until 1998 was caused by Miss C’s application resting in a backlog of asylum applications dating from before January 1996. The need to tackle that backlog had resulted in the proposals set out in the Government’s 1998 White Paper (paragraph 5.G of the annex). That delay of five years was unreasonable and I deal with the effects of it for Miss C below. I consider next whether the delay of nearly two years, between publication of the White Paper in July 1998 and Miss C’s application being determined in May 2000, was also unreasonable and attributable to failings by IND.
5.17 By February 1999 IND had, in response to the White Paper, set up two teams and procedures to deal with the backlog of asylum applications submitted before 1995 (paragraph 5.14). I am not in a position to comment on whether they could have put all those arrangements in place more quickly after the White Paper’s publication. However, given the circumstances which IND have described, in particular the need to recruit and train new staff, the six months or so that they took to gear themselves up to implement the White Paper provisions do not seem to me to have been an unreasonably long time. IND have said that, once the implementation teams were up and running, they did not then give Miss C’s case immediate attention because they considered it complex, and had decided to deal with such cases last. I can see merit in the decision to process simpler applications first (paragraph 5.14), which would have ensured that the greater number of people were removed from the backlog quickly, and therefore I do not see reason to criticise IND’s approach in itself. Nevertheless I asked the Acting Permanent Under Secretary whether he thought that that approach was consistent with the one that IND had said, in the context of two previous cases that the Ombudsman had investigated, that they had taken in dealing with backlogs of other types of applications. In those cases IND had indicated that their approach to cases broadly was to deal with them chronologically and not to take any, regardless of complexity, out of turn. In reply the Acting Permanent Under Secretary said, “The Directorate has always adopted a flexible approach in dealing with the backlogs of cases. The cases that you referred to were entry clearance cases and the point made was that in neither case was there any compelling reason to give these cases priority over other cases in the queue. This does not mean that all cases were necessarily dealt with in chronological order or that we would not on occasion carry out special exercises to concentrate on particular types of cases. The approach with asylum cases was and is pragmatic, aiming to maximise the operational impact of the resources we are able to deploy. Since 1995/6 the aim has been to deal with as many new cases as possible on the basis that the quicker cases are dealt with the better for all concerned. Resources over and above those needed to deal with the intake were directed at clearing backlogs. This worked well until the intake exceeded capacity to deal with new cases. We are now back in a position where output exceeds intake. The priority is again to deal with new cases in order to speed up the process as a whole and to meet the White Paper targets; but there is now substantial capacity available to clear the overall backlogs. Current applications are running at the rate of around 6,500 a month and decisions are being taken at the rate of around 14,000 a month and rising.” I also asked the Acting Permanent Under Secretary what evidence IND had to show that in February 1999 they had given active consideration to Miss C’s case to decide that it was complex and therefore should be further delayed, since the Ombudsman’s staff had found no record of such consideration. In reply he said, “Decisions that a case was complex and better dealt with towards the end of the White Paper exercise were based on the nationality of the applicant and the type of case and not on a detailed examination of the case or its merits. This could be established quickly from a brief glance at the papers. The files were then placed in queues based on case type. The files were not minuted at that stage as there was no need to do so.”
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5.18 The first action on Miss C’s case was in October 1999 when IND sent to her, via the second Member, the questionnaire she needed to complete before they could determine her application. After receiving that in mid-November, I can appreciate that Miss C may have thought it prudent to seek legal advice before completing it (paragraph 5.12); but it was her decision further to delay the progress of her application by waiting for an appointment with her solicitor. From the evidence on IND’s file (paragraph 5.E of the annex), it seems that it was not until April 2000 that Miss C returned the completed questionnaire. IND determined her application in May. That was after the Ombudsman’s intervention in Miss C’s case, which more or less coincided with IND’s receipt of her completed questionnaire. I am satisfied, therefore, that IND determined her application within a reasonable time after receiving the completed questionnaire from Miss C.
5.19 In summary, I find that the initial part of the two years’ delay in determining Miss C’s application, which occurred before she had been sent a questionnaire, was attributable to IND. However, there were mitigating factors, which have led me to conclude that that part of the delay was not unreasonable. I also find that the bulk of the delay between IND sending Miss C a questionnaire and determining her application, was caused by the length of time it took Miss C to receive the questionnaire, to complete and to submit it. Ultimately, IND determined Miss C’s application before their revised deadline of July 2000 for determining all 1993-1995 cases. In all the circumstances, I do not regard the two years’ delay between the publication of the White Paper and the determination of Miss C’s application to be due to maladministration. However, I have said that I consider the five years’ delay before July 1998, when Miss C’s case sat in a backlog, to have been excessive and to have been directly attributable to IND’s failings, and for that they merit my criticism. I welcome the then Permanent Under Secretary’s acknowledgement that the delay in Miss C’s case was too long, and his apologies for the inconvenience that that caused her (paragraph 5.G of the annex). I also welcome the improvements that IND have made in their handling of asylum applications leading to the numbers of decisions being made now exceeding the intake of new applications.
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5.20 I asked the Acting Permanent Under Secretary whether IND had reached their target of completion by July 2000 of the majority of asylum cases submitted before December 1995, and to give me actual case clearance figures to demonstrate whether they were still on course to meet the target of substantially reducing the asylum backlog by April 2001. In reply he said “I can confirm that the initial backlog of pre 1996 asylum cases (i.e. the cases identified at the start of the backlog clearance exercise) has been cleared. However a small number of cases from this period continue to be found in the system and these are being decided as a very high priority. During 2000 over 110,000 initial asylum decisions were made. The backlog of asylum applications has dropped for ten consecutive months and at the end of December stood at 66,195. We remain on course to make further substantial reductions by April this year.” I welcome that progress.
5.21 I turn next to the question of how the five years’ delay before July 1998 in determining Miss C’s case, which I have found was due to mishandling by IND, affected her. She has described a number of ways in which she feels that she and her brother have suffered, each of which I deal with in turn. First, Miss C complained that IND’s delay in her case had prevented her from travelling, and in particular from seeing her dying mother or attending her funeral. I note that, by Miss C’s account, her mother died suddenly and unexpectedly, so it seems to me questionable as to whether, even had she had freedom to travel, Miss C might have done so in time to see her mother alive or to attend her funeral in 1994. Miss C has said that she did not apply to IND in 1994 for permission to travel back to Croatia in July 1993 (paragraph 5.8). Neither have I seen evidence that she applied for permission for her brother to travel. Miss C has said that he was unable to travel on school trips because of his outstanding asylum application. I appreciate that Miss C might have felt that, had she asked for travel documents, she would not have been provided with them in time, and I note that both her and her brother’s applications would have lapsed had they travelled in advance of their determination (paragraph 5.5). However, it seems to me that, had Miss C alerted IND to her need to travel, then she would have given them the opportunity to consider whether they might have seen a compelling reason to take her application out of turn, which opportunity she denied them by failing to raise the matter. That being so, I conclude that I have not seen evidence that IND were directly responsible for Miss C being unable to visit her mother in 1994 when she was ill, or to attend her funeral. However, Miss C has also described the frustration she felt at being unable to travel to visit her mother’s grave for so long after her death (although I note that in 1996 she told IND that she could not travel to visit the grave because it was under Croatian military control – paragraph 5.A of the annex), and from being prevented from travelling on study trips, while she waited for her application to be determined. As an asylum seeker, it seems to me that Miss C must properly have expected to have had limited travel options for a reasonable amount of time while her application was determined. However, I consider that the delay meant that her ability to travel was limited for an unreasonable amount of time.
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5.22 Miss C also complained that her inability to travel freely abroad adversely affected her employment prospects, as did her undecided immigration status (paragraph 5.9). I appreciate that Miss C may have seen it as pointless to apply for certain jobs in circumstances in which she had neither permanent leave to remain in the UK, nor freedom to travel abroad. Nevertheless, I note that she had had permission to work since 29 April 1994 (paragraph 5.A of the annex) and, while I do not discount the frustration that Miss C must have felt at being unable to apply for what she considered to be ideal jobs, it was open to her to apply for alternative employment for which indefinite leave to remain and the ability to travel abroad may not have been required. It also seems to me that other factors, such as the amount of time that Miss C spent studying, might also have affected her ability to secure the type of post that she sought. IND’s delay certainly limited Miss C’s eligibility to apply for certain jobs for an unreasonably long period. However, in all the circumstances, in the absence of Miss C having secured firm job offers which she was then unable to take up because of her uncertain immigration status or inability to travel, whether she would indeed have secured employment in her chosen field had her application been determined earlier, must remain speculative. That being so, I am unable to find that IND’s delay led directly to Miss C being unable to secure the type of job that she wanted.
5.23 Moving on to the other ways in which Miss C complained that she had been affected, I accept that IND’s delay would have prevented her for an unreasonably long period from having the opportunity to do such things as apply for a mortgage. Miss C has described the distress that the delay caused to her and her brother because such opportunities were denied to them and because they were unable to plan their lives for a prolonged period. However, on the subject of mortgage application specifically, I note that Miss C did not apply for a mortgage before her asylum application was determined, and neither has she done so since. That being so, and since a number of other factors might also have affected a mortgage lender’s discretionary decision to grant her one, I consider that the likelihood of Miss C’s success in obtaining a mortgage, if her application had been determined earlier, is also too speculative. Therefore I must conclude that I have not seen evidence that the delay led directly to her being unable to obtain a mortgage.
5.24 Miss C also complained that, as an asylum seeker, she had received reduced benefits for a longer period than she might have done had IND determined her application sooner. Although Miss C has been unable to supply evidence to demonstrate that she was receiving reduced rates of benefits (I note that the documentation she provided indicated that her housing benefit had been reduced because of comparison of her rent with others, rather than because of her asylum status – paragraph 5.10), in principle that may well have been so, since I am aware from other cases which the Ombudsman has investigated that immigration status will in certain circumstances affect benefit entitlement. If Miss C had indeed been receiving reduced benefits as an asylum seeker, then it seems to me that the delays would unreasonably have lengthened the period during which she qualified for reduced rates.
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5.25 Is Miss C due any redress for the distress and benefit loss that she has said she has suffered over an unreasonably long period because of IND’s delay? When considering whether to recommend redress for injustice caused by maladministration, the Ombudsman is concerned with putting the complainant back in the position that he/she would have been in had the maladministration not occurred. Had IND not been guilty of five years delay between 1993 and 1998 in determining her asylum application, what position would Miss C have been in? The evidence I have seen shows that IND had considered Miss C’s application in 1997 and decided at that time that they were going to refuse her asylum (paragraph 5.A of the annex). They have since confirmed that they consider that Miss C has at no time met the eligibility criteria for asylum as set out in the UN convention (paragraph 5.15), which is consistent with their refusal of her asylum claim in May 2000. They have also said that they consider it probable that they would not have judged Miss C (and therefore also her brother) as eligible for exceptional leave to remain in the UK had she not become so under the terms of the July 1998 White Paper.
5.26 In those circumstances it seems to me that if IND had at any point before the issue of the White Paper in July 1998 issued decision papers on Miss C’s application, the likelihood is that they would have refused her asylum claim and would have seen no grounds to grant her exceptional leave to remain in the UK. In other words, the most likely scenario were it not for the delay between 1993 and 1998 in deciding her asylum application would have been that Miss C would have had no right to remain in the UK, and would have stood to be deported. That being so, it seems to me that, while I have found that IND’s excessive delay in determining Miss C’s case may well have caused her and her brother inconvenience, distress and loss of benefit income, were it not for that excessive delay she would not have had an undetermined application outstanding in July 1998 when the White Paper was published. She would not then have fallen within the category of applicants granted exceptional leave to remain partly in recognition of the excessive delay in determining their cases. In those circumstances, and in the absence of any appeal decision overturning the decision to refuse asylum to Miss C and her brother, it seems to me that I must conclude that the likelihood is that they have both benefited greatly from IND’s delay in their cases until 1998, by securing leave to remain in the UK. I consider that the injustices also caused to Miss C and her brother by the delay would need to be exceptional for me to conclude that they outweighed the benefit that they have both enjoyed because of it. While I do not discount in any way the suffering that Miss C has said the delay caused to her and her brother for an unreasonably prolonged period, I do not consider that I have seen evidence to convince me that the injustices caused to them were so exceptional. That being so, I do not propose to ask IND to provide any additional redress for Miss C.
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5.27 There is a final matter. In January 2001 Miss C told the Ombudsman’s staff that the Immigration Appellate Authority had yet to receive documentation from IND which would allow them to proceed with her appeal against refusal of asylum which she had made in May 2000. I asked the Acting Permanent Under Secretary if he could say when they would be sending those documents to the Appellate Authority. In reply he said, “Regrettably the appeal, lodged in May, has only recently come to light. It will now be considered urgently and the appeal bundle forwarded as quickly as possible to the Immigration Appellate Authority. I apologise unreservedly to Miss C for the inconvenience caused by the delay in progressing her appeal.” I pass on those additional apologies to Miss C through this report.
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Conclusion
5.28 I have found that, had it not been for IND’s maladministration, Miss C would have been unlikely to have been granted exceptional leave to remain. In the light of that, I regard the Permanent Secretary’s apologies to Miss C as a suitable outcome to a justified complaint.
Annex
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