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Home > Publications > Selected cases— Parliamentary > Selected Cases and Summaries of Completed Investigations: April 2001 to September 2001 > Case No. C.1293/01
Selected Cases and Summaries of Completed Investigations
PCA 6th Report – Session 2001-2002
Chapter 1
HOME OFFICE
Immigration and Nationality Directorate: incorrect refusal of application for asylum
The Ombudsman upheld a complaint from Mr D’s solicitors that the Immigration and Nationality Directorate (IND) had wrongly refused his application for asylum on the grounds that he had failed to return his statement of evidence form within the specified time limit, whereas the form had been returned on time but IND had not linked it to Mr D’s file. The Ombudsman found that there had been a problem at IND in linking statement of evidence forms to files within the time limit, and that as a result a number of such incorrect refusals had been issued. He further found that in Mr D’s case IND had decided his application on non-compliance grounds too early, had delayed withdrawing the flawed decision for almost six months after the solicitors had brought the error to their attention, and had failed to reply promptly to the solicitors’ letters and complaints on the matter. The then acting Permanent Under Secretary of State apologised to Mr D for those shortcomings, which he said had occurred in part due to a large increase in the number of applications received, and he described the procedures that IND had put in place to lessen the scope for flawed non-compliance decisions in future. The new Permanent Under Secretary offered Mr D an ex gratia payment of £50 in recognition of the distress that IND’s failings had caused him.
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Full text
3.1 The solicitors complained that, although Mr D had submitted to the Immigration and Nationality Directorate (IND) of the Home Office a statement of evidence form (the form) within their time limit, IND had wrongly refused his claim for political asylum because they said he had not done so. They further complained that IND had delayed in correcting the error, and had failed to respond to their correspondence on the matter. The solicitors said that IND’s mishandling had caused Mr D acute anxiety and distress and additional legal costs.
3.2 My investigation began in March 2001 once the Ombudsman had received the comments of the then acting Permanent Under Secretary of State at the Home Office, after the referral of the complaint 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.
Legislative and administrative background
3.3 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) for a limited or an indefinite period. Under section 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 section 33(1) of the Act an illegal entrant is defined as a person unlawfully entering, or seeking to enter, the UK in breach of the Immigration Rules. Paragraph 327 of the Immigration Rules defines an asylum applicant as a person who claims that 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 paragraph 334 of the Rules an asylum applicant will be granted asylum in the UK if the Secretary of State is satisfied that he is a refugee as defined by the 1951 Convention, and his removal would be in breach of it. Under paragraph 336 an application which does not meet the criteria under paragraph 334 will be refused. Under paragraph 340, a failure without reasonable explanation to, among other things, complete an asylum questionnaire such as the form, may lead to refusal of an asylum application. At the time of Mr D’s application, IND asked asylum applicants to complete the form to give further necessary information about their case, and to do so within 14 days.
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3.4 In their instructions for dealing with non-compliance in asylum cases, IND tell their caseworkers that if a completed form has not been returned in time and no explanation has been given, they should refuse the asylum application substantively, without interview, on the information available. However, IND say in their instructions that caseworkers should allow the full 14 calendar days for the return of the form, and a further five working days for the form to reach the applicant’s file via IND’s internal post, before considering refusal for non-compliance. The total time to allow will be 23/24 days, as there will always be a weekend to take into account, and the total will be 24 days when there is a bank holiday. IND go on to say in the instructions that, where a decision to refuse under non-compliance procedures has been made, if a completed form is then located and it is found that it had, after all, been returned on time, the refusal decision is fatally flawed and should be withdrawn in a letter inviting the applicant to an asylum interview. The asylum application can then be considered under the normal procedures.
Investigation
3.5 The following narrative of the key events in Mr D’s case is based on an edited extract from the then acting Permanent Under Secretary’s comments on the complaint. The Ombudsman’s staff have checked that against IND’s papers to ensure that it is accurate. Where they have found discrepancies, that is made clear in the text.
3.6 On 22 March 2000 Mr D, a Somali national, arrived in the UK without travel or identity documents, having travelled by air from Kenya to an unknown European third country, and then by coach to the UK. On 24 March he attended the IND asylum screening unit in Croydon and claimed asylum. IND issued him with both a standard acknowledgement letter to confirm his status as an asylum seeker, and the form, which he was required to complete and return to IND by 7 April (that is, within 14 days - paragraph 3.3).
3.7 On 5 April the solicitors returned Mr D’s completed form to IND by recorded delivery. In accordance with the instruction to caseworkers to allow five working days (following the expiry of the 14 calendar days) for internal post to reach a file before taking action (paragraph 3.4), on 14 April, as no form had been attached to the file, IND assumed that it had not been returned and so considered and refused the application under paragraphs 340 and 336 of the Immigration Rules (paragraph 3.3) – that is, on the basis of non-compliance and that, from the information before him, the Secretary of State was not satisfied that a well-founded fear of persecution had been established. (Note: The Ombudsman’s staff have seen a copy of a file note of 13 April made by an IND caseworker in which he recorded that he had decided to refuse Mr D’s claim for asylum that day, not on 14 April, and without substantive consideration, purely on the grounds of non-submission of the form under paragraph 340 of the Immigration Rules and not also under paragraph 336 of those Rules.)
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3.8 The file was sent to IND’s Croydon enforcement unit for them to consider taking action against Mr D for illegal entry. On 20 April they wrote to the solicitors seeking details of Mr D’s method of entry to the UK. On 12 May IND received that information, sent by the solicitors on 9 May, and on 25 May they served papers on Mr D advising him that he was an illegal entrant under section 33(1) of the Immigration Act 1971 (paragraph 3.3), and that his asylum application had been refused. Directions were given for his removal to Somalia by scheduled airline at a time and date to be specified.
3.9 On 31 May the solicitors wrote to IND appealing against the decision to refuse asylum. They provided posting details confirming that the form had been delivered on 5 April, and therefore that it had been returned on time. The solicitors complained about the failure to check with them whether the form had been returned before refusing the application, which they said had merely wasted scarce resources on both sides. As well as seeking an apology for the distress caused to Mr D by giving directions for his removal to Somalia, the solicitors also sought an explanation for the delay in serving the refusal notice. They said that although the refusal letter had been dated 25 May, they had not received it until 31 May, which had reduced the time that they had had to prepare an appeal. Further delay had been caused by IND’s failure to use their reference number, which they had quoted on their first letter to IND on 23 March, asking that they should use it on all future correspondence. The solicitors said that they considered the appropriate remedy to be to grant Mr D refugee status.
3.10 The file was passed to IND’s appeals support section to process the appeal without any specific reply being sent to the solicitors’ letter of 31 May. Having confirmed with IND’s post room that the recorded delivery letter sent by the solicitors on 5 April had been received on 6 April, on 1 September the appeals support section returned the file to the asylum co-ordination unit to withdraw the refusal decision taken on 14 April. On 20 September Mr D’s form was attached to his file. On 20 November IND wrote to the solicitors saying that they had withdrawn the decision, and that they would invite Mr D to attend an interview on a date to be arranged. (Note: That letter, which the Ombudsman’s staff have seen on IND’s file, was a pro forma letter in which they said that they had taken the original decision to refuse Mr D’s asylum claim without the form, which had been returned in time. IND asked the solicitors to withdraw the appeal they had made against the refusal, on a form which they enclosed.)
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3.11 On 24 November the solicitors replied to IND, adding further grounds to their original complaint letter of 31 May, for which they requested an acknowledgement. In particular, the solicitors complained about what they assumed to be IND’s failure to link Mr D’s form with his file, and to leave sufficient time for the form to reach his file before refusing his claim. They said they were aware that the proportion of defective non-compliance refusals such as Mr D’s had increased dramatically, despite the fact that IND management must, by then, have been aware of a problem in linking forms to files. They considered that that amounted to maladministration, and also that it suggested some element of recklessness on some part of IND’s management. The solicitors further complained that IND had not properly considered the directions for Mr D’s removal, as they were in conflict with IND’s stated policy and practice not to remove individuals to Somalia, and also because there was no scheduled air service to Somalia. The solicitors also complained about IND’s delay in correcting the error after they had pointed it out; the absence of any apology or explanation; and of IND’s failure to reply to their earlier complaint. They said that the uncertainty caused by IND incorrectly refusing Mr D’s application and threatening his removal to Somalia had caused him great distress and anxiety. It is not clear when the solicitors’ letter was attached to IND’s file, but it may have been as late as the end of January 2001, by which time an interview had been booked for Mr D for 1 February. The solicitors’ letter remains unanswered.
3.12 Meanwhile, on 11 December 2000, having received no reply, the solicitors had written to the Member asking her to refer the matter to the Ombudsman. The solicitors said that a table of statistics for October 2000 showed that IND had refused 38 per cent of asylum cases decided in that month for non-compliance, the large majority of which they assumed had been prompted by an alleged failure to return the form within the time limit and were defective. In October 1999 the non-compliance figure had been only 8 per cent of the total. They said that, as many of the applicants so refused must subsequently have submitted appeals supported by evidence of posting of the form in time, as Mr D had done, it was impossible that IND could have been ignorant of a problem of an increased number of incorrect non-compliance decisions at an early stage. The solicitors said they had handled at least ten such cases; that that was typical among immigration practitioners; and that the problem of defective non-compliance refusal had become notorious. The solicitors said it would be shocking to think that IND managers had not tackled the problem of the huge rise in such decisions because to do so would damage the statistical portrayal of IND’s performance in tackling their asylum case backlogs. They noted that a decision to refuse on non-compliance grounds could be made in a few minutes by unskilled staff, whereas substantive consideration was a lengthy process requiring considerable training.
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3.13 Following the Ombudsman’s intervention, on 1 February 2001 Mr D attended an interview at IND. After substantive consideration of his application, IND decided to grant him indefinite leave to remain as a refugee. On 12 February IND sent the grant letter and a covering letter to the solicitors by recorded delivery.
The then acting Permanent Under Secretary at the Home Office’s comments on the complaint given in March 2001
3.14 Failure to acknowledge or respond directly to the solicitors’ letters: The issues referred to the Ombudsman have previously been raised by the solicitors in their unanswered letters of 31 May and 24 November 2000. We apologise unreservedly for the failure to acknowledge those letters or to respond to the complaints that they contained. In the case of the second letter the failure appears to have been due to a delay in linking it to the file.
3.15 Incorrect non-compliance refusals: IND are aware that there have been a number of cases recently where asylum has been refused on non-compliance grounds for failure to return a form by the due date, despite the fact that the form had been returned within the stipulated time limit. As a result of that problem, IND’s asylum co-ordination unit have conducted a thorough review of their procedures for associating forms with the relevant file. In most cases, the delay in the form being attached to the applicant’s file occurred because the file was in action outside the asylum co-ordination unit at the time the form was returned. That unit now have in place a system whereby all returned forms are recorded on a computer database, and no non-compliance action is taken on a case until the database has been checked. IND are confident that that will prevent a recurrence, on the scale previously encountered, of cases being wrongly refused.
3.16 Delays in linking letters to files: The solicitors have also asked what steps are being taken to ensure that letters are linked promptly to files. In that respect a number of special exercises have been conducted by IND’s document management centre to get letters to the sections holding the files. Also, a project had been set up which, among other issues, is looking at speeding up the retrieval of files from any location. IND’s senior management are aware of the problems in ensuring that correspondence is linked to files, and the situation is continually being monitored, but individual sections may still have difficulty attaching the letters as quickly as they would like.
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3.17 Removal directions: With regard to the setting of removal directions to Somalia, the solicitors have rightly made the point that IND do not currently return people to Somalia due to practical difficulties such as the lack of a scheduled airline service. However, in Mr D’s case, at the time of the initial decision to refuse his application there was no substantive evidence on his file to show that he was a Somali. The removal directions were set to enable a right of appeal to be triggered in respect of the refused asylum application. In practice, Mr D would not have been removed to any country before his nationality had been established. However, we apologise for any additional distress that the removal directions may have caused Mr D.
3.18 Late receipt of notice of refusal: The solicitors have further complained that, despite being dated 25 May 2000, they did not receive the notice of refusal until 31 May. All such letters are sent out by first class recorded delivery. A number of factors, including the bank holiday weekend, may have contributed to the delay. We regret the delay, but it is not clear that IND were culpable.
3.19 General: As previous cases have highlighted, the reorganisation in IND during 1999 and 2000, together with a growing volume of work, has unfortunately led to delays. We accept that the service Mr D received was not as efficient as we would have wished, and we apologise for that. Every effort is being made to deal with applications quickly, and to reduce the backlog. Asylum decisions continue to outstrip new applications, and the backlog of applications awaiting initial decisions has fallen for 12 consecutive months. Since the end of January 2000, the backlog has been reduced by 44,705 cases, a fall of 43 per cent during 2000. The backlog as at the beginning of March 2001 was down to fewer than 59,000 cases, and we are on course to make further reductions by April. The provisional total number of initial asylum decisions taken in 2000 was 110,065, more than three times the number in 1999. We are still committed to meeting the target, contained in the 1998 White Paper ‘Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum’ of making most initial asylum decisions in new substantive cases within two months from April 2001. The latest evidence also suggests that the number of cases incorrectly refused on non-compliance grounds, where it is subsequently established that the form was submitted on time, has fallen sharply in recent weeks, suggesting that the measures described above are having the desired effect.
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3.20 The then acting Permanent Under Secretary’s conclusions on the complaint: Clearly we have not dealt with Mr D’s case as well as we would have wished, and we apologise unreservedly to him for the distress and inconvenience caused. Against the background of a growing volume of work, every effort is being made to deal with applications quickly and effectively, and to reduce the backlog. Steps have also been taken to ensure that where forms have been returned within the stipulated time limit, they are linked speedily to files. While we are by no means complacent, we are now in a better position from which we can look forward with confidence to providing a better service to those claiming asylum in the UK.
3.21 The solicitors complain that Mr D has been caused acute anxiety and distress due to IND’s mishandling of his case. As you know, we would be prepared to make a consolatory payment only in exceptional circumstances and where there were sufficiently compelling reasons to justify such a payment. While we recognise that the initial refusal of his application would have caused him anxiety, it was open to Mr D to appeal against that decision, which he did. The application has now been reconsidered and he has been granted refugee status. In the circumstances we do not consider it appropriate to offer an ex gratia payment.
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Further enquiries
3.22 The Ombudsman’s staff have seen figures published by the Home Office on their website that show that the total number of initial asylum decisions made by IND increased significantly from 33,720 in 1999 to the 110,065 completed in 2000 (paragraph 3.19). However, they also show that the percentage of those total asylum clearances made up by non-compliance refusals increased disproportionately from 5 per cent in 1999 to 22 per cent (that proportion was at its highest in September, October and November 2000, when it ran at 38 per cent). The figures are not broken down to show what percentage of the non-compliance decisions were taken incorrectly.
3.23 The solicitors told the Ombudsman’s staff that Mr D was in receipt of legal aid in respect of his asylum application. They provided a statement that Mr D had given them about what he considered he had suffered as a result of IND’s handling of his case. Mr D said that while he had been an asylum seeker he had been living with relatives who had supported him financially. He had not made any application for benefit or received any form of assistance, financial or otherwise, from the government or his local authority, as the latter had told him that he might be dispersed if he made such an application, and he had not wanted to be isolated from his family there. Mr D also described the anxiety and distress he had suffered as a result of IND’s refusal of his initial application, and the issue of the removal directions. He said that when he had received notification of that he had felt shocked, distressed and bewildered. He had feared that if he was sent back to Somalia he would be killed; he felt like he had been told he was going to be hanged or sent to the electric chair. He had suffered a suppressed appetite and disturbed sleep, having recurrent nightmares about events in Somalia and often dreaming of seeing his own corpse. He had suffered constant intrusive thoughts which had affected his ability to concentrate and to study, and as a result he had missed part of a college course he had been attending and had not done as well in that as he might have expected. Mr D said that his relatives in the UK had also suffered distress and anxiety about his situation. In addition, the delays caused by IND’s errors in his case had lengthened the time that he had been separated from his wife and children, who were refugees in Yemen, and who, since he had been granted refugee status, had applied to join him in the UK under family reunion provisions.
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Findings
3.24 Having made a flawed decision to refuse Mr D’s asylum application in the belief that his form had not been submitted in time, it took IND some three months to take any action to investigate the matter after, on 31 May 2000, the solicitors pointed out their mistake. Having then found on 1 September, by means of a simple telephone call, that their decision had been made in error, it took IND until 20 November to notify the solicitors of its withdrawal. IND’s initial error, and their subsequent delay of nearly six months in acknowledging it, merits my criticism. It is unclear exactly what percentage of non-compliance asylum refusals are legitimate, and what percentage made in error. However, the then acting Permanent Under Secretary has acknowledged an increased number of such refusals that were incorrect (paragraph 3.15). The solicitors’ comments on their experiences of defective asylum case refusals (paragraphs 3.11 and 3.12); the fact that IND had seen fit to draw up a pro forma letter for use to notify such incorrect decisions (paragraph 3.10); and in particular, the asylum case clearance statistics that I have seen for 2000 compared with 1999 (paragraph 3.22), all bear out the suggestion that, while IND had made a welcome inroad into their asylum backlog in 2000 compared with 1999, the number of incorrect decisions had increased disproportionately, and Mr D’s was just one of a rapidly increasing number of such decisions made by IND at the time. While such a problem continued, it seemed to me that not only were IND having to waste limited resources rectifying such decisions, but also that they were causing more work for applicants and their representatives in having to submit, and then withdraw, wasted appeals.
3.25 I welcome the then acting Permanent Under Secretary’s acceptance that the service that Mr D received was not as efficient as IND would have wished, and the fact that IND have now granted Mr D’s application. I also welcome the steps that he has said that IND have now taken to reduce the backlog of post unlinked to files; to improve the speed with which post is linked; and to check against their database for the receipt of forms before taking non-compliance decisions, all of which he has said should reduce the number of incorrect refusals (paragraphs 3.15 and 3.16). However, this is by no means the first case I have seen where errors and delays have occurred because of IND’s failings in linking documents to files, and therefore I asked the new Permanent Under Secretary if, while such problems persisted in IND, he was satisfied that the five days that IND allowed for forms to reach asylum case files via their internal post was long enough for the bulk of them to do so. It also seemed to me that the database check his predecessor had described would only be effective if details of received forms were entered on it promptly. Therefore I asked how quickly the receipt of forms was being entered on the database.
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3.26 In reply the Permanent Under Secretary said that during the autumn of 2000 it had become apparent that there had been an increase in the number of applications that had been refused on the grounds that the form had not been returned within the given time limit. It had also become apparent that a proportion of those refusals had been flawed, in that the form had been returned in time but the caseworker had not been aware of that fact when the decision had been taken. The increase in the asylum workload during the autumn had been a contributory factor to the failure to realise that forms which had been returned in time were not being linked to the appropriate files in time to prevent flawed decisions being made. Once that had come to IND’s attention, however, several changes had been made. In October 2000 a team had been set up in the asylum co-ordination unit to clear the backlog of forms that had built up as a result of a higher number of decisions being taken. Also, on 25 November IND had introduced a dedicated PO box number for the return of forms. Using that address ensured that forms went directly to the asylum co-ordination unit, who were responsible for linking forms to files, and that they were not affected by problems regarding linking of correspondence to files in IND’s post room or document management centre. Since January 2001 the receipt of forms has been recorded on a computer database. Caseworkers had been instructed to check that database for receipt of a form before taking any non-compliance action. In that way, even if there is a delay in linking a form to a file, a non-compliance decision should not be taken, provided that the receipt of the form has been recorded on the database within five working days of its due date. The Permanent Under Secretary said that a further change was about to be made so that staff in the asylum co-ordination unit could themselves record receipt of forms on the database. Previously that recording had been done by another section, which could have contributed to some further delays. He said that unfortunately, it had not been possible retrospectively to assemble sufficiently reliable information to enable IND to provide accurate figures on the time taken to link and record returned forms. However, from 23 May IND had kept manual records of every returned form, including the dates of posting and receipt, the point of receipt within IND, the date forms were recorded on the database, the date forms were linked to files and, where forms were not linked to files within five days, the reasons for that delay. The Permanent Under Secretary said that IND are using the information so obtained to determine whether their procedures are enabling them to link forms and record their receipt on the database within five working days of their arrival. If it became apparent that the procedures were not working, IND would take steps to rectify the matter, whether through further changes to procedures, or through extending the period allowed for the form to be linked. I welcome that news.
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3.27 Since it seemed that IND’s statistics had clearly indicated a marked increase in the number of non-compliance decisions made during the course of 2000, and while I appreciated that not all of those would have been incorrect, I also asked the Permanent Under Secretary why he thought that IND had not noticed the problem of the increased number of incorrect decisions, and taken action to rectify it, sooner. While I was glad to hear that the latest evidence in March suggested that the number of incorrect refusals for non-compliance had fallen sharply (paragraph 3.19), I also asked him if he could give more recent asylum case clearance figures to show that that trend had continued. Finally, further to the restatement of IND’s commitment to meet their target for making most initial asylum decisions in new substantive cases within two months from April 2001, I also asked the Permanent Under Secretary whether he could yet say what percentage of such decisions had met that target. In reply, he said that the sharp downward trend in asylum cases incorrectly refused on non-compliance grounds had continued, and the backlog of such cases had also sharply declined, particularly in recent weeks. At 1 March 2001 the weekly intake of such cases in the asylum co-ordination unit had been 528, and the backlog of such cases awaiting action had been 2,716. At 31 May the weekly intake had been 149 and the backlog had been 2,085. At 12 July the weekly intake had been 122 and the backlog had been 445. The intake figures related almost entirely to incorrect non-compliance decisions made before the new procedures had been put into place. Incorrect non-compliance decisions made since the procedures had been revised were now running at minimal levels. However, IND understood that, although the majority of forms were directed to the dedicated PO box number, some were still being sent by applicants or their representatives to other parts of IND, thus delaying their being input on the database or linked to the file.
3.28 The Permanent Under Secretary said that in this financial year IND’s target was to decide 60 per cent of initial asylum decisions in new substantive cases within two months of their receipt. It was too early in the year to report accurately performance against that target which related to the whole financial year. A snapshot analysis of new substantive applications received in January had indicated that around 50 per cent had been decided and the decisions served within two months. Actions were in hand to streamline and accelerate processes further, with the aim of improving performance and meeting the target. In 2003/2004 IND’s target is to decide 75 per cent of new substantive asylum applications within two months.
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3.29 The delay in linking Mr D’s form to his file was not the only error by IND that I noted in the initial decision making process in his case. By my calculations the fifth working day after 7 April (the date by which IND had to receive Mr D’s completed form for it to be in time – paragraph 3.6), was Friday 14 April; and the twenty-third calendar day after 24 March (the date on which IND sent the form for Mr D to complete), was Sunday 16 April. Therefore, in accordance with IND’s instructions (paragraph 3.4), the earliest working day on which IND might properly have refused Mr D’s application for non-compliance, because they believed they had not received his completed form in time, was Monday 17 April (that is, the first working day after allowing the full 14 calendar days for receipt of the form, plus the full five working days for it to reach the file, a total of 23 calendar days). However, IND’s caseworker recorded that he had made the decision to refuse Mr D’s asylum claim on 13 April, (purely on the basis that IND believed that the form had not been submitted in time, and apparently without the substantive consideration that the then acting Permanent Under Secretary implied had been given to the case – paragraph 3.7), which was therefore premature in the light of IND’s instructions. Indeed, even if the decision had been made on 14 April, as the then acting Permanent Under Secretary had told me, it seemed to me it would still have been premature. Although it is clear that in Mr D’s case, that had made no material difference to the outcome since IND had not linked his form to his file by the time that the full five days grace period was up, I was concerned that IND had made a decision to refuse an asylum claim for non-compliance two working days before they had had valid grounds under their instructions to do so. I criticise that further error in Mr D’s case. I asked the Permanent Under Secretary if he could say why it had happened; whether he could say if it was an isolated occurrence; and whether he could reassure me that, in a bid to get the asylum backlog down as quickly as possible, IND caseworkers had not routinely been taking decisions without due regard to the timescales set out in IND’s instructions. In reply, he said that Mr D’s case had been an isolated occurrence in which the caseworker had inadvertently counted five consecutive days, rather than five working days, before refusing the application on non-compliance grounds. IND management were satisfied that caseworkers had not routinely been taking decisions without due regard to official instructions.
3.30 IND’s handling of correspondence about Mr D’s case was also poor. I welcome the then acting Permanent Under Secretary’s unreserved apologies, which I am glad now to pass on to Mr D through this report, for IND’s failure to acknowledge or respond to the solicitors’ complaint letters of 31 May and 24 November (paragraph 3.14). In the case of the second letter, that was due apparently to yet another incidence of IND’s failure to link documents quickly to Mr D’s file. That also deserves criticism.
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3.31 There remains the question of redress for Mr D. The legal aid fund will have met any additional solicitors’ costs caused by IND’s failings in his case (paragraph 3.23), so I do not invite IND to meet those. Neither have I seen evidence that IND’s actions caused Mr D to lose benefit, since his decision not to claim financial assistance to ensure that he remained with relatives, was a matter for him. On the matter of redress for the distress that IND’s failings caused, Mr D has described the acute anxiety that he suffered after IND issued removal directions against him, following their incorrect initial decision on his application. That continued for a period of six months between May and November, during which time I have found that IND failed to take the opportunity they were given to put matters back on the right course at a much earlier date. It seemed to me that Mr D could not have known that IND had issued directions to remove him largely to trigger a right of appeal (paragraph 3.17), and that in practice they would not have removed him to Somalia, or indeed to any other country, until they had firmly established his nationality. I am glad now to pass on through this report the then acting Permanent Under Secretary’s unreserved apologies to Mr D for the distress and inconvenience IND’s failings caused him (paragraph 3.20). However, I do not follow his argument that, because Mr D had exercised his right of appeal, which was against a decision that had been taken in error without all the facts, he was not due further redress in recognition of the distress caused to him by the erroneous decision (paragraph 3.21). Therefore I put it to the Permanent Under Secretary that the distress that IND’s initial error in his case, and failure to take prompt action to put it right, had caused Mr D was exceptional enough to warrant a consolatory payment. In reply the Permanent Under Secretary said that Mr D would have been aware that he could not have been removed from the UK whilst his appeal was outstanding. However, he accepted that during the six months it had taken IND to correct the erroneous decision, Mr D would have suffered a degree of anxiety about his future, and that it would be appropriate to recognise that by offering a consolatory payment of £50. I welcome that development.
Conclusion
3.32 I welcome the then acting Permanent Under Secretary’s acknowledgement of the errors that IND made in handling Mr D’s application for asylum and his apology to Mr D for those errors. I further welcome the Permanent Under Secretary’s offer of a £50 ex gratia payment to Mr D for the distress he suffered as a result of those errors, the explanations he has provided about IND’s actions to deal with the problem of unlinked forms, and his assurance that those actions have significantly reduced the problem of incorrect non-compliance decisions. I regard all that to be a satisfactory outcome to a justified complaint.
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