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4. Case No. C.821/99

Immigration and Nationality Directorate: delay in dealing with an application to remain in the United Kingdom

The complaint

4.1. Immigration advisors complained of excessive delay by the Immigration and Nationality Directorate (IND), part of the Home Office (HO), in determining Mrs A's application for indefinite leave to remain in the United Kingdom (UK); that had adversely affected the outcome of her application.

Background

4.2. Under section 3(1)(b) of the Immigration Act 1971 a person who is not a British citizen may be given leave to enter the UK for a limited or indefinite period. Under sections 3(3)(a) and 4(1) of the 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. On 23 March 1990 the Secretary of State laid the Statement of Changes in Immigration Rules before Parliament under section 3(2) of the 1971 Act. Paragraphs 131 and 132 of the 1990 Rules say, amongst other things, that a person seeking indefinite leave to remain in the UK as a foreign spouse must show that he or she has been given leave to enter or remain for the mandatory 12 months probationary period as a foreign spouse, and that the parties to the marriage intend to live permanently together as husband and wife.

HO's comments on the complaint

4.3. An edited extract from the Permanent Under Secretary of State's comments on the complaint is given in the appendix to this letter; the Ombudsman's staff have examined IND's papers which confirm that the key facts are as he has described them.

Further developments

4.4. On 23 February 1999 HO granted Mrs A and her son indefinite leave to remain in the UK.

Findings and conclusion

4.5. The immigration advisors' complaint was justified. Although it was the actions of Mr and Mrs A, except on one occasion, which caused the need to rearrange successive interviews and the bulk of the delay between 1990 and 1991, IND did not handle the case well overall. In addition to the errors and delays which the Permanent Under Secretary of State has identified, IND dealt badly with correspondence about Mrs A's application after the loss of the original file in April 1992; despite repeated chasing letters from Mrs A's representatives throughout 1992 and 1993, IND failed to reply and to set up a dummy file until December 1993, over a year and a half later. They also delayed for over five months in replying to the immigration advisors's letter of 13 January 1998. I criticise HO's shortcomings throughout the handling of Mrs A's case which delayed the resolution of her application; as the Permanent Under Secretary of State has recognised, the large backlogs of work and inadequate support systems prevalent in IND at the time may explain but certainly do not excuse those shortcomings. I welcome his apologies, which I now pass on to Mrs A through this report. Exceptionally, in recognition of the part that they played in delaying progress of her case, and although Mrs A falls outside the immigration rules, IND have granted her and her son indefinite leave to remain in the UK. Far from adversely affecting her application, the delay by IND appears to have worked to Mrs A's advantage. I regard all that as a satisfactory outcome to the complaint.

APPENDIX

Edited extract from the Permanent Under Secretary of State's comments on the complaint

4.a. [The following account of events] discloses a sorry tale. The successive postponement of interviews in 1991 was on only one occasion attributable to IND. But there were shortcomings in the way in which the application was handled after the interview that took place in December 1991. There was an unaccountable delay of four months in arranging for the interview report to be sent for typing. The file went missing. There were clearly shortcomings in the system for recording the movement of files at that time and in the recording of this file's movements, if indeed it was recorded. When the file did reappear in December 1993, it was mislaid again, with the result that subsequent consideration of Mrs A's case was hampered by the absence of the original application and related papers.
4.b. There were considerable pressures on staff at that time, notably large backlogs of work and inadequate support systems. This does not excuse the shortcomings which delayed the resolution of Mrs A's application and I apologise to her for them and the resulting delay. Mrs A and her son have now, exceptionally in the circumstances, been given indefinite leave to remain.

Narrative

4.c. Ms B (as she then was), a Colombian national, was admitted to the UK as a visitor on 7 November 1989 for a period of six months.

4.d. On 11 December 1990, having overstayed her leave to enter since 7 May 1990, she applied for leave to remain on the basis of her marriage to a British citizen, Mr A, having married him on 26 November 1990.

4.e. A letter requesting further documents and information was sent to Mrs A on 14 January 1991 and a reminder on 12 February, following which she and her husband came to the Public Enquiry Office of IND (the enquiry office) on 25 March without prior appointment, accompanied by their dog (which meant that one of them had to remain outside at any one time). They were interviewed with the help of a Spanish-speaking member of staff but it was concluded that they would need to return for a full interview. An appointment was made for 30 May at 9.30 am.
4.f. At 9.30 am on 30 May, there was no sign of the applicant and her spouse. An interpreter had been booked by the enquiry office and was present. At 10.45 am the same day, by which time the interpreter had gone, Mr and Mrs A turned up with their own Spanish interpreter. They were late because their interpreter had to take her child to a baby-sitter. It was explained that another appointment would have to be made.

4.g. The next appointment was made for 11.30 am on 10 September. Mr and Mrs A attended on time but the need to book an interpreter had been overlooked by the enquiry office. After a futile attempt to proceed without an interpreter, the interview was rescheduled for 9.30 am on 19 September but at 9.00 am on that date, a friend telephoned IND to say that Mr A was in bed with a sore throat. The interview was postponed once more, this time until 11.30 am on 5 December.

4.h. On 5 December, the interview went ahead as planned, apparently with an interpreter present. The interviewing officer made manuscript notes, which are on the file, and sent a report of the interview to be typed on 30 April 1992 (no explanation was given for the delay in doing this). The conclusion of the interviewing officer, as recorded in the notes, was that the application should be refused in the light of various discrepancies in a number of the answers given by the couple. The file was then mislaid and the report sent for typing disappeared altogether. During this time the application remained unresolved. It appears that solicitors C wrote to IND on 8 July, 21 August, 2 October and 11 November on behalf of Mrs A but only the last two letters are on file. It is not clear what action, if any, was taken on these letters.

4.i. On 5 December the 10-year-old son of Mrs A, arrived in the UK from Colombia. He initially sought entry as a visitor and then his mother asked for him to be admitted for settlement as her dependant. When interviewed, Mrs A told an immigration officer that she and her husband Mr A had separated in January. (Her son was refused leave to enter on 18 December, granted temporary admission until 3 January 1993 and removed on a flight to Bogota on 8 January. He was to return later that year.)

4.j. For most of 1993, Mrs A's file remained missing. A special search was put in hand but with no success. There were a number of approaches to IND by and on behalf of Mrs A during the course of the year: solicitors C wrote again on 12 March to press for a decision on Mrs A's outstanding application; [on 15 July Mrs A telephoned IND]; another firm of immigration advisors telephoned IND and were informed by letter on 29 July that Mrs A's documents could not be located and that they would be contacted in due course; [on 25 October] another firm of solicitors, solicitors D, wrote to IND on her behalf, stating that they now represented her and requesting that any future correspondence be sent to them. The latter firm attended the enquiry office on 11 November to seek a status letter for Mrs A (in the absence of the file, which the public enquiry officer thought was with the Immigration Service, the solicitors were advised that her case was still under consideration). [The enquiry office also told them that they had already sent a status letter, apparently to the Department of Social Security, which they had done following a direct request from Mrs A on 4 November and that they would not issue another.] Solicitors D wrote again on her behalf on 30 November to seek clarification of the situation. On 14 December, in the continuing absence of the original file, a dummy file was opened for the correspondence and other papers which had accumulated over the year.

4.k. Shortly before the opening of the dummy file, the original file found its way back to the officer who had conducted the final enquiry office interview. It is recorded in an undated minute that a refusal notice dated 9 December was sent to Mrs A's solicitors with enclosures, including passports. This appears to have been done in ignorance of the related correspondence and activity described in the preceding paragraph. The firm of solicitors to whom the documents were sent is not specified. It is presumed to have been solicitors C, as this was the only firm which featured on the original file. Because Mrs A's application had been made out of time, the notice correctly notified her that she did not have a right of appeal against the decision. But because IND had by then been notified of a change in her legal representation, the notice was not served properly and was therefore effectively null and void. There is no record as to what was then done with the original file, and it went missing again after this action.
4.l. In December 1993 and early 1994 action continued on the dummy file, the caseworking group concerned (group 15) being unaware of the fact that the enquiry office had refused the application on 9 December 1993. The original file was still missing. During this period, on 6 February 1994, Mrs A gave birth to twins which she said had been fathered by Mr A on 30 June 1993 (Mrs A has stated that they stayed together occasionally after the breakdown of their marriage and that this was the last such occasion).

4.m. On 16 February, solicitors D applied for Mrs A's son to be allowed to remain here with his mother (he had returned to this country from Colombia and been admitted as a visitor on 16 August 1993). IND wrote to the solicitors on 30 March explaining that Mrs A's file was missing and requesting information to enable further consideration to be given to her case and, in turn, that of her son. [IND sent a reminder to the solicitors on 6 May.]

4.n. The solicitors replied on 10 May, effectively confirming that Mrs A still wished to remain on the basis of her marriage to Mr A even though the relationship had broken down. IND responded on 6 June, seeking further clarification and information. [IND sent a reminder to the solicitors on 4 July.] The solicitors replied on 21 July, adding little to their previous correspondence. [In that letter, the representatives said that Mrs A's husband had deserted her in February 1992.]

4.o. In September, there began a process of substantive consideration of the applications by Mrs A and her son on the available information (ie still without sight of the original file, which remained missing, or Mrs A's passport). Eventually, on 31 January 1995, after consulting the policy division about the basis on which Mrs A's application should be considered, both applications [for indefinite leave to remain] were refused (the son with a right of appeal; the mother with such a right only if, in the absence of her passport or other record of her arrival, she could show that she had leave at the time of her original application).

4.p. Late appeals were lodged on 16 February, ie after the expiry of the time limit for appealing (14 days from the date of decision in the case of an appeal under section 14(1) of the Immigration Act 1971) but before the expiry of the period of 28 days leave given under the Immigration (Variation of Leave) Order 1976 from the date of the refusal decision. Before progress could be made on the processing of the late appeals, there was further extended consideration of Mrs A's position in terms of appeal rights. Policy advice was sought. It was concluded that Mrs A's original application had probably been made in time, the crucial indicator being a computer record indicating that she had been given leave to enter expiring on 7 May 1991. The reliability of this entry has to be questioned, since the enquiry office record of the visit there by Mrs A on 25 March 1991 records her date of arrival as 7 November 1989 and the expiry date as 7 May 1990. The coincidence of the same day and month suggests that a manual error was made with regard to the year when the details were entered on the computer. But in the continued absence of the original papers, there was no reason to question this date and in December it was decided (wrongly with the benefit of hindsight) that Mrs A did have a right of appeal.

4.q. The appeal process then continued accordingly, with a statement being sent to the Immigration Appellate Authority on 26 January 1996 that the notice of appeal was not given within the permitted period.
4.r. On 26 June, an adjudicator determined as a preliminary issue that Mrs A and her son had appealed outside the time limit and there were no exceptional circumstances to justify treating the appeals as though they had been submitted in time. An application for leave to appeal to the Immigration Appeal Tribunal was made and such leave was granted on 6 September. By this time, the immigration advisors had taken over as Mrs A's representative.

4.s. On 22 November the Immigration Appeal Tribunal allowed the appeal on the preliminary issue of an entitlement to appeal and directed that a full explanatory statement be prepared. Such a statement was sent to the Immigration Appellate Authority on 7 January 1997. The appeal was listed for hearing on 17 October and the determination of the adjudicator was delivered on 3 December. The adjudicator dismissed both appeals but recommended that the Secretary of State exercise his discretion in favour of the appellants on the grounds of exceptional compassionate circumstances, including the fact that Mrs A had the care of the twins born in February 1994 and of her son.

4.t. On 13 January 1998 the immigration advisors wrote to request reconsideration of the case in line with the adjudicator's recommendation. Because of the volume of work in the caseworking team concerned, a response was sent only on 29 June, when the immigration advisors were notified by letter that the Secretary of State was not prepared to exercise discretion as it was not clear that there were any exceptional compassionate circumstances which had not previously been considered (ie at the time of decision). The letter went on to state that Mrs A and her son had no basis of stay in the UK and should now leave. That was the last substantive action on the case. [On 14 October the Member referred the matter to the Ombudsman.]

4.u. As a result of a further search for all the files which was put in hand because of the Ombudsman's investigation, the original file came to light on 4 December (the destination record shows that it had been "laid by" on 19 September 1995).

Analysis of HO action

4.v. This case has had an unhappy history, from the abortive series of interviews to the loss of the original file for long periods at crucial times. IND was not entirely responsible for the delays in interviewing Mrs A and her husband in 1991, although the failure to book an interpreter for the interview appointment on 10 September 1991 was certainly an error. The disappearance of the original file was the crucial factor. We do not know what happened to it. A possible contributory factor may have been the changes that were then taking place in the system for recording file movements, ie a changeover from movements being recorded manually on paper, with each location in IND maintaining its own record, to a centralised computer file tracking system. This necessitated the bar coding of all existing files and it may be that the original file was removed and lost in the course of that process. However it may be, the loss of [the] file and the failure to keep a proper record of its movements clearly constituted both poor service to the applicant and her representatives and inefficiency.

4.w. It is clear that there was a combination of factors behind the delay of more than 4 years in resolving effectively the application made by Mrs A in December 1990. There were individual errors and shortcomings; there were significant problems in maintaining file movement records under the old system; and there were substantial backlogs of work throughout this period. There is no doubt that an apology is owed to Mrs A for the delay in resolving her applications. It is pure chance that the delays have ultimately operated to Mrs A's advantage since, had the system worked properly, she would probably have been refused leave to remain, with no right of appeal, following her interview on 5 December 1991. That does not in any way excuse IND's inefficiency.

4.x. Although Mrs A and her son have no claim to remain here under the Immigration Rules, the case has been reviewed once more and it has been decided exceptionally in the particular circumstances of her case, including the length of time that she has now been here, that it would be right to allow her and her son to remain indefinitely. The immigration advisors have been invited to forward their passports for endorsement accordingly.

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