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Sixth Report Session 1998-99
Volume 2
OCTOBER 1998 - MARCH 1999
The full report of selected cases
Summary of selected cases
FOREIGN AND COMMONWEALTH OFFICE
Mishandling of an application for entry clearance for a child
5.1 Mrs W complained that the Foreign and Commonwealth Office (FCO), through the British Embassy in Addis Ababa (the Embassy), had failed to progress an application to allow one of her children to join her in the United Kingdom (UK); in particular, that FCO and the Embassy had given misleading advice as a result of which Mrs W had travelled to Africa to take the child to the Embassy for a DNA test, which the Embassy had then refused to carry out.
5.2 My investigation began in September 1998 after the Ombudsman had obtained comments from FCO 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.
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Statutory and administrative background
5.3 Under 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. A Somali national is required on arrival in the UK to show an immigration officer a valid passport or other identity document endorsed with a UK visa issued to him for the purpose for which he seeks entry to the UK. Applications for entry clearance are in the first instance made to an entry clearance officer (ECO) at British diplomatic or consular posts overseas. If entry clearance is granted the passport or identity document is endorsed with a visa.
Investigation
5.4
1996
On 6 June 1996 a law centre wrote on Mrs W's behalf to the Embassy to apply for one of her children to be allowed entry clearance to settle with her in the UK. They said that in 1995 Mrs W had been granted indefinite leave to remain in the UK but had left behind her baby with his father, who had since died. The centre said that Mrs W would approach the Embassy shortly to make a formal application. On 20 June the centre wrote to the Migration and Visa Department (MVD) of FCO seeking assistance with Mrs W's case. They explained that Mrs W's child was in Djibouti and asked if the application for entry clearance could be dealt with in the UK as it would be difficult for Mrs W's cousin, who was caring for the child, to take him from Djibouti to Addis Ababa. They suggested that if that could be done Mrs W could travel to Addis Ababa to collect the entry clearance document and then travel to Djibouti to pick up the child. On 2 August MVD faxed the Embassy a copy of the centre's letter. They said they were unable to process the application in the UK but asked if the Embassy with their local knowledge had any helpful suggestions. On 5 August the Embassy replied that because Mrs W had not mentioned the child when she had collected a visa for herself and her other seven children to go to the UK in 1995 they found the application suspicious, particularly as the years of birth of the other children ranged from 1979 to 1986 and the child who was the subject of the application had been born in 1995. They said that they would wish to DNA test mother and child in order to prove the relationship. They suggested that the child could be tested either at the British Consulate in Djibouti or at the Embassy. They said that there was no queue for a DNA test.
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5.5 On 6 August MVD replied to the centre saying that Mrs W's child had not been mentioned at the time of her own visa application and the Embassy had suggested that Mrs W and the child should undergo DNA tests. Mrs W would be tested in the UK and the child either at the British Consulate in Djibouti or at the Embassy. They said that if Mrs W agreed to that proposal she should confirm it in writing to the Embassy. On 20 August the centre wrote to the Embassy confirming that Mrs W agreed to her and the child undergoing DNA tests. They said that the child would need to be tested in Djibouti. They gave the name and address of the person caring for the child in Djibouti. On 30 August an ECO at the Embassy wrote to the centre saying that there were no facilities for DNA testing at the British Consulate in Djibouti and that DNA tests could only be carried out at the Embassy. On 16 September the centre replied that they had been told by FCO that it was possible for the child to be tested in Djibouti but in the circumstances were arranging for him to travel to Addis Ababa. They asked that the Embassy liaise with the person with care of the child about that. They also asked whom they should contact in the UK to arrange Mrs W's DNA test. On 2 October the ECO wrote to the centre saying that the child and guardian should go to the Embassy. She gave the name and address of the company in London whom Mrs W should contact about her DNA test. On 15 October the centre faxed the Embassy asking them to confirm that Mrs W would not have to pay for the DNA test. On 12 December the centre faxed the Embassy asking for an urgent reply to their enquiry of 15 October as they needed to confirm the arrangements about payment before arranging a test for Mrs W. On 16 December the ECO replied that the centre's letter of 15 October did not appear to have reached her; she said that the DNA testing would take place under a government scheme.
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5.5
1997
On 30 April 1997 the centre sent Mrs W a letter of introduction to show to the Embassy staff when presenting herself and the child to arrange for DNA testing for the child. On 6 June Mrs W was interviewed at the Embassy by a member of their locally-engaged staff and submitted a visa application form dated 30 May on behalf of the child. According to the centre's subsequent account, on 10 June Mrs W telephoned the centre from Addis Ababa, having collected the child in Djibouti and gone to the Embassy to arrange an appointment for the DNA test. Mrs W said that the Embassy had refused do the test. On 11 June the centre telephoned the Embassy to request that the test be carried out, saying that Mrs W had travelled to Africa specifically to take the child for testing. The centre have said that they spoke to the ECO with whom they had corresponded previously, who maintained the refusal to carry out the test, saying that she would need the authority of the Home Office (HO) to do so and that such authority would take between four months and a year to obtain. The ECO allegedly denied having sent any previous letters to the centre on the subject but undertook to complete an application form for family reunion and send it to HO. That day the Embassy sent Mrs W's application form and interview notes to HO for determination.
5.7 On 18 July the centre wrote to the Embassy to complain at the way in which Mrs W's case had been handled. They said that they felt that they had been misled by the Embassy into believing that a decision had been taken that DNA testing was required, as a result of which Mrs W had travelled to Addis Ababa. They said that when she had requested an appointment for DNA testing there she had been told that no decision had been made by then as to whether DNA testing was required and the application would have to be sent to HO first for consideration, which would take at least four months and up to a year. On 6 August the Embassy wrote to the centre. They said that the child could be tested at public expense; tests took place on any Thursday morning, or if the centre preferred a formal appointment could be made. They said that the suggestion that a decision as to whether to DNA test would take four months to a year was a misunderstanding; they regularly advised applicants that after an application had been referred to HO a decision could take four months or more.
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5.8 On 7 October the Member wrote to the Embassy. She said that she understood that on 2 October 1996 the ECO had suggested that Mrs W should go to the Embassy to have the child DNA tested but on arrival she had been told that no decision had been made to DNA test and that the application would have to be sent to HO for consideration. The centre felt that Mrs W had travelled to Addis Ababa needlessly as a result of misleading advice from the ECO. The Member sought clarification. On 8 October the Embassy acknowledged the Member's letter and sent it to MVD to reply. On 12 November the centre wrote to HO giving information which HO had requested about Mrs W's circumstances in order to determine the child's entry application. They said that they had been in correspondence with the Embassy about proving the relationship. The Embassy had suggested and arranged for DNA testing but when the child had been taken to have his test the Embassy had refused to do it, saying that only HO could decide to DNA test; that had caused considerable confusion and delays and they were in the process of complaining to the Embassy about it. They asked HO to inform them immediately if they considered DNA testing to be necessary so that that could be arranged. On 13 November MVD sent a fax the Embassy asking about the procedure for DNA testing, specifically if appointments could be made and if there was a waiting list of four to twelve months. MVD also asked why Mrs W had been told that no decision had been made on whether to DNA test, as the Embassy's fax of 5 August 1996 to MVD had been very clear that Mrs W should be tested. On 19 November the Embassy replied that their clinic in Addis Ababa performed DNA testing of applicants. There was no waiting list and appointments could be made for any Thursday morning. Applicants should make themselves known to the Embassy, who would make an appointment on their behalf. Tests were sent on the same afternoon to the UK and results were usually forthcoming within eight weeks. They said that Mrs W would not have been told that no decision had been made when it had; whatever the misunderstanding, if she made herself known to the Embassy they would go ahead with the test. On 15 December HO faxed the Embassy regarding Mrs W's entry clearance application form. They suggested that the Embassy arrange for DNA tests. On 17 December HO wrote to the centre informing them that they had suggested DNA tests.
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5.9
1998
On 6 January 1998 the centre wrote to the Embassy. They said that they understood that HO had requested that the Embassy arrange DNA testing for Mrs W's child. They said that in view of the history of the matter they required categorical written assurance that DNA testing would be carried out on both the child and Mrs W if they presented themselves to the Embassy. They added that the Member had yet to receive a reply to her complaint of 7 October 1997. On 21 January the Embassy replied that the situation had changed at the Embassy and there was then a queue for taking DNA samples. However they would be happy to arrange an appointment. They could not give the categorical written assurance requested as they could not guarantee that their doctor would not be called away to deal with an emergency, but would do their utmost to ensure that testing took place as soon as possible. They suggested that the Member contact MVD's correspondence unit if she was still waiting for a reply. On 29 January the centre wrote to the Member. They said that the situation for Mrs W had got worse; HO were insisting on DNA tests but Mrs W, who was receiving income support, could not afford to make another trip to Addis Ababa and there was no-one else who could take the child from Djibouti to Addis Ababa. The centre suggested that FCO should make Mrs W an ex gratia payment equivalent to the cost of the return fare to Djibouti. On 6 February the Member wrote to MVD asking for a reply to her letter of 7 October 1997 and briefing on developments in the case. She enclosed a copy of the centre's letter of 29 January to her. On 25 March MVD replied to the Member, apologising for the delay in doing so. They said that the Embassy had written to the centre on 21 January advising them to make an appointment for DNA testing but they had yet to do so. There was a one month waiting list for testing; tests were carried out on Thursday mornings but no assurance could be given because the doctor might be called out to an emergency at any time. They said that on 2 October 1996 the ECO had advised the centre that the child and guardian (sic) should attend the Embassy but it had been the guardian's choice to go to Addis Ababa without confirmation that an appointment had been made. On the subject of an ex gratia payment they said it would be inappropriate for government funds to be used to pay for the travel costs of foreign nationals when applying for a visa.
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FCO's reply to the complaint
5.10 The ECO who had corresponded with the centre in 1996 about Mrs W's case provided the Ombudsman with a written statement in which she said that Mrs W's visa application form had been submitted on 30 May 1997 and Mrs W had been interviewed on 6 June; she had explained that there was a week's delay in interviewing applicants at that time. All cases of Somalia family reunion were referred to HO for decision as a matter of standard procedure and such applicants were advised accordingly. If DNA testing was to be carried out at the Embassy, applicants were advised to make an appointment to avoid unnecessary travel from Djibouti or Somalia; the doctor could complete only six to eight tests on Thursday mornings, so that the samples could be sent to the laboratory in London by the diplomatic bag which left Addis Ababa on Thursday afternoons. The papers in Mrs W's case suggested that that advice had been ignored, as frequently happened, and that the advice regarding a decision by HO on the application, which could take between four months and a year, had been mistakenly taken by Mrs W and the centre to refer to a decision on whether or not to DNA test, which was a frequent misconception. She would not have undertaken to fill in an application form and send it to HO; the relevant form had already been completed on 30 May and she would simply have said that she would be submitting the case to HO for decision.
5.11 The Embassy's management said that they had to assume that a locally-engaged member of staff had told Mrs W that she could not be DNA tested, without having consulted a UK-based ECO. That had been wrong and steps had been taken locally to rectify the situation. (FCO have since confirmed that they have issued instructions that all applicants should be seen by a member of the UK-based staff.)
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5.12 FCO's Chief Clerk said that Mrs W had not been advised to travel from the UK to take the child from Djibouti to the Embassy either to make the application or for the DNA test. DNA tests, when needed, were done when HO instructed, not at the time the application was first submitted. Nevertheless he accepted that the written advice provided by the Embassy between August and December 1996 had not been as explicit as it should have been; the Embassy had taken steps to clarify the guidance provided in future. (The Permanent Secretary of FCO has endorsed that view and asked me to convey his apologies to the centre and Mrs W for that failing; that I gladly do.) Mrs W's visit to the Embassy in June 1997 had not been made on FCO's advice, nor had the Embassy been forewarned of it. On arrival she had been interviewed and her application accepted and forwarded to HO for processing. The ECO appeared to have handled the case according to well established practice. The Chief Clerk concluded that Mrs W had made the journey from the UK at her own initiative and without consulting the Embassy about the timing or principle; FCO could not therefore accept her claim for an ex gratia payment for the cost of the journey.
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Findings
5.13 The suggestion that Mrs W and her child should be DNA tested originated with the Embassy in August 1996 (paragraph 5.4). It is unfortunate that they initially indicated that that could be done at the British Consulate in Djibouti, but their letter to the centre of 30 August corrected that mistake before any harm was done by it (paragraph 5.5). On 16 September the centre informed the Embassy that they were arranging for the child to travel there from Djibouti; it appears that at that stage it was envisaged that the child would be taken to the Embassy by his guardian in Djibouti rather than by Mrs W. On 2 October the ECO confirmed that the child and guardian should go to the Embassy. There was nothing in that letter, or in the subsequent correspondence about payment, to suggest that any further appointment was necessary. That seems to have been correct, as the Embassy's letter of 6 August 1997 (paragraph 5.7) said that a formal appointment was not necessary; the applicant had simply to attend on any Thursday morning. The ECO's letter of 2 October 1996 might have been slightly more informative than it was; equally, however, it might have been wise for Mrs W to have written to the Embassy again in 1997 to confirm arrangements before travelling to Addis Ababa, in view of the time which had elapsed since their last correspondence on the matter in December 1996. However, neither of those factors explain the Embassy's failure to arrange for the necessary blood sample from the child while Mrs W was in Addis Ababa.
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5.14 The Embassy have suggested that their refusal to take the blood sample was probably the result of a mistake by locally-engaged staff (paragraph 5.11). The reason appears to have been a perceived lack of instruction from HO to DNA test. I am prepared to accept that that reason may have become confused with the separate question of the need for HO to decide the application and the time it would take them to do so. That does not alter the fact that having interviewed Mrs W regarding an application in support of which DNA testing had already been deemed necessary, the Embassy sent her away without having carried out the routine procedure required to obtain a blood sample. I recognise that it might not have been practicable to do both the interview and the sample collection on the same day, but it appears that Mrs W and the child were available for more than a week, which included one Thursday morning (when DNA tests were carried out). Moreover, given the particular circumstances of her case I consider that it should have been incumbent upon the Embassy to make a special effort to accommodate her. In any event it seems that in dealing with Mrs W's application the Embassy overlooked the fact, which the earlier correspondence made plain, that contrary to normal routine the case had already been identified as one in which DNA testing was necessary. I criticise the Embassy for ignoring the history of Mrs W's case and therefore failing to deal with it effectively by ensuring that all parts of the application process which had been identified as necessary in relation to it, as opposed to merely the minimum usually required by standard routine, were completed within the time frame offered by Mrs W's visit to Addis Ababa. That was poor administration. I welcome the Embassy's assurance that remedial action has been taken to prevent a repetition.
5.15 I consider next the question of compensation. I accept that in such matters FCO are obliged to be fair not only to Mrs W but also to the taxpayer. It appeared that Mrs W had on her own initiative travelled to Africa to take the child to the Embassy, without forewarning them that she would be travelling in person from the UK rather than sending her cousin with the child from Djibouti as had earlier been suggested. In those circumstances, while recognising that the effect of the Embassy's mishandling of her visit was that it failed fully to achieve its purpose, I would normally be unable fully to support the centre's request for an ex gratia payment to meet the cost of the journey. The Ombudsman's staff therefore asked the centre why it had not been possible for Mrs W's cousin to take the child from Djibouti to Addis Ababa. The centre replied that the cousin had been unable to travel as she had eight children of her own living with her, the youngest of whom was aged five. Mrs W had asked if the cousin could go to the Embassy and at the time it had been hoped that she could do so, but she had informed Mrs W that she was unable to leave her children. Mrs W had therefore had to travel from the UK.
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5.16 In view of that explanation it seemed to me that, exceptionally, there was a case for FCO meeting the cost of a second journey to Africa for Mrs W, the need for which had arisen largely as a result of the Embassy's maladministration. I invited the Permanent Under Secretary of State at FCO to consider that. After discussion, the Permanent Under Secretary accepted the exceptional circumstances of the case and agreed to contribute to the travel costs consequent upon the need for a second visit to the Embassy. FCO would reimburse (subject to the production of appropriate receipts) two thirds of the actual cost of Mrs W's air fare to Addis Ababa, via Djibouti, together with the full actual cost of the Djibouti - Addis Ababa - Djibouti air fare for her child. I welcome that.
Conclusion
5.17 Mrs W received a poor service from the Embassy in Addis Ababa in connection with her application for her child to join her in the UK. The Embassy's management have subsequently taken steps to improve the service offered. The Permanent Under Secretary of State has apologised to Mrs W and agreed that FCO will contribute to the additional travel costs incurred. I regard that as a suitable outcome to a justified complaint.
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