Home > Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - April - September 1999 > C.164/00 Full text
The full text of selected cases
HOME OFFICE
5. Case No. C.164/00
Immigration and Nationality Directorate: delay in dealing with an application for leave to remain in the United Kingdom
The complaint
5.1. Mr and Mrs A complained of inordinate delay by the Immigration and Nationality Directorate (IND), part of the Home Office (HO), in determining Mr A's application for leave to remain in the United Kingdom (UK) as a foreign spouse.
Background
5.2. 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 an indefinite period. Under sections 3(3)(a) and 4(1) of the 1971 Act the Secretary of State may, once a person has entered the UK, vary the conditions or duration of limited leave by enlarging or removing the time limit on its duration. Under section 3(5)(a) of the 1971 Act a person shall be liable to deportation if, only having a limited leave to enter or remain, he or she does not observe a condition attached to that leave or remains beyond the time limited by that leave. Under section 5(2) of the 1971 Act the Secretary of State may at any time revoke a deportation order made against a person, by a further order. Paragraph 390 of the Statement of Changes in Immigration Rules 1994 sets out the circumstances which will be taken into account in consideration of an application for revocation of a deportation order - including, among other things, any representations made in support of revocation and the interests of the applicant, including any compassionate circumstances. Paragraphs 285 and 288 of the 1994 Rules allow for the spouse of a British citizen to be granted an extension of 12 months leave to remain in the UK, after which he or she may be granted indefinite leave to remain in the UK on the basis of his or her subsisting marriage.
5.3. As part of an IND reorganisation between December 1998 and February 1999, the functions of the section of IND that dealt with Mr A's application were absorbed into a new integrated casework directorate.
Back to top
HO's comments on the complaint
5.4. An edited extract from the Permanent Under Secretary'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
5.5. After the Ombudsman's staff had referred Mr and Mrs A's complaint to the Permanent Under Secretary of State at HO, on 26 May the Secretary of State revoked the outstanding deportation order against Mr A. On 8 June IND granted Mr A leave to remain in the UK for 12 months, after which they said he might apply for indefinite leave to remain in the UK. On 8 July Mr and Mrs A wrote to the Member; they said that they were delighted with the outcome of their case.
Back to top
Findings and conclusion
5.6. There were various factors which contributed to the inordinate delay in resolving Mr A's application. In particular, the Permanent Under Secretary has acknowledged that the decision to suspend action on it pending a review of certain aspects of deportation policy was misguided, and that IND could and should have made a decision on Mr A's application in August 1998. I regard the Permanent Under Secretary's apologies to Mr and Mrs A for IND's delays, which I now pass on through this report, and IND's swift resolution of Mr A's application after the Ombudsman's intervention, as a satisfactory outcome to a justified complaint.
Back to top
APPENDIX
Edited extract from the Permanent Under Secretary's comments on the complaint
5.a. Mr A's application has not been dealt with as quickly as we would have liked. The delays can be attributed to large casework backlogs which had built up in the various directorates within IND before the transition to the new integrated casework directorate; a policy review relating to deportation policy where children are involved; and current difficulties within the integrated casework directorate. With hindsight, I believe that the decision to suspend action on this case pending the policy review was misguided, and that IND could and should have concluded it last August.
5.b. I apologise to both Mr and Mrs A for the delays in dealing with this case. However, I am also mindful that in this case Mr A had broken contact with IND for over five years following the signing of a deportation order against him, before submitting his application. You will appreciate that in cases involving individuals who are subject to enforcement action, consideration of the case is not always straightforward.
5.c. Mr and Mrs A have requested an early decision on their application and I am pleased to inform you that this has now been resolved. On 26 May, we informed Mr A's solicitors that it has been decided exceptionally, in the light of all the circumstances (including his marriage to a British citizen) to revoke the deportation order and to grant Mr A leave to remain in the UK. The Member has also been informed of this decision.
Back to top
Narrative
5.d. A deportation order was signed against Mr A, who had originally entered the UK on 28 August 1989, on 3 March 1992, at which point he broke off contact with IND. On 18 December 1997, Mr A's solicitors submitted an application for the deportation order to be revoked and for leave to remain to be granted on the basis of his marriage to a British citizen. On 29 December, the solicitors were invited to re-submit the application on the appropriate application form. They wrote questioning the need for this on 7 January 1998 and, after a reply was sent the following day, an application form was duly submitted on 13 February.
5.e. A letter was sent to Mr A's solicitors on 24 June giving details of his immigration history and explaining that the application fell to be considered under HO policy guidelines relating to marriages undertaken by those who are subject to enforcement action and as Mr A had entered into his marriage in the full knowledge that he was the subject of deportation action, he could have had no expectation of leave to remain being granted on the basis of his marriage. The letter did however seek further information about contact between Mr A's stepson and his natural father. (This delay before consideration of the application commenced was regrettable and was due to a backlog of work in the then immigration service enforcement directorate.)
5.f. Mrs A telephoned IND on 13 July, when she was told that a reply was awaited to the letter of 24 June and that she should contact the solicitors. She telephoned again on 23 July but the file is simply minuted "progress call from Mrs A". In response to a further telephone call on 31 July, Mrs A was told that the officer dealing with her case had been on a week's leave and that there had therefore been no progress. There was also discussion about whether representations had been received from the Member. There is nothing contained in the file notes of any of these calls to suggest that Mrs A was told (as, by her account, she had been) that a decision would be made on the case within the next week. On 31 July (prompted by Mrs A's call that same day), a statement having by then been received from Mr A's stepson's natural father to the effect that he had regular contact with his son, the caseworker recommended that Mr A be granted leave to remain. However, on 21 August a decision was deferred pending a policy review by HO ministers in relation to children resident in the UK whose parents are subject to enforcement action.
5.g. The policy review related to the time beyond which it would not normally be appropriate to seek to remove an immigration offender who had a child who had lived in the UK for a number of years. When considering whether to proceed to deportation action against an individual, the presence of children is a compassionate factor which must be considered. The circumstances will vary from case to case and have to be balanced against other factors. In all cases, however, the longer the child has been here, the greater will be the weight to be attached to this as a compassionate factor. The general presumption prior to ministers' review of the policy was that a child who had spent less than ten years in the UK would be able to adapt to life abroad. Ministers decided to reduce this to seven years; this change was announced in February 1999. With hindsight, the decision to defer action on Mr A's case pending the policy review was misguided. The caseworker had already concluded in Mr A's favour, based on all the circumstances of the case. The policy review could not have affected the outcome.
5.h. On 19 August a letter was sent to the Member, in response to one from her dated 27 July, explaining Mr A's immigration history and assuring her that no final decision would be taken on whether or not to proceed with deportation action until all the compassionate factors had been fully considered. Mrs A has said that she had telephoned IND in September and that they had told her that a decision would be made by November. There is no record of this conversation on IND's file.
5.i. On 12 January 1999 the Member wrote to the Parliamentary Under Secretary of State on behalf of Mr and Mrs A. The Member also copied that letter to IND. The Parliamentary Under Secretary of State replied on 10 February referring to his earlier letters to all Members, in which he had explained about major changes which were occurring in IND and problems likely to arise during the transitional period. He said that this was likely to last until the end of February, during which time it would be helpful if the Member's constituents did not contact IND. (The earlier letters had explained that the changes were the first part of a programme aimed at significantly improving both the service which IND provided to applicants and the effectiveness of immigration control, as part of a strategy for a fairer, faster and firmer immigration system. Previous problems with delays and large backlogs of work had indicated that a change in working practices was long overdue. As part of the transition, backlogs of work awaiting action were categorised and sent to a "work in progress" store to await allocation to a caseworker). IND replied to the Member's letter of 12 January on 16 February saying that Mr A's application was being held in a "work in progress" store and could not be retrieved for immediate action. IND asked the Member to encourage her constituents to refrain from visiting or telephoning IND about the application.
5.j. Further submissions to ministers about the change in policy relating to children were made in February and an announcement was made at the end of that month. On 8 March Mrs A wrote to IND. She said that she understood the case was not straightforward, but felt that the delay in making a decision was totally unacceptable. She had been informed that, due to the reorganisation of IND, she could not even telephone the department dealing with her husband's case; therefore she was writing to ask for information. As at 15 April Mr and Mrs A had not received notification of the decision on the application. They asked the Member to refer the matter to the Ombudsman; she did so on 16 April. At this time the files were still held in the "work in progress" store. The upheaval caused by the major changes referred to above had created a number of practical difficulties still to be overcome.
Back to top
Previous < Contents > Next
|
