5. Mr I complains about UKVI’s delay in providing him with a decision on his application for discretionary leave, which he submitted on 15 September 2017.
6. He says the delay has caused him worry as he is expecting a child and wants to be able to provide for them (he says he has been unable to work due to the Home Office’s delay in dealing with this).
7. He would like a financial remedy.
8. Mr I applied for discretionary leave (a form of leave to remain that is granted outside of the immigration rules) on 15 September 2017. This was around three years and one month after his previous leave to remain had expired.
9. He also submitted a fee waiver application. This is an application to reduce or remove the cost incurred when applying for a visa, when the individual cannot afford to pay the full amount.
10. UKVI approved Mr I’s fee waiver application on 15 November 2017 and gave his case to a caseworker for consideration.
11. The UKVI caseworker submitted a request for a police national computer (PNC) check on 12 December 2017. The PNC is a system which stores information about an individual’s criminal record.
12. The PNC check completed on 29 December 2017 showed there was an impending prosecution against Mr I. As a result of this UKVI put his application on hold.
13. UKVI asked for another PNC check on 11 April 2018. The PNC showed the impending prosecution against Mr I was still active. His case remained on hold.
14. During this time, Mr I’s solicitor regularly requested updates from UKVI. UKVI’s responses detailed it could not provide a timescale on when it would reach a decision on Mr I’s application. UKVI’s response dated 21 June 2019 did however explain that it would provide Mr I with a decision by 13 December 2019.
15. On 6 August 2019, UKVI asked for another PNC check. The PNC check showed that the impending prosecution against Mr I was still active. His case remained on hold.
16. Mr I’s impending prosecutions were resolved on 12 August 2019. UKVI cleared his application for consideration the same day.
17. On 20 February 2020, UKVI asked Mr I’s solicitor for additional information it needed to consider his application. Mr I’s solicitor responded to this request soon after on 24 February 2020.
18. Due to the impact of the COVID-19 pandemic, UKVI put off all decision making on applications between April and June 2020.
19. UKVI refused Mr I’s application for discretionary leave on 14 September 2020, nearly three years after he submitted his initial application.
22. When considering if there were any failings in the service UKVI provided we looked at what should have happened. We then compared this to what did happen. If there was a difference between the two, we have explained if this amounts to a failing.
23. The Discretionary leave guidance says if an individual applies for discretionary leave after their leave has expired, their application will be considered as out of time. Unlike when an application is submitted in time, UKVI do not have service standards on how long it should take to consider applications submitted out of time.
24. Because of this, we have considered if UKVI dealt with Mr I’s application in line with our Principles. Our Principles say that public bodies should deal with people promptly and within a reasonable timescale. We have carefully looked into why it took UKVI nearly three years to reach a decision on his application.
25. UKVI explain that between September 2017 and August 2019, Mr I’s criminal activity caused a delay in its ability to consider his application.
26. From the evidence we have gathered, we can see that impending prosecutions were active prior to 12 August 2019.
27. The General grounds for refusal guidance says if a person has a prosecution pending for an offence, their application must be put on hold awaiting the outcome of the criminal proceedings.
28. We can see that UKVI paused its consideration of Mr I’s application until there were no impending prosecutions active. UKVI’s actions here are in line with the General grounds for refusal guidance. This delay was outside of UKVI’s control.
29. UKVI did not act on Mr I’s application between 12 August 2019 and 20 February 2020, when it asked Mr I’s solicitor for more information. We have seen no evidence that UKVI could not have acted on the application during this time.
30. UKVI failed to act promptly and within a reasonable timescale here. It waited six months before asking Mr I’s solicitor for further information, when it could have done this sooner.
31. In addition to this, we have also seen that in June 2019, UKVI told Mr I it would provide him with a decision by 13 December 2019. This did not happen. Our Principles say that public bodies should do what they say they are going to do. We have identified that UKVI failed in this regard.
32. On 24 February 2020, Mr I’s solicitor responded to UKVI’s request for information. At this stage UKVI had the information it needed to reach a decision on Mr I’s application.
33. UKVI explained it could not reach a decision soon after this date as it suspended all decision making between April 2020 and June 2020. This was due to the impact of the COVID-19 pandemic. It said that during this time it was preparing staff for alternative ways of working.
34. The delay between April 2020 and June 2020 was outside of UKVI’s control and unavoidable. We are not critical of UKVI’s actions during this period.
35. We cannot see that any action was taken on Mr I’s application before this though, between 24 February 2020 and April 2020.
36. UKVI had the information to consider Mr I’s application at this stage. It did not act on this, which added to the delay in considering Mr I’s application by roughly one month. We have found UKVI failed to act promptly here.
37. After June 2020 we can see UKVI were considering Mr I’s application until it refused it on 14 September 2020. Understandably, once UKVI began its decision making again in June 2020 there would have been a backlog of cases. This would have contributed to the delay in considering Mr I’s application.
38. Had UKVI considered Mr I’s application promptly after 12 August 2019 and had UKVI issued Mr I with a decision on or prior to 13 December 2019, this delay would not have been extended by the COVID-19 pandemic. On the balance of probabilities, UKVI should have issued Mr I with a decision on his application before the COVID-19 pandemic began.
Impact of failings
39. These failings caused a delay of approximately seven months where UKVI could but did not act on his application. Mr I says because of this delay he was unable to work. He was also worried that if the delay continued, he would not be able to provide for his child.
40. Mr I submitted his application for discretionary leave out of time. This means that his previous leave had ended. Because of this he did not have a legal right to work in the UK. UKVI’s delay in considering his application did not change his position.
41. When UKVI did reach a decision on his application, it refused it. We have seen no evidence that suggests UKVI would have reached a different decision if it had considered his application sooner. He still would not have had the right to work in the UK.
42. We recognise the worry Mr I described at a time when he was expecting a child. But the delay in handling Mr I’s application would not have had an impact on his ability to work in the UK and, in turn, his ability to provide for his child.
Summary
43. Although UKVI delayed its consideration of Mr I’s application, this delay did not affect Mr I’s ability to work in the UK before or after the delay period. Therefore, we are partly upholding this complaint.
1. We have found that UKVI failed to act on Mr I’s application promptly or within a reasonable timescale between 12 August 2019 and 31 March 2020. We have also found that UKVI failed to do what it said it would do. It did not provide Mr I with a decision on his application by 13 December 2019.
2. Based on the evidence we have seen, we cannot link these failings to the way Mr I says he has been impacted. Mr I was unable to legally work in the UK solely because his previous leave had elapsed, not because of UKVI’s failings.
3. Also, on balance, UKVI would have refused Mr I’s application even if it had reached a decision sooner. This means that he would not have been able to work in the UK even if the delay was shorter. His circumstances did not change because of the delay.
4. We are partly upholding this complaint.