Legal fees
14. UKVI refused Ms A’s claim for legal fees, noting in their final complaint response:
‘As previously outlined, Responder Hubs and Border Force will only consider reimbursing customers for legal fees if the costs have been incurred as a direct result of its maladministration and the customer could not reasonably have been expected to take any further steps of their own in trying to resolve the matter without recourse to legal assistance.
I would not expect you to have gone into the same depth as the Immigration Judge, I do believe that the points you raised at appeal were not sufficiently complex and the process of how to lodge an appeal is outlined in your original refusal. I therefore do not believe that you could not submit it yourself and I am unable to uphold this part of your claim.’
15. When we spoke with Ms A, she told us that she felt UKVI had taken wording from her initial complaint and used it against her. She had noted in her complaint to them, which is also quoted in UKVI’s first complaint response:
‘this was not a complex case, the appeal was allowed on a point of law…’
Ms A told us that this is unfair, she is not a trained legal professional and had reiterated information provided to her by her legal representatives in their preparation of her case, prior to appeal. She told us that she felt she had no choice in obtaining legal representation due to a complete lack of confidence in navigating a legal arena and had made every effort, in writing to UKVI and her MP, to highlight the error prior to appeal. She says as UKVI refused to reconsider her application against the information she provided, she was left with no choice but to engage legal counsel to navigate a legal system in order to retain the life she had made in the UK for over 10 years.
16. We have seen Ms A’s reconsideration request, dated 4 July 2019, in response to the initial refusal decision. The request clearly explains why the decision to refuse on the grounds of prolonged absence was erroneous and references the immigration rules in place in 2012. UKVI refused the reconsideration request in their letter dated 12 July 2019, noting that the request did not meet with the reconsideration criteria, as reconsiderations would not be accepted where right to appeal applies.
17. We looked at UKVI’s Ex-Gratia Payments Financial Redress Guidance. This says, in regard to claims of reimbursement of legal fees:
‘1.5.50 UK Visas & Immigration, Immigration Enforcement and Border Force will only consider reimbursing customers for legal fees if the costs have been incurred as a direct result of its maladministration and the customer could not reasonably have been expected to take any further steps of their own in trying to resolve the matter without recourse to legal assistance.’
We also looked at UKVI’s reconsideration request criteria, which says in regard to reconsideration requests:
‘You might be able to ask for the decision on your visa or immigration application to be reviewed if you applied in the UK.
This is known as a ‘reconsideration request’… You can’t ask for a reconsideration if you have a right to an appeal or a review.
When you can make a reconsideration request
You can make a reconsideration request if you believe immigration rules or policies weren’t followed correctly when the decision was made.’
18. We know that in making her reconsideration request prior to the appeal, Ms A attempted to resolve the matter without recourse to legal assistance. UKVI refused this request as it did not meet with the criteria, as appeal rights applied.
19. We looked at our own Principles for Remedy, which says:
‘In putting right any injustice or hardship suffered as a result of maladministration or poor service, the public body should assess all the relevant circumstances in a balanced way. This means taking into account both objective evidence and more subjective views of the impact of the injustice or hardship. In some cases, the remedy will be easy to work out; in others, it will be more difficult because of the number of factors to take into account.’
and
‘Criteria for deciding remedies should be clear. But they should not be applied rigidly or mechanically in a way that prevents staff and their managers considering the fairest and most appropriate remedy in all the circumstances.’
and
‘Each case must be considered on its own merits. Any guidance or procedure that public bodies use to decide remedies should be flexible enough to enable the public body to consider fully:
· the individual circumstances
· the need to provide an appropriate remedy for the injustice or hardship sustained.’
20. On consideration of the above, we found that Ms A did attempt to resolve the matter without recourse to legal assistance, in making contact to her MP for their support and by contact to the caseworker. That attempt, by means of reconsideration request, was refused in line with UKVI’s criteria which provided no alternative resolution other than appeal.
21. We considered UKVI’s reference to Ms A’s statement, that the case was not a complicated one, as its reasoning for refusal to reimburse her legal fees. UKVI did not accept that she could not have represented herself at appeal. As highlighted above, Ms A told us that she had noted this in her complaint as her legal representatives had advised her of this after she had won her case.
22. We saw evidence that indicated Ms A had sought legal representation in submitting a previous application to UKVI in 2012 and again in 2019. While this is not required as part of the application process, this demonstrates to us that Ms A was not confident in dealing with these matters without the support of a legal adviser.
23. UKVI’s own guidance on financial remedy says:
‘Balance of probabilities
1.2.4 In cases where the process of gathering evidence has been exhausted, but it remains unclear from the available evidence whether a particular event/incident occurred, or whether a particular assertion is true, decision makers should decide the case on the balance of probabilities.
1.2.5 The balance of probabilities involves deciding whether it is more likely than not that an event/incident occurred, or that an assertion is true. If the evidence is contradictory it should be decided whether there is enough evidence in favour of one conclusion or another
and, specifically on reimbursement of legal fees:
Legal fees
1.5.50 UK Visas & Immigration, Immigration Enforcement and Border Force will only consider reimbursing customers for legal fees if the costs have been incurred as a direct result of its maladministration and the customer could not reasonably have been expected to take any further steps of their own in trying to resolve the matter without recourse to legal assistance.’
24. We know that Ms A is not a legal professional and there is evidence that she relied on solicitor’s advice to submit previous applications. We have seen no evidence to indicate that she would or should have the confidence to argue points of law within a judicial setting.
25. We found that Ms A did take steps of her own to avoid incurring legal fees, by way of MP contact and reconsideration request, which was prevented in turn through the reconsideration criteria as appeal rights applied. We found, in line with our principles, UKVI should have had the flexibility to look at the valid points Ms A was raising about its error in considering her application. This was an opportunity for UKVI to put right its error. Unfortunately, it did not do so.
26. We found that Ms A’s choice in engaging legal representation for appeal was a reasonable one and in line with her historic actions when dealing with immigration matters. We could not see that UKVI applied fair and reasonable consideration of the circumstances in refusing to reimburse legal costs. This consideration fell short of what we would expect to see in line with UKVI’s own guidance in remedy and our Principles for Remedy, and we consider this to be maladministration. We found that Ms A would not have incurred the legal fees had UKVI considered her application correctly in the first place, or had it acted flexibly when she asked it to reconsider her application. UKVI has not put right this injustice and so we uphold this aspect of the complaint.
Loss of earnings
27. Ms A has acknowledged that the loss of her previous employment was due to her employer losing their Sponsor Licence and not any action of UKVI. She said that throughout the time taken from refusal of her application to being granted ILR, she lost her right of access to employment and as such suffered a subsequent loss of potential earnings of £18,974.34.
28. UKVI rejected the claim for loss of earnings, noting that the earnings were potential and that it is not usual practice to award payments in this regard as it could not be sure what employment an applicant would have been able to obtain and when.
29. UKVI’s guidance on Financial Redress, in regard to potential loss of earnings, says:
‘1.5.35 Payments on the grounds of maladministration for potential loss of earnings where employment had not commenced are not generally made. However, where a customer claims exceptional circumstances, these will be considered on a case by case basis.’
30. Whilst we acknowledge that Ms A’s rights to access employment were removed during the delay in granting ILR (which we have considered further under ‘Distress and inconvenience’) we did not see any evidence for us to say that she would have secured any employment or specific salary during this time.
31. We saw no evidence to show that the refusal of Ms A’s application led to loss of earnings. We found that UKVI’s decision to refuse the claim for loss of earnings was a reasonable one and we do not uphold this aspect of the complaint.
Distress and inconvenience
32. Ms A complains that the offer of £250 from UKVI is inadequate to rectify the acute distress and inconvenience she suffered. She says that the delay in processing her application and refusal to grant ILR caused her great anguish. She says that the subsequent 5 months waiting for ILR to be granted impacted her mental health greatly, causing her acute distress and damaging her career prospects.
33. UKVI says it sincerely apologises for the errors in processing the application and the inconvenience that caused. It says that the offer of £250 is the maximum allowed by guidance in regard to the errors which occurred, and the amount is appropriate.
34. We know that a decision on the application, in line with the service standard of six months, should have been given no later than 30 April 2019. The decision to refuse was dated 6 June 2019 and UKVI granted her ILR on 25 September 2019 – a total of five months delay outside of the advised standard.
35. We looked at UKVI’s guidance on financial payments in regard to consolatory payments for non-financial loss, which says:
‘Case by case basis
1.6.6 Each case must be considered on its own merits, both in respect of whether a payment should be made and the amount that should be offered. This is necessarily subjective but should reflect the degree of distress experienced by the customer. Not everyone will react to the same circumstances in the same way.
Considerations
1.6.7 When deciding claims for non-financial loss, the ex-gratia team will need to look at:
• how serious the error caused by maladministration was;
• how long the error has persisted;
• what is the impact of the error; and
• what is the duration of the impact on the customer.’
36. Our own Principles for Remedy say:
‘Factors to consider when deciding the level of financial compensation for inconvenience or distress should include:
· the impact on the individual – for example whether the events contributed to ill health, or led to prolonged or aggravated injustice or hardship’
37. We considered what Ms A had told us regarding the impact the decision and delay had on her. We do not doubt that this period of time caused her distress and anxiety, having built a life within the UK for over 10 years. She told us that UKVI’s decision was devastating to her and caused her acute distress, fearful of what it meant to her future plans and the threat of losing her house, partner and friends in the UK.
38. Whilst we could not say that UKVI’s actions directly led to loss of earnings, we can see that the loss of access to her right of employment resulted in a direct injustice to Ms A, leaving her unable to pursue employment for a period of five months.
39. We are not satisfied that UKVI’s offer of £250 is in line with its own guidance and in our view, falls short of our own Principles for Remedy. We are persuaded that UKVI’s wrongful refusal of her application for ILR caused her significant distress about what her future would hold over a period of five months. We found that UKVI had not done enough to put this right and so we uphold this aspect of the complaint.