35. When looking at whether there has been maladministration in the service provided, we first look to see what should have happened in the circumstances. We then look at what did happen and consider whether that fell so short of what should have happened that it amounted to a failing. Where UKVI has already acknowledge maladministration, we will consider if it has offered a suitable remedy to put things right.
Applications in 2012
36. When Ms C first applied for permanent residency, UKVI asked her for evidence to support her application. That was not unreasonable. Under our Principles of Good Administration, we expect organisations to make evidence-based decisions, so asking Ms C for evidence meets those expectations.
37. In most cases, this is likely to be a relatively straight-forward process but, unfortunately, it was not as simple here. As Ms C explained, circumstances meant it was difficult for her to obtain what UKVI wanted to see.
38. We have some sympathy with Ms C. In asking for details of Mr C’s residency in the UK, UKVI was asking Ms C to produce information which related to her husband’s activities 20 years earlier. In our view, most people (and organisations) would have difficulty in producing evidence relating to a period that was so long ago. However, difficult does not mean impossible.
39. We realise this may sound harsh but one of UKVI’s responsibilities is to ensure that only people eligible to be in the UK are allowed to enter or remain in the country. Under our Principles of Good Administration – acting fairly and proportionately - we expect organisations to take measures that are proportionate to the objectives pursued. Asking Ms C to provide the necessary information to establish her eligibility for permanent residency was in line with that expectation.
40. It is also important to note that UKVI was not asking for documents from that period but simply for documents which related to it. As it explained when it wrote to Ms C in August 2014, current confirmation from a relevant source (such as an energy supplier) that Mr C had been living in the UK during the time in question may well have been enough.
41. We accept that attempts to obtain such information may have proved unsuccessful. We know that, under current data protection legislation, organisations should hold information for only as long as legally necessary. However, that does not mean Ms C did not have to try to obtain the information. At the very least, her unsuccessful attempts would have shown UKVI she could not comply with its request. This would have been different to saying she had found it difficult to do so.
42. We cannot say this would or should have persuaded UKVI to accept the application. However, under our Principles of Good Administration – acting fairly and proportionately, we would have expected UKVI to give more consideration to Ms C’s circumstances and decide whether a rigid application of UKVI’s usual practice would have been unfair in this instance. As it was, despite what Ms C had said about her difficulty in finding this information, UKVI had no good reason to believe she could not do what it had asked her to do.
43. The records show that, although Ms C did not provide UKVI with any further evidence, it eventually granted the application, albeit following a successful Tribunal appeal. We can see how this may have led Ms C to believe that UKVI should have both accepted and granted the application in the first place. However, we cannot say she is correct about this.
44. The first thing to say here is that the Tribunal decision in 2015 is not evidence that UKVI got things wrong in 2012. This is because the Tribunal was looking only at the decision UKVI made in 2014. It was not looking at any of the decisions UKVI had made, or actions it had taken, previously.
45. In other words, the Tribunal was looking at whether UKVI had been right about the couple’s relationship, not at whether UKVI had been right to reject the supporting evidence. For that reason, we cannot use the Tribunal judgment in 2015 as evidence of maladministration in UKVI’s decision making three years earlier.
46. What we have looked at is why, in 2014, UKVI appeared to accept that Ms C had made a valid application when it had previously disputed this.
47. As we have seen, one of the reasons UKVI gave for rejecting Ms C’s second application was because it did not accept her husband’s GP letter as evidence of his permanent incapacity. We cannot say this was inherently unreasonable. However, the records show that, two years later, UKVI changed its view.
48. We have seen a note dated 24 November 2014 which shows there was a ‘decision made stating that a GP letter had now provided confirming permanent incapacity’. The records suggest this relates to the letter Ms C gave UKVI in June 2012. There is nothing in the records to show why UKVI had now decided the GP letter was enough when it had repeatedly said it was not. Nor is it clear why UKVI took over two years to come to this conclusion.
49. Taken at face value, this would suggest UKVI should have accepted the GP letter from the start. However, this does not mean it would or should have decided the application was valid.
50. The records show that, as well as UKVI having concerns about Mr C’s medical condition, it also had concerns about his residency in the UK prior to ceasing work. We have seen nothing to suggest UKVI resolved those concerns. The records show that, also on 24 November 2014, UKVI ‘still had no evidence of [Mr C] residing in the UK prior to incapacity’. This means that, even if UKVI had accepted the GP letter, as it later did, it would still likely have rejected the applications.
51. When we first considered this point, it was not clear why, despite still having reservations about Mr C’s residency, UKVI did not reject the third application on the same basis. So, as part of our investigation, we asked UKVI about this. It told us it had not changed its position at that point and was still not satisfied by the evidence Ms C had produced. However, the Tribunal’s decision on the marriage question had left UKVI with little alternative but to grant the application. This suggests to us that, had it not been for UKVI’s decision to focus its concerns on the genuineness of the relationship, it would have continued to reject the application as invalid.
52. We are still unclear why UKVI decided to focus on the relationship when it did not appear to have been an issue previously. However, we have not looked closely at this. This is because, regardless of why UKVI decided to change focus, its decision to do so worked to Ms C’s advantage.
53. If, as it appears it should have done, UKVI had continued to reject the application as invalid, it would not then have gone on to decide on the application itself. In that case, Ms C would not have been able to appeal to a Tribunal as there would have been no formal decision for the Tribunal to consider.
54. We accept Ms C could have taken another form of legal action, most notably, by requesting a judicial review of UKVI’s actions (and we have seen evidence that Ms C considered this course of action). We cannot say this would have been successful.
55. Ms C could also have complained to us about what happened. If we had considered her complaint at that point (and we have no reason to believe we would not have done) it seems likely we would have come to the same conclusion as the one we have arrived at now. Namely, that UKVI’s decision to reject the application had been taken in a reasonable manner.
56. In other words, if UKVI had rejected the application, Ms C would still have needed to provide the evidence UKVI had asked her for. By making a decision on the application, albeit an incorrect one, UKVI removed that need. This meant that UKVI’s change of focus, whether by error or design, left Ms C in a better position than she would have been otherwise.
57. In summary, we have found no evidence of maladministration in UKVI’s handling of Ms C' s 2012 applications.
Reimbursement following UKVI’s refusal of the 2014 application
58. UKVI has accepted it made a mistake by not granting the 2014 application earlier than it did (that is, following the marriage visit in September 2014). We have no reason to dispute what UKVI has said about this. For that reason, we have looked only at the impact this error had on Ms C.
59. Ms C said there had been a financial impact and asked UKVI to compensate her for this. It may be helpful here to break down each of Ms C’s claimed costs and UKVI’s responses to them.
Correspondence costs
60. Ms C asked UKVI to compensate her for the costs she had incurred in corresponding with it. She estimated these costs at £50.10. UKVI agreed to pay £16.75. It said it could see from the receipts Ms C had presented that some of the claimed costs related to correspondence before UKVI made its maladministrative decision on 24 November 2014. It said the rest of the postal costs were not a result of UKVI’s maladministration.
61. We do not agree with UKVI on this point. Although we agree that UKVI should only be responsible for costs that flow as a result of its error, we disagree with UKVI on the date this error occurred. It is accepted by all that UKVI should have been satisfied following the home visit in September 2014 that the marriage was genuine. UKVI’s mistake was its failure to be satisfied at this point. This means, to put matters right, UKVI should have reimbursed Ms C for any unnecessary costs she had incurred from the date of its visit, not the date of its decision. So, we recommend that UKVI do so now.
Appeal hearing fees
62. Ms C asked UKVI to refund the fee she paid to have the appeal heard. UKVI agreed to this.
63. We find that UKVI has acted in line with our Principles of Remedy. If UKVI had not made a maladministrative decision, Ms C would not have needed to pay for an appeal. To put her back in the same position, UKVI needed to reimburse her for that fee which it has offered to do. We would not ask UKVI to do more.
Other legal fees
64. Ms C asked UKVI to reimburse her for her legal fees. This included the cost of engaging a barrister to represent her at a costs hearing following her appeal. UKVI said it could consider this request. However, to do so, it would need a breakdown of the fees. This was because it would only consider fees for work Ms C could not reasonably have undertaken herself and she had not yet provided evidence that the work undertaken, and charged for, met this criterion. Even then, UKVI would only reimburse her for money she had actually paid. It would not pay this money in advance (Ms C had presented no evidence she had paid the legal fees). Following this consideration, it offered Ms C £600 for counsel fees for attending the appeal hearing. UKVI added it would not reimburse Ms C for any fees relating to the costs hearing. It explained this was a matter between her and her legal team and was not something which flowed from UKVI’s error.
65. We find no evidence of maladministration here. Although we expect organisations to provide appropriate financial remedies where appropriate, we also expect them to spend public money wisely. Asking for evidence of how the money had been spent, and refusing to pay this remedy in advance, meets our expectations.
66. Whilst we can understand why Ms C, or her representatives, may have decided to recover money through a legal route, there had been nothing to prevent them from simply asking UKVI to reimburse her for the money she had spent so far as a result of its error. We would have expected UKVI to have considered such a request in line with our Principles of Remedy. If Ms C had been unhappy with that consideration, she could have asked her MP to bring her concerns to us. There would have been no charge for either UKVI’s consideration or our service. For that reason, we agree with UKVI about the cost hearing. We find no evidence of maladministration in its consideration of this request.
Student fees
67. Ms C asked UKVI to reimburse her for fees she had paid to enrol on a university course. She said she had lost this money because she could not provide the university with evidence of her valid immigration status. UKVI refused to reimburse Ms C for this cost. It said it had been Ms C’s choice to enrol on a course and pay the fees when she was not in a position to show the university she was eligible to study.
68. We find no evidence of maladministration here. There was no legal compulsion for Ms C to apply to study. As UKVI has pointed out, by doing so when she did, and in the circumstances she was in, she applied at her own risk. We accept that the University’s decision may have been different if her immigration status had been different but that would have been true if Ms C had waited until her status had been formally settled. We cannot link Ms C’s decision to apply to study to UKVI’s error.
Travel costs
69. Ms C asked UKVI to reimburse her for the cost of travelling to the marriage interview. She also asked UKVI to reimburse her for a hotel stay related to this request. UKVI agreed to pay these costs.
70. We find no evidence of maladministration here. It is not disputed that the marriage interview should not have been necessary. As a result, travel to that interview, and the hotel stay associated with it, should also not have been necessary. We should add that our, and UKVI’s, view of this aspect of the complaint reinforces our position that it should reconsider reimbursement of Ms C’s postal charges.
71. Ms C asked UKVI to reimburse her for the costs of traveling from her home to a UKVI reporting centre on a fortnightly basis. She also asked UKVI to reimburse her for the cost of attending several counselling sessions. UKVI agreed to reimburse these costs. However, it did not offer the full amount Ms C had asked for (£220). It said, because Ms C had been unable to provide receipts for these journeys, it would base its offer on the cheapest form of transport (a capped oyster card). As a result, it agreed to pay Ms C a total of £198.
72. We find no evidence of maladministration here. There seems no dispute that, if UKVI had not made a maladministrative decision, Ms C would not have needed to attend a reporting centre. It was therefore in line with our Principles of Remedy that UKVI reimburse her for this money. In usual circumstances, we would have expected UKVI to ask for evidence that Ms C had paid this money. However, it used its discretion in her favour by applying an appropriate standard of evidence of costs to ensure she was not disadvantaged. This was a proportionate response to her request. UKVI has applied a similar discretionary approach to the counselling fees so we find no fault here.
Loss of earnings
73. Ms C asked UKVI to reimburse her for the loss of earnings its error caused. She said UKVI should have granted her application in 2012 and its failure to do so meant she had been unable to work for over three years. UKVI refused this request. It said there was no evidence she would have obtained work even if it had granted the application earlier. It added that a large portion of this period was the result of Ms C’s inability to submit the relevant evidence.
74. We find no evidence of maladministration here. We should say that things may have been different if Ms C had asked UKVI to consider her loss of opportunity to earn which is a slightly separate issue. However, although this is something we address elsewhere in the report, for this aspect of the complaint we can look only at UKVI’s response to her reimbursement request. In doing so, we agree with UKVI that there was no guarantee Ms C would have found work in the relevant period. For that reason, we cannot say she had lost earnings.
Other claimed impacts of UKVI’s error
75. For the reasons we have explained, we found no evidence of maladministration before September 2014. We have therefore only considered matters from this date onwards.
76. The evidence we have seen so far suggests UKVI offered to pay Ms C £200 in recognition of the distress UKVI’s error had caused her. We have looked closely at whether this was a reasonable remedy to the injustice she had suffered.
Emotional and psychological suffering
77. Ms C said UKVI’s challenge to her marital status affected her mental health and caused her to have panic attacks for which she received counselling. We have no reason to dispute what Ms C has said here. However, we cannot link this solely to UKVI’s error.
78. It is clear from the records that UKVI had doubts about the marriage. We cannot comment on whether it had good reason for these doubts and, as we have said, we do not know why they had not surfaced before. But, given the marriage was a key component of Ms C’s eligibility for permanent residency, UKVI had a responsibility to investigate the matter further. For that reason, we cannot say UKVI was wrong to arrange the home visit, although we recognise this would have been both shocking and upsetting for Ms C and her husband.
79. This visit should have been enough to satisfy UKVI the marriage was genuine. However, it did not. Instead, UKVI arranged to interview the couple again, this time in a strange environment several miles from their home. Further, UKVI forced the couple into a lengthy legal process which, by UKVI’s own admission, should not have been necessary. It is easy to see why Ms C would have been so upset at having the credibility of her relationship challenged in this way. This was an injustice to her.
80. We have looked carefully at whether UKVI’s offer of £200 is a sufficient remedy in the circumstances. In doing so, we took account of our Severity of Injustice scale. Ms C has explained she was so upset by events she needed counselling to help her come to terms with what had happened. We have no reason to dispute what she has said about this. Whilst we cannot link this solely to UKVI casting doubts on her marriage, we recognise this was likely to have been a significant factor. Having said this, those doubts have now been removed.
81. Level three of our scale includes cases where the impact on the person affected was significant but was only sustained for a short period of time. In our view, Ms C’s complaint falls into this category. We will make a recommendation to address this.
Loss of opportunity to earn
82. We have addressed already Ms C’s contention that she lost earnings because of these events. As we have explained, we cannot agree with her about that. However, we do accept that, if UKVI had granted the application sooner, Ms C would have been able to look for work sooner. We cannot say her efforts would have been successful, but the loss of opportunity was an injustice in itself.
83. Level two of our scale includes cases where what has gone wrong has had a relatively low impact on the person affected. In our view, Ms C’s complaint falls into this category. We will make a recommendation to address this.
Fear of deportation
84. Ms C said that, following UKVI’s decision to refuse her application, she constantly feared that UKVI would forcibly remove her from the UK. We do not dispute what Ms C had said about how she felt. However, we cannot link that to UKVI’s maladministration. We accept that the refusal decision itself mentioned the prospect of forcible removal. However, the same letter also mentioned Ms C’s right of appeal against the decision, a right she had exercised. It should have been clear from this that, although there was a possibility UKVI would remove Ms C from the country, this would only happen if she lost her appeal. As such, the prospect of removal, although real, was not immediate and was dependent on circumstances. We also note that between 2006 and 2012, Ms C appeared to have had no lawful right to be in the UK. The risk of her removal at that point would likely have been greater than the risk following her application for permanent residency.
Restriction on travel
85. Ms C has said that, following UKVI’s decision, she was unable to travel outside the UK and missed significant life events as a result. When we asked UKVI about this, it explained there were no barriers to Ms C leaving the UK during this period. However, she would likely have needed to apply for permission should she wish to re-enter the country. It is important to say here that there are several categories in which a person can apply to enter or remain in the UK, not just applications for permanent residency. These categories include people wishing to enter or remain as visitors or students, both of which Ms C had used before. We do not know whether Ms C would have been able to successfully apply in any of the available categories. However, the fact these categories exist mean we cannot say Ms C was unable to leave and return to the UK simply because UKVI had refused her application for permanent residency.