UK Visas and Immigration

2. Mr M complains about information provided by UKVI when he applied to become a naturalised UK citizen. He has said he told UKVI about his two periods of illegal employment and believes UKVI should have informed him not to reapply for citizenship until 2023.

3. As such, Mr M says the information provided by UKVI led him to apply early which resulted in the application being unsuccessful. He says this was a waste of time and money.

4. He would like to be reimbursed for the application fees he incurred.

Administrative background

5. Part of UKVI’s role is to decide on applications for permission to visit and/or live in the UK (commonly known as visa applications). This includes applications for permission to live in the country as a spouse or partner of someone who is already entitled to live here.

6. Someone applying for permission to live in the UK as the partner of a UK citizen needs to meet certain eligibility criteria. These include being able to show they can support themselves financially. This means they must show that they, and their partner, have a combined set minimum annual income.

7. To qualify for naturalisation, the applicant must have been resident in the UK for a fixed length of time (known as the qualifying period). For people applying based on marriage to a British citizen this period is three years. For most others the qualifying period is five years.

Complaint Background

8. According to UKVI’s records, Mr M first entered the UK in January 2005. Although he has lived in the country since that time, UKVI records show he has not always had permission to do so. In particular, he had no permission to be in the country between late November 2007 and late February 2008, late October 2008 and early July 2009, and 23 December 2011 and 9 May 2013.

9. In 2016, Mr M applied to become a naturalised UK citizen. One of the conditions of a successful application is that the person needs to be of ‘good character’ which, in part, UKVI defines to mean they have not broken any immigration laws within a set period (in this case ten years) before making their application.

10. In November 2016, UKVI wrote to Mr M. It told him about its ‘good character’ consideration and sent him a questionnaire asking him to explain how he had supported himself during the gaps in his immigration history.

11. In December 2016, UKVI refused the application. It said that one of the conditions for naturalisation was that the applicant must not have been in breach of the immigration laws at any time during their ‘qualifying period’ of residence. It said that in Mr M’s case, the qualifying period had started on 24 September 2011 (five years before the date of his application). UKVI said Mr M had been in breach of the immigration laws between 23 December 2011 and 9 May 2013. It told Mr M that although he could make a fresh application at any time, given the reason for refusal any application made before 9 May 2023 was unlikely to be successful.

12. UKVI’s records show that, around this time, Mr M returned the questionnaire uncompleted together with a covering letter relating to the apparent ‘breaches’. He also sent UKVI copies of wage slips which showed he had been working between August 2007 and February 2008. He also contacted his MP about what had happened, and they later contacted UKVI on Mr M’s behalf.

13. UKVI noted it had made an error in its original refusal. It said Mr M had been applying based on marriage which meant the qualifying period should have begun in September 2013, not 2011 as it had suggested. As Mr M had been living in the UK legally since May 2013, he met the residency criteria. As such, UKVI had been wrong to refuse his application on this basis. However, UKVI also noted that Mr M’s wage slips showed he had been working in the UK at a time when he did not have permission to do so (between November 2007 and February 2008). This was a separate breach of the Immigration laws and meant that, in UKVI’s view, Mr M failed to meet the ‘good character’ test. UKVI responded to the MP to explain what had happened and said it would be sending Mr M a fresh refusal notice.

14. In December 2016, UKVI sent Mr M the new refusal notice. It apologised for the error in its original decision but explained why he did not meet the good character test. UKVI explained that Mr M could make a fresh application at any time but added that any application made before 28 February 2018 was unlikely to be successful.

15. In December 2019, Mr M applied again. In support of his application he provided a letter from his employer which showed he had been working continuously for them since late October 2010.

16. In February 2020, UKVI refused the application based on its ‘good character’ criteria. UKVI said that between December 2011 and May 2013 Mr M had been in the UK without permission. This was a breach of the immigration laws and meant he did not meet the good character requirement. UKVI also referred to Mr M’s employment. It explained it would normally refuse an application if, within the previous 10 years, the person had worked in the country without permission. It said the employer letter showed that Mr M had worked between December 2011 and May 2013, and this was also a reflection on his character.

17. UKVI noted that in its previous refusal notice, it had suggested Mr M may be able to reapply successfully after November 2018. However, it said at that time it had been unaware of his further period of employment. UKVI again said Mr M could make a fresh application at any point but, if he did so before 9 May 2023, he was unlikely to be successful.

18. Mr M complained to UKVI about what had happened. It said that in 2016 it had misadvised him about when he could apply. He said he had told UKVI right from the start about his second period of ‘illegal’ employment, so it should have advised him all along that he should not apply again until 2023. As it was, UKVI had led him to believe he could apply early when such an application would always have been unsuccessful.

21. Firstly, our investigation is not looking at UKVI’s application decision(s). We are simply looking at whether UKVI ‘misled’ Mr M into making his application in December 2019.

22. The evidence we have seen so far shows that in 2020 UKVI refused Mr M’s application because it did not consider him to have been of good character during his time in the UK. This was because of apparent breaches of immigration law. There were two elements to this decision, namely:

a. Mr M had lived illegally in the UK between December 2011 and May 2013 b. Mr M had worked illegally in the UK during the same period

23. To look at what, if anything, went wrong, it is important to look at those two elements separately.

Illegal residence

24. When UKVI first refused Mr M’s application, it said it was because he had lived in the UK without permission during the relevant qualifying period for residency. It later accepted this had been an error because it had considered the wrong qualifying period for that issue. However, as its 2020 decision shows UKVI should also have considered the impact this apparent breach had on its ‘good character’ consideration.

25. UKVI decided that as this breach had occurred within 10 years of the application Mr M did not meet the good character test. It makes sense that if UKVI had applied the same test in 2016, as it should have done, it would likely have reached the same conclusion. This meant that regardless of whether Mr M had worked illegally (and whether UKVI had known about this or not) it would still likely have refused the application.

26. In those circumstances, UKVI should also have advised Mr M not to apply again until May 2023. Instead, it suggested he may be able to apply successfully from November 2018, even though any application made at that time, if made on the same basis, was always likely to be refused. This was an error.

27. Under our Principles of Good Administration – being customer focused - we expect organisations to ensure customers are clear about their entitlements and about what they can and cannot expect. UKVI’s failure to be clear with Mr M about when he should best make a fresh application is a failure to meet our expectations and amounts to maladministration.

Illegal working

28. There appears to be no dispute that Mr M was, on occasion, working without permission while in the UK. There also appears to be no dispute that this action reasonably caused UKVI to question his character. We should make clear here that we are not questioning Mr M’s character or taking a view on his actions or intentions. We are simply reflecting that UKVI had good reason to consider this as part of its decision making process. The only dispute is whether, in 2016, UKVI knew (or should have known) the full extent of this apparent breach of the immigration laws, and what it should have told Mr M about this.

29. According to Mr M, he told UKVI in 2016 the full extent of his employment history. Although UKVI do not fully accept this, it has told us that when Mr M challenged its decision in 2016 (via his MP), he was quoted as saying, “I've always worked and paid my taxes and contributed to the local community”. UKVI has stated this should have perhaps caused it to probe the issue more deeply. UKVI has also accepted it should have probed more fully Mr M’s failure to complete the questionnaire it sent him in November 2016. It accepts that, had it done so, it seems likely Mr M would have told it about his employment between December 2011 and May 2013.

30. Under our Principles of Good Administration – getting it right – we expect organisations to take account of all relevant considerations when making decisions. Given the significance of Mr M’s employment history to his application, this was clearly a relevant consideration. UKVI’s failure to follow this up was an error and amounts to maladministration.

31. We should add that, even if UKVI had not made this error, it would likely have made no difference to its decision to refuse Mr M’s application. The records show that UKVI refused the application because, in its view, Mr M had been working when he did not have permission to do so, and this called his character into question. Evidence of a further period of unauthorised employment would likely have confirmed UKVI’s decision rather than changed it.

32. What would likely have changed however is the advice UKVI gave Mr M about when it was best for him to reapply. UKVI suggested he apply after November 2018, that is ten years after the last recorded date of unauthorised employment. It seems likely that, if UKVI had known about the later period, it would have advised Mr M not to apply until 10 years after that period ended, in this case May 2023.

Impact

33. We satisfied from the evidence we have seen so far that if UKVI had acted correctly in 2016, it would likely have advised Mr M not to reapply until at least May 2023. However, in error, it led him to believe he could apply much earlier. Mr M has told us he would not have wasted his money on making a new application if he believed it was likely to fail. Instead, if he had known the true position, he would have waited until UKVI’s suggested timescale had elapsed. We have no reason to dispute what he has said.

34. We accept that Mr M was under no obligation to make a new application. We also accept that, at no point, did UKVI guarantee that such an application would be successful, regardless of when it was made. However, it is our view that Mr M would not have made his application in 2019 had UKVI informed him in 2016 that he could next hope to successfully apply for naturalisation in the UK in 2023. This is an impact UKVI has yet to remedy and therefore, we have made recommendations in respect to this.

1. Based on the evidence we have seen our decision is to uphold Mr M’s complaint. This is because we have seen evidence which suggests UK Visas and Immigration (UKVI) unfairly led Mr M to believe he may be able to successfully make an application for naturalisation when such an application stood little chance of success. We have also seen evidence that Mr M suffered a financial injustice as a result, and we recommend UKVI put that right for him.

35. In considering our recommendations, we have referred to our ‘Principles for Remedy’. These state that where poor service or maladministration has led to injustice or hardship, the organisation responsible should take steps to put things right.

36. Our principles state that public organisations should put things right and, if possible, return the person affected to the position they would have been in if the poor service had not occurred.

37. Following this review, our decision is UKVI should pay Mr M the full cost of his application fee from his unsuccessful application in December 2019. This is because we believe Mr M would not have made this application if UKVI had not led him to believe an application made at that time may be successful when this was not the case. We would ask this to be completed within four weeks of the date on this report.