The decision
12. Mr K says he is entitled to British citizenship and a ‘Right to Abode’ through the WS because his father is a British Citizen. He says the WS were wrong not to consider his father’s right to British citizenship, from birth as a UK and Colonies citizen, and rely on the fact his father also qualified for citizenship by descent. Mr K says he is also entitled to British citizenship and a ‘Right to Abode’ through his paternal grandfather who also obtained British citizenship.
13. The ‘WS: full eligibility details’ sets out the circumstances an individual may qualify for assistance under the WS. To qualify as a child of Windrush, the WS says: ‘a child of a Commonwealth citizen parent, where the child was born in the UK or arrived in the UK before the age of 18, and has been continuously resident in the UK since their birth or arrival, and the parent was settled before 1 January 1973 or has the Right of Abode (or met these criteria but is now a British Citizen).’
14. If an applicant can prove they first qualify for the WS under the above definition they can use the scheme to apply for confirmation of their immigration status, including applying for British Citizenship or a Right to Abode.
15. Our principles of good administration expect organisations to ‘get it right’. They should act according to their statutory powers and duties and any other rules governing the service they provide. They should follow their own policy and procedural guidance, whether published or internal.
16. Mr K came to the UK as a child but moved overseas for his schooling. He returned to the UK after he turned 18, on a student visa to attend university. He holds a British Overseas Passport which does not detail restrictions about his entry.
17. UKVI have said Mr K does not qualify for the products available under the WS due to his personal circumstances because he was not born in the UK or a continual resident before he turned 18. UKVI have said they accepted he had entered the UK as a child but as his education was overseas, he was not continually resident. UKVI, in a response to his MP, signposted Mr K on how else he could obtain an immigration status suitable to his circumstances.
18. We have reviewed the evidence and information provided to us by Mr K. We have also obtained the considerations of Mr K’s application and appeals. We have consulted the full eligibility details and the Windrush Scheme Casework Guidance. It appears the decision on Mr K’s case was reasonable and in line with the eligibility set down for accessing the WS. This is in accordance with our principle of ‘getting it right’. While Mr K’s father and grandfather have obtained British Citizenship, this does is not make his route to citizenship or settled status automatic through the WS. To be eligible to be a child of Windrush there is a two-step process. First, a parent who had settled status before 1973 and the child to be settled in the UK, either through birth or residing before their 18th birthday.
19. Mr K’s place of his birth and his residency before turning 18 appear to make him ineligible for accessing the WS. We have also seen the WS have provided signposting to assist Mr K obtain the Right to Abode he is seeking.
20. There is no indication the decision taken on Mr K’s case was made with maladministration.
Handling of application
21. Our principles of good administration expect organisations to be open and accountable when processing service user’s personal information. The principles also expect organisations to maintain accurate records. Organisations should also behave helpfully, deal with people promptly, within reasonable timescales and within any published time limits. They should tell people if things take longer than the public body has stated, or than people can reasonably expect them to take.
22. Mr K has complained about the length of time he had to wait for a decision to be made on his case. He also complains the decision letter was further delayed when it was sent to an old address despite him updating Windrush of his move.
23. Mr K submitted his application to the WS in November 2019. He was then contacted by the WS between March and April 2020 to provide further evidence to support his application. Mr K provided this promptly on each occasion. The UKVI records show they made a decision on Mr K’s case and sent a letter in July 2020. However, this decision was sent to an old address, despite Mr K updating them with his new address. This meant Mr K did not receive a decision on his case until the letter was returned as undeliverable, and further attempts were made by UKVI to send the decision out in January 2021.
24. There are indications the UKVI took an unreasonable amount of time between November 2019 and March 2020 before they started considering Mr K’s case. By not accurately recording the change in address, they not only sent personal information to the wrong address but caused further delay in Mr K receiving his decision.
25. We accept Mr K would have been frustrated by this delay, especially when he had taken steps to keep the UKVI updated with his new address. While this would not have changed the decision he received, it created longer period of uncertainty which was unnecessary. UKVI had apologised for the error in sending the decision to the wrong address but had not acknowledged the long time they took to make the decision, or the full impact these events had on Mr K.
26. We contacted UKVI setting out our concerns with this element of the complaint. They now accept there was an error updating the address which led to a delay in Mr K receiving his decision. They also accept there was a delay between Mr K applying to the WS and the application being reviewed. They have offered to issue Mr K with an apology and a consolatory payment of £450.
27. We have considered whether this offer appears reasonable. To do this we have considered our own Severity of Injustice scale. Mr K’s stress and frustration appears to fall in level two of our scale. This recognises circumstances where an apology on its own is not an adequate remedy. Typically, the injustice will arise from a relatively low impact failing, often resulting in a degree of distress, inconvenience or minor pain. Level two provides a payment bracket of between £100 - £450. UKVI’s offer falls within this bracket and so appears to be a reasonable remedy for the injustice identified.
28. We consider this resolves this part of Mr K’s complaint. We do not propose to take further action.