3. Dr O complains that UKVI:
• refused his request to refund money he had paid for three applications for permission to settle in the UK; and • refused his request to refund money he had paid for Immigration Health Surcharges in relation to those applications.
4. He says that UKVI’s actions have destroyed his life.
5. As a result of this complaint, Dr O would like UKVI to refund him his three application fees. He would also like financial compensation.
6. In 2016, Dr O applied settle in the UK (known as applying for Indefinite Leave to Remain or ILR). UKVI rejected the application and instead granted him permission to stay in the country) known as granting limited leave to remain or LTR for 30 months. Dr O paid a fee for his application, together with an Immigration Health Surcharge (IHS).
7. In 2019, Dr O applied again for ILR. UKVI again rejected the application and instead granted him LTR for a further 30 months.
8. In June 2022, Dr O made, and paid for, a third application for ILR. As before, UKVI rejected the application. It said it would grant Dr O LTR for a further 30 months provided he paid the IHS. Dr O did not pay the IHS, so UKVI rejected his application outright.
9. Dr O complained to UKVI about what had happened. He said the grant of LTR rather than ILR had placed unfair restrictions of his ability to gain employment which, in turn, impacted on his life. He said that, in his case, the IHS was worthless in that it covered services he would not use. He said he had many friends who were medical professionals who could provide him with medical treatment should he need it. Failing that, he could seek private medical care. He asked UKVI to grant him ILR and to refund the money he had paid previously for his applications and the IHS.
10. UKVI did not uphold the complaint. It said the IHS payment was an integral part of the LTR application process and was not dependent on an application being successful. It said it had processed his applications correctly. Therefore, Dr O was not entitled to a refund of the money he had paid.
11. Dr O escalated his concerns to the Independent Examiner of Complaint (IEC - the last stage of UKVI’s complaint process) but the IEC did not uphold his complaint. It said it could not comment on whether UKVI should have granted Dr K’s ILR application (as it did not have the authority to comment on immigration decisions, or UKVI’s policies and legislation concerning such decisions). However, it said payment of application fee, and the IHS, were legal requirement and related to the processing of the application. They were not linked to the outcome of the application. For that reason, it said UKVI had been correct to reject Dr K’s application for a refund.
Varying applications
12. UKVI can vary applications. For routes where this can be done, on application forms, the following condition is stated:
“If you do not meet the requirements for settlement, but appear to meet the requirements to be granted further temporary permission to stay, your settlement application will not be decided. Instead the Home Office will vary your application for settlement so that it becomes an application for temporary permission to stay. You will not be charged an application fee for the application for permission to stay.
You will be contacted and told if this variation process applies to you. Before your application for temporary permission to stay is decided, you must, if requested, pay the immigration health charge for that application, or obtain a fee waiver for the immigration health charge where a fee waiver is available. You will be told how to do this when the Home Office contacts you about the variation. If you do not pay any required immigration health charge, the application for permission to stay will be rejected as invalid. If that application is rejected as invalid the fee you paid for your settlement application will not be refunded.”
13. The applicant signs a declaration to state they have understood and agree to the above conditions.
Administrative background to the complaint
16. To help put this complaint, and our decision, into context, it may help if we explain more about applying for permission to remain in the UK, including the fees related to that application.
17. Most non-UK residents who wish to enter or remain in the country must formally apply to UKVI for permission to do so. There is a processing fee for making such an application which is usually non-refundable. The fee amount is dependent on the type of permission the person has applied for.
18. Limited leave to remain is a general term that means a person from outside the UK has permission to stay in the UK for a fixed period (which can sometimes be extended upon application). Depending on the person’s reasons for wanting to be in the UK, there may be restrictions placed on the activities they are allowed to do while in the country.
19. Indefinite leave to remain (also called ‘settlement’) gives the successful applicant the right to live, work and study in the UK permanently. It also allows them to apply for benefits (if eligible) and apply for British citizenship.
20. Applicants applying for ILR must meet certain specific conditions for UKVI to grant it (one of which is that they must have lived in the UK lawfully for a at least ten years). If these conditions are not met, UKVI cannot approve the application. However, in these circumstances, rather than rejecting the application outright, UKVI will look to see whether the application qualifies for permission to remain in the UK on another basis. This is known as a variation of leave.
21. If UKVI decide the person meets the eligibility criteria for another form of leave, they will grant this providing that the applicant has paid the immigration health surcharge. If UKVI refuse the application altogether, and the person does not qualify for leave on another basis, UKVI will usually refund the IHS.
22. We should explain that, like the IEC, we do not have the authority to make immigration decisions. Nor can we comment on the political or other background which provides context to those decisions. We can look only at whether UKVI acted reasonably when discharging its administrative duties.
What Dr O told us
23. Dr O complained that UKVI twice kept his application fee for ILR (in 2016 and 2019) when it only granted him LTR. This happened despite there being a difference in costs between the two application fees (an application for ILR costs more than an application for LTR). He says that UKVI should at least refund the difference between the two.
24. He also told us he rejects, in principle, the grant of LTR (rather than ILR) and the payment of an IHS. He described the LTR as ‘worthless & useless visa well tailored and legislated by greedy ones profiteering and making money (savage capitalism)’.
25. He said the LTR status restricts his ability to work in the UK which, in turns, restricts his ability to access appropriate housing. It also restricts his ability to access public funds.
26. He described the IHS as a ‘not worthy and cheating service’ when he cannot access GP and other medical services anyway (he said many GP surgeries were telling patients not to book appointments as they ‘don’t have doctors to cover the high demands for an appointment.)
27. In dealing with Dr O’s complaint, the IEC explained that when an application is made for ILR, the applicant declares that they understand and agree to the varying of their application, if needed. This gives UKVI permission to vary an ILR application and treat it as an LTR application, if it does not qualify for the ILR route.
28. The IEC further explained that varying of an application essentially changes it from an ILR to LTR application, but in order to allow UKVI to process the varied LTR application, the applicant must pay the IHS fee. If it is not paid, the application will be rejected as invalid, and the applicant will not be entitled to a refund of the application fee. It stated that even if the application is successfully varied from ILR to LTR, UKVI’s guidance does not allow a refund of the difference in fees.
29. It noted that when the IEC refused Dr O’s application for ILR on 1 March 2023, they offered to grant LTR upon payment of the IHS. When he failed to pay the IHS, UKVI rejected his application and retained the fee in accordance with established procedures.
30. We have reviewed the Home Office’s guidance the IEC referred to ‘Immigration and Nationality Refunds’.
31. Page 11 of this guidance makes clear that there will be no refund of the difference between ILR and LTR when an application is varied by UKVI. It also states that where an application is considered and refused, the application fee paid will not be refunded.
32. Under Our Principles of God Administration – getting it right – we expect organisations to act according to their statutory powers and duties and any other rules governing the service they provide. We also expect them to follow their own policy and procedural guidance, whether published or internal.
33. The evidence we have seen shows that UKVI acted in line with its responsibilities considering Dr O for LTR when rejecting his ILR application. It also acted in line with its responsibilities when telling him he needed to pay the IHS and rejecting his request to refund his previous payments. UKVI has acted in line with its guidance in not refunding Dr O the fee for his applications. There is therefore no indication of a failing in relation to this complaint.
34. We recognise Dr O’s comments on what he views as an inherent unfairness in the LTR and IHS systems but can say only we have nothing to suggest UKVI have treated him differently to anyone else in his situation. If he believes the systems themselves, or the legislation that underpins them are unfair, we suggest that he seeks independent legal advice about how he may be able to challenge them in court. Alternatively, he may wish to seek the help of an MP to raise his concerns in Parliament. We cannot help him with either of these options.
35. We recognise that this decision is unlikely to be the one Dr O was looking for when he approached us. We hope we have explained clearly the reasons for our decision.
1. We have carefully considered Dr O’s complaint about UK Visas and Immigration (UKVI). We have seen no indication that UKVI did anything wrong in relation to Dr O’s complaints.
2. We appreciate that our decision will be disappointing for Dr O but hope our impartial consideration of his concerns will be of some use to him.