UK Visas and Immigration (UKVI)

3. Mr A complains about the March 2023 UKVI decision to refuse his application for residency in the UK under the EU Settlement Scheme.

4. He says he should have been granted settled status under his Zambrano primary carer application and this was refused and incorrectly referred to the Independent Examiner of Complaints (IEC) by the UKVI without recourse to administrative review or appeal.

5. Mr A has told us he has been unable to adopt children as a result of not having settled status, and this has had an emotional toll on him and on the mental health of the family.

6. As a result of his complaint, Mr A would like to be granted British Citizenship.

7. UKVI is a part of the Home Office responsible for making decisions about who has the right to visit or stay in the country.

8. On 27 Nov 2022 Mr A applied for EU Settlement Scheme as a 'person with a Zambrano right to reside'. UKVI refused the application on 9 March 2023. In the application notice it said Mr A had 28 days to apply for an administrative review if he thought the decision maker had made an error or did not follow published guidance, or if he had new information or evidence in support of the application.

9. In the notice it also said that where the date of application under the EU Settlement Scheme was after 11pm on 31 January 2020 (which was the case here) the decision could also be appealed through the First- tier Tribunal under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020.

10. It said if Mr A was in the UK on the date of the decision then he had 14 calendar days after the date on the notice to appeal, and if he was outside of the UK he had 28 to appeal. It provided a website address to obtain information on how to appeal, the process, and fees payable, along with information on how to obtain help from a solicitor or immigration adviser or advocate, and on how to represent himself if he wished to do so. UKVI also said if Mr A had any questions or would like to discuss the letter, then he could call the EU Settlement Resolution Centre, providing its telephone number and opening hours.

11. Mr A requested a review of the decision on 13 April 2023. This was outside of the timeframe for requesting an administrative review, and outside of the timeframe for appeal. We have seen no evidence that he attempted to appeal the decision with the tribunal.

12. UKVI then referred Mr A in error to the Independent Examiner of Complaints (IEC), a new independent complaint investigation service for people who are unhappy with the Home Office’s final response to a complaint. The IEC told him several months later that it was unable to look into his complaint as it concerned a decision that carried review and appeal rights.

13. Mr A then complained to UKVI on 8 April 2024 about this and again requested his application be granted.

14. UKVI responded and said the application (along with a similar application refused in a decision letter dated 24 October 2022) offered both administrative review and appeal options, neither of which were exercised within the provided timeframe. It apologised for signposting him to IEC in error, and referred him to our services, if he still wished to pursue his complaint.

16. Our powers are set in legislation under the Parliamentary Commissioner Act 1967 (the Act). There are restrictions in our powers under the Act, and one of those restrictions is that we cannot investigate a complaint if there is or was a legal remedy that the aggrieved could pursue or could have pursued, unless it is (or was) not reasonable for them to do so.

17. In our role as an independent complaint investigator we have no legal remit to recommend that UKVI issue any category of leave to remain or visa to visit the UK, as this is something that can only be agreed by the Home Office or by the courts.

18. We can see Mr A had a clear legally appealable route in which he could have challenged the UKVI decision and achieve the outcomes he seeks, and he was provided with comprehensive details in the decision notice on how to do so.

19. As Mr A had a legally appealable route available to him, and we are also unable to achieve the outcomes he seeks, we have decided not to take any further action on his complaint.

20. We are pleased to see UKVI apologised for incorrectly signposting Mr A to the IEC, and we understand this would have been frustrating for him, however, we can see no indication that it would have altered the decision making on his complaint.

21. In order to take the matter forward Mr A would need to seek independent legal advice.

22. We recognise this has been a difficult time for Mr A. He has told us of his desire to adopt children into his family, something he tells us he cannot do while his long-term status in the UK remains unsettled. We wish him well in his future endeavours.

23. We realise our decision is unlikely to give Mr A the outcome he was seeking when he approached us, but we hope we have made clear our reasons for that decision and thank him for bringing his concerns to our attention.

1. We have carefully considered A’s complaint about the UK Visas and Immigration (UKVI).

2. We have decided not to take any further action on his complaint as he had a legally appealable route available to him to challenge the decision he has complained to us about. We will explain the reasons for our decision in further detail below.