19. It may be helpful to explain more about UKVI’s role to put this complaint and our decision into context and explain how Mr A found himself in the position that he did. All parties involved in this case agree with the following summary of facts.
20. UKVI is the government department responsible for managing the UK’s immigration system. Its primary functions include processing visa applications for individuals wishing to live in the UK.
21. Following the UK’s decision to leave the EU, to continue living, working and accessing services, from 30 June 2021 eligible EU and European Economic Area (EEA) citizens could apply for settled status under the EUSS under Appendix EU to the Immigration Rules. The EUSS does not set out a timescale for consideration of an application, but at the time of the events of this complaint UKVI’s website indicates these applications were taking 5 working days to be considered.
22. Rule EU11 of the Appendix EU explains the qualifying time periods to meet the eligibility requirements for Indefinite Leave to Remain (ILR), which results in settled status. Applicants needed to show they had completed a continued qualifying period of five years. Rule EU14 says that the applicant shall meet the eligibility requirements for Limited Leave to Remain (LLTR) where UKVI is satisfied the applicant is not eligible for ILR under EU11 solely because they have completed a continuous qualifying period of less than five years. This means someone will receive pre-settled status, meaning they have a set period of residency.
23. Rule EU6 explains that a valid application which does not meet the requirements of ILR or LLTR should be refused.
24. Mr A could evidence residency in the UK between July 2013 and June 2021, but not the full five-year period. There were gaps in his residency between November 2017 and January 2019, and January 2020 and August 2020. UKVI refused the application for settled status in December 2022 but explained he had been given pre-settled status.
25. However, UKVI later recognised that it had made a mistake in inputting the decision on its system, as the caseworker selected the option to refuse, rather than the option to award pre-settled status. This meant the letter generated and sent to Mr A did not provide a period for his LLTR entitlement, which should have been five years. It also meant Mr A could not generate a share code, which applicants who have been awarded pre-settled status should be able to generate and share with their employers as evidence of their right to work in the UK.
26. The letter also explained how Mr A could either appeal the decision or request an Administrative Review. Administrative Review is when UKVI will look again at the decision if this is requested within 28 days.
27. In January 2023, Mr A made the decision to return to his country of citizenship as he said he was unable to evidence his right to work in the UK. He returned to the UK in June 2023 and then challenged UKVI’s decision. Mr A requested an Administrative Review in early July, and it was at this point that UKVI identified a technical error was preventing Mr A from generating a share code.
28. UKVI identified that the refusal decision had been wrongly entered into its system rather than the correct decision to vary the application and grant Mr A LLTR. This means that regardless of whether Mr A tried to generate a share code or future employers used the ECS, the incorrect decision would prevent the system from generating the appropriate information and so would incorrectly show Mr A did not have the right to work in the UK.
29. In mid-July 2023, around two weeks after it was made aware of its error, UKVI resolved the problem and sent Mr A an updated decision letter which correctly set out he had LLTR, and he would now be able to prove his status and right to work and generate a share code.
30. From our contact with Mr A, we understand that his experience with UKVI caused him stress and confusion. He said he had to leave the UK and return to his country of citizenship, and he was unable to financially support himself (in either place) as he was unable to work. He said this caused him intense financial hardship and UKVI should enable recovery of his credit status to take place.
31. In mid-July 2023, Mr A told UKVI that he wanted to pursue compensation to account for the impact its error had on his life. A complaint was registered the same day and this was formally acknowledged by UKVI in August 2023. In mid-August Mr A set out his total compensation claim for £64,647.69 and said this figure would increase by £30 per day until the matter was resolved.
32. He gave the following breakdown:
• Serious mental health damage - £30,000.00 • Loans from friends and family - £1,860.00 • Loans from companies (as of 13 December 2022) - £8,957.69 • Board and lodgings costs (as of 17 August 2023) - £3,830.00 • Future place to rent, and Mr A set out that this included the impact to his credit score as well as the loss of his previous property in February 2023 - £20,000.00
33. In September, Mr A increased his compensation request to £67,728.00. This now included:
• Loss of salary (paid at £32,000.00 per annum) - £18,670.00 • Board and lodgings - £5,100.00 • Board and lodgings in the EU country Mr A returned to live in January 2023- £3,000.00 • Interest payable on short-term loans - £5,958.00 • Damage to mental health - £30,000.00 • Resolution of credit score issues - £5,000.00
34. At the start of October 2023, the claim increased to £91,977.
35. From the information we have seen from both Mr A and UKVI, we can see that it did not handle his EUSS application in line with its guidance.
36. Although the records show that Mr A was eligible for LLTR, its technical error in inputting the wrong decision meant that its system showed a refusal decision, and its December decision letter was not the correct template, which would have provided the information he needed at that time. This meant that UKVI did not properly inform Mr A of the LLTR decision or his full entitlement to remain living and working in the UK until its July 2023 letter.
37. This is not in line with our Principles of Good Administration, which say public bodies should get it right. To do this public bodies have regard to the relevant legislation. They should follow their own policy and procedural guidance, whether published or internal.
38. Our Principles of Good Administration also say that public bodies should be open and accountable. By doing so, they should take responsibility for the actions of their staff. When mistakes happen, public bodies should acknowledge them, apologise, explain what went wrong and put things right quickly and effectively.
39. On 9 November 2023, UKVI upheld Mr A’s complaint. It apologised for entering the wrong decision for the application and for the distress and inconvenience it caused. It explained it was a human error by an individual caseworker and had not been identified at the time. When the matter was later identified, it took appropriate steps to ensure that it did not happen again.
40. UKVI explained that under its ex-gratia payment scheme, it considers reimbursing reasonable costs where it is at fault. It considered its guidance and offered a consolatory payment of £2,000 to recognise the distress and inconvenience caused by incorrectly recording and communicating its decision on Mr A’s application in December 2022.
41. UKVI said it was unwilling to award all the elements of Mr A’s claim, namely the lost wages, boarding costs, future rent, and the impact to Mr A’s credit rating. It said that it accepted the distress the incorrect recording and communication of its decision caused, and the impact this would have when Mr A had long-standing mental health issues. It was not satisfied that it was responsible for all the issues Mr A experienced following its decision.
42. Mr A escalated his complaint in early November 2023. The next week, UKVI sent a final complaint response to Mr A as it had considered his escalated complaint. It upheld its decision to award £2,000 as a consolatory payment. It again apologised for its contradictory decision notice it had issued to him in December 2022.
43. UKVI makes ex-gratia payments to customers as redress for maladministration. It does this by considering its ex-gratia payments financial redress guidance. Parliament makes no provision in legislation concerning ex-gratia payments. Decisions to make an ex-gratia payment are a matter of judgement.
44. The law also does not have a definition of maladministration, but it is generally agreed to be a lack of care, judgement or honesty in the management of something; for example, failing to take the correct action like in this case, by entering an incorrect decision into its system.
45. The ex-gratia guidance sets out how UKVI can make awards for actual financial loss, such as loss of earnings, and non-financial loss such as cases where maladministration directly caused the customer exceptional distress, embarrassment, or inconvenience. In cases of non-financial loss, UKVI awards a consolatory payment instead.
46. When considering a consolatory payment, UKVI’s ex-gratia team should consider the issues and the level of distress or other emotional impact caused. These payments are consolatory and not intended to be based on a comprehensive assessment of the distress actually suffered.
47. One should be offered when serious or persistent errors have been made, or the ex-gratia team is reasonable satisfied that maladministration led to the distress as the customer has claimed. Each case should be considered on its own merits and should reflect the degree of distress experienced by the customer.
48. UKVI requested information from Mr A to help it consider his request. It asked for copies of Mr A’s last 6 payslips from the job he had lost, evidence from his employer to confirm the reason his job was terminated and any other information he would like it to consider.
49. Mr A provided 13 wage slips, a timeline of the events which explained how the error impacted his mental health and his termination letter from his ex-employer.
50. This letter set out that his ex-employer was unable to contact him as his UK telephone number was no longer in service. Mr A said given his depressed state, he was unable to have a rational conversation with them, and this was also why he did not respond to UKVI. He confirmed that his ex-employer was unaware of his difficulties with the Home Office and the effect on his mental health and they were unaware of the reasons for his absence.
51. Mr A explained to UKVI, when it asked, that he did not challenge its decision in December 2022 because the decision ‘had a shattering impact’ on his ability to rationalise the situation so ‘he simply accepted’ what he understood the advisor to have told him, that he was no longer wanted in the UK, and he had to leave.
52. He said that given his mental health and the distress UKVI’s decision caused, challenging the decision would not have been possible at that time. He said he was only able to challenge UKVI’s decision with the intervention of his friends in the UK.
53. When considering the information it received, both as part of its ex-gratia process and its complaints process, UKVI recognised the wrong decision letter had caused distress. It also acknowledged that ‘it [was] unfortunate that [you] had long standing serious mental health issues which meant [you] did not react rationally to when [you] received the letter’. It noted that it was clear Mr A did not fully read the letter when he received it, nor did he challenge the decision.
54. UKVI concluded that though it made a serious error, Mr A must bear some responsibility for the consequences he suffered following his reaction to the error. It said that it was clear that Mr A’s mental health concerns were not caused by its error but accepted that its error exacerbated them.
55. It said once Mr A challenged the information it had shared in its December decision letter, it took UKVI only two weeks to correct its records that Mr A had been awarded LLTR. Therefore, it said it was reasonable to consider that had he challenged the decision at the time, the error could have been resolved by late January and Mr A need not have lost his job.
56. The ex-gratia guidance allows UKVI to consider reimbursement for lost wages for up to one month after it corrected the error, if Mr A had not already found alternative work. It noted that there was a seven-month gap between it making the error in December 2022 and Mr A raising his concerns in early July 2023, shortly after which it corrected the error.
57. It said that it would not reimburse Mr A for eight months’ worth of lost wages as it was not satisfied that Mr A would have lost his job had he challenged its decision, which would have allowed it to identify the error, and if he had discussed this with his employer.
58. It also highlighted that Mr A left the country of his own accord and failed to contact his employer, who later terminated his employment. It did not believe that this aspect of his claim and the repercussions amounted to maladministration on its part.
59. Instead, it offered a consolatory payment of £2,000 to put right the distress and exacerbating impact on his mental health for which it accepted its error had caused. It rejected the other elements of Mr A’s claim and said its offer apportioned the responsibility fairly between itself and Mr A.
60. The IEC in its report agreed with UKVI’s findings. It found that its offer of £2,000 was enough to put right the impact caused by UKVI’s errors, alongside an explanation and an apology for some other matters, such as not advising Mr A how to make a formal complaint in its telephone calls at the end of June 2022 and an earlier delay in processing the application, which he has not asked us to look at as part of our work.
61. From the information we have seen, including UKVI’s complaint responses and the IEC’s report, we are satisfied that UKVI acted in line with our Principles of Good Administration. It took swift action to rectify its error, and it apologised for its error and the impact this had and explained to Mr A what went wrong. It also made appropriate improvements to its service to prevent this from happening again.
62. When considering UKVI’s decision making about its consolatory payment and other actions to put things right, we consider whether it has acted in line with its own guidance on remedy, our Principles for Remedy and our Guidance on Financial Remedy.
63. Our Principles say to act fairly, remedies should be fair, reasonable and proportionate to the injustice or hardship suffered. The public body should consider how the circumstances of the case have affected the complainant in all ways. When considering a remedy, it is reasonable for a public body to take into account any way in which the complainant has contributed to or prolonged the injustice or hardship.
64. To put things right where maladministration or poor service has led to injustice or hardship, public bodies should try to offer a remedy that returns the complainant to the position they would have been in otherwise. If not possible, the remedy should compensate them appropriately.
65. Public bodies should calculate payments for financial loss by looking at how much the complainant has demonstrably lost or what extra costs they have incurred. Financial compensation may also be appropriate to remedy any injustice or hardship that results from pursing a complaint as well as the original dispute. Remedial action may include improvements to the public body’s policy and procedures.
66. UKVI’s ex-gratia guidance says that when deciding claims for non-financial loss, it will need to look at:
• How serious the error caused by maladministration was • How long the error has persisted • What is the impact of the error and • What is the duration of the impact on the customer.
67. We can see that once made aware, UKVI rightly acknowledged its error, rectified the error in a timely manner and apologised that the error occurred. It made improvements to its service to ensure the same situation did not happen again.
68. It considered Mr A’s claim for financial compensation and weighed the evidence he provided (which set out his financial loss, distress and impact to his mental health) in light of the circumstances and in line with its guidance.
69. Mr A told us that he had to leave the UK and return to the third-party EU country which intensely damaged his mental health. He said he was unable to work while in the UK and abroad meaning he could not financially support himself. He said this caused him intense financial hardship and UKVI should put right his financial losses.
70. After UKVI first received Mr A’s application in June 2021, it sent a certificate of application in early August 2021. This certificate allowed Mr A to prove his residency rights under the withdrawal agreement, which meant that he could continue living and working in the UK as normal, while his application was being considered.
71. Despite the lack of full information in its original decision letter in December 2022, the letter explained that although Mr A had not met the requirements for ILR he had been granted LLTR. It explained that if he appealed its decision, he could continue to use his certificate of application and his rights remained protected, meaning Mr A could continue to live and work as normal and would have been able to generate a share code.
72. UKVI’s website explains how a customer can use their eVisa to access and use their online immigration status. This explains that if a customer can view their eVisa but cannot use it to get a share code then the customer should report an error.
73. Me A spoke to UKVI about his inability to generate a share code, and UKVI explained what action he could take to resolve the issue. Despite this explanation, Mr A made the decision to leave the country and return to his country of citizenship. We can also see that Mr A lost his job because his employer was not able to contact him, rather than the issues with the share code necessarily acting as a barrier.
74. Having considered everything very carefully, we cannot link the impact that Mr A describes with UKVI’s errors.
75. In our view, the impact caused to Mr A by UKVI’s errors was a period of distress, frustration and inconvenience in December 2022, where understandably Mr A needed some time to process the contents of the letter, and January 2023 when he returned to the third-party EU country. We also consider the UKVI caused the same impact from mid-June 2023 when Mr A returned to the UK and raised his concerns until it rectified matters in July 2023.
76. UKVI provided the opportunity for Mr A to resolve the issue in December 2022, meaning we cannot say that it is responsible for the financial and emotional difficulties he describes between January and June 2023.
77. We acknowledge that Mr A’s mental health was poor at this time, and that he tells us this affected his ability to directly engage with UKVI. He explained that he was able to engage with UKVI with the help of his friends (who helped him understand UKVI’s December 2022 decision) both before and after his return to the UK.
78. We can see that there are both local and national advocacy services which could have supported Mr A in understanding and challenging UKVI’s December 2022 decision, such as the Citizen’s Advice Bureau. He was also able to benefit from personal support from friends, as above.
79. With this in mind, we appreciate both that this was a difficult time for Mr A and that with personal or advocacy support to help him challenge UKVI’s decision, he may have been able to raise his concerns at the time, rather than take the decision to leave the UK. This remains the responsibility of the applicant.
80. Our Guidance on Financial Remedy explains how we consider the impact of an organisation’s mistakes. Where necessary, we may suggest that the organisation makes a financial payment to put right its mistakes.
81. To assist us in making this decision, we use our severity of injustice scale. This helps us to ensure that any financial recommendations we make are consistent with similar cases and transparent for everyone who uses our service.
82. UKVI awarded Mr A £2.000. When we compare its award to our severity of injustice scale, this sits at level 4. When we recommend awards at level 4, we consider amounts between £1,250.00 and £3,700.00 to be an appropriate remedy.
83. Our scale describes cases at level 4 as those that will involve the person affected experiencing a significant and/or lasting impact, so much so that to some extent it has affected their ability to live a relatively normal life. In these cases, the injustice will go beyond ‘ordinary’ distress or inconvenience, except in cases where it is very prolonged; the injustice will often be such that, even after the poor service ends, the failure could be expected to have some lasting impact on the person affected. The matter may ‘take over’ the affected person’s life to some extent.
84. Considering the impact which we identified from our review of the available evidence, we are of the view that the impact to Mr A caused by UKVI’s error sits at level 2 of our scale. This is because the error can be considered as ‘a relatively low impact failing, often resulting in a degree of distress or inconvenience, or more serious injustices where the impact was of a short duration. We would expect the person affected to recover quickly once the poor service had ceased.’ As UKVI has provided Mr A with a higher, level 4 remedy, we can see it has taken appropriate action to put things right.
85. UKVI’s errors did cause Mr A distress, frustration and inconvenience and our view is that these impacts were for a much shorter period than the period Mr A described and were of varying degrees of intensity. Once UKVI put right its error and sent Mr A its decision letter in July 2023, we are of the view that this would effectively reduce the intensity of the impacts its errors had on Mr A.
86. Neither have we seen that it has any responsibility to remedy any financial hardship Mr A experienced which he had the opportunity to mitigate by contacting UKVI sooner or by making different choices about his employment and place of residency.
87. With this in mind, we can see that UKVI has provided an appropriate remedy of apology and £2,000 for the impact of distress caused to Mr A by its error. Its award is over and above the remedy that we would likely recommend in this case. We can see it has clearly explained why it does not consider a further financial remedy for distress and costs incurred to be appropriate and, for the reasons set out above, we are satisfied this is in line with both UKVI’s and our own guidance. This means we will take no further action.
88. We thank Mr A for bringing his concerns to our attention and we understand how important this complaint is to him. We hope he will be reassured that we have not found anything to make us think that we need to ask UKVI to take any further action in relation to the issues we have considered.