2016 visa application decision
20. Mr A complains UKVI did not consider the full evidence he and Ms A provided to support their claim of their genuine and subsiding relationship, or the cultural and religious reasons why they had not lived together for two years. He complains consequently UKVI incorrectly deemed Ms A had not met the leave to remain as a partner requirement, and consequently denied Ms A’s application for leave to remain on 24 October 2016.
21. Mr A tells us, in the years between Ms A’s January 2014 and July 2016 leave to remain applications they stayed in a country in South East Asia for around one year. He says, during this time they were not unable to live together for cultural and religious reasons. He told us this is because living together before being married goes against the country’s culture and therefore would have caused Ms A’s conservative and religious family great difficulty. He said instead, they compromised by living near each other; Ms A lived with her family, and he lived nearby in a condominium. He told us they regularly stayed at each other’s houses and spent almost every day and night with one another.
22. Mr A told us, before and after living in that country, they lived together in the UK, which they evidenced to UKVI.
23. Mr A noted Annex FM Section 2.0 of the Immigration Rules outlines the cultural and religious grounds UKVI must consider when assessing if applicants meet the criteria of 'living together’ when it decides if applicants meet the criteria for a genuine and subsisting relationship. He also noted this section of the Immigration Rules states the decision must not be a 'tick box' exercise and should instead look at the full details of the relationship. Mr A considers the evidence he and Ms A provided to UKVI, such as joint bank accounts, tenancy agreements, letters from family, etc. demonstrated a genuine and subsisting relationship. He also noted UKVI previously deemed they met this requirement when it granted Ms A leave to remain in January 2014.
24. UKVI’s 24 October 2016 decision letter to Ms A states it did not grant Ms A leave to remain application because she did not fulfil the definition of being Mr A’s partner. It noted GEN.1.2 of the Rules defines ‘partner’ as ‘the applicant's spouse, civil partner, fiancé(e) or proposed civil partner, or a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application.’ The letter states Ms A did not fulfil the definition of a ‘partner’. It said she did not meet the requirements because she was unmarried and returned to South East Asia in August 2014, and for family and cultural reasons lived apart from Mr A, until she returned to the UK in November 2015.
25. We begin our consideration by looking at the sections of the Immigration Rules relevant to this case.
26. GEN 1.2 of Appendix FM of the Immigration Rules states ‘partner’ means the applicant’s spouse, civil partner, fiancé(e) or proposed civil partner, or a person they have been living together with in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application.
27. The Getting it Right section of our Principles of Good Administration states, when public bodies make decisions, they should have regard to the relevant legislation. Decision making should take account of all relevant considerations, ignore irrelevant ones and balance the evidence appropriately
28. Annex FM Section 2.0 of the Immigration Rules covers UKVI’s assessment of whether a relationship is genuine and subsisting. Sub-section 3.0 of this guidance states:
‘Caseworkers must be alert and sensitive to the extent to which religious and cultural practices may shape the factors present or absent in a particular case, particularly at the entry clearance/leave to remain stage. For example, a couple in an arranged marriage may have spent little if any time together prior to the marriage. For many faiths and cultures marriage marks the start of a commitment to a lifelong partnership and not the affirmation of a pre-existing partnership.
Caseworkers must take into account normal practices for marriages and family living according to particular religious and cultural traditions when considering the factors present or absent in each case. In particular, evidence of pre-marital co-habitation and joint living arrangements can be a factor associated with a genuine relationship; equally, their absence can be too. In some cultures it is traditional for the household accounts, bills etc to be in the name of the male head of the household (who could be the male partner or their father or grandfather).
Caseworkers have discretion to grant or refuse an application based on that overall assessment, regardless of whether one or more of the factors below is, or is not, present in the case. Consideration of whether a relationship is genuine and subsisting is not a checklist or tick-box exercise.’
29. The records document UKVI decided on 24 October 2016 Ms A did not fulfil the definition of being Mr A’s ‘partner’ because she returned to South East Asia in August 2014 and lived apart from Mr A, for family and cultural reasons, until she returned to the UK in November 2015. On this basis, UKVI decided not grant Ms A leave to remain.
30. The records that document UKVI’s assessment of Ms A’s application that led to its 24 October 2016 decision state:
• UKVI had previously granted Ms A leave based on her relationship with Mr A
• Mr and Ms A provided ample evidence of recent cohabitation
• Ms A and Mr A returned to South East Asia together in August 2014 and for family and cultural reasons lived apart, until they returned to the UK in November 2015
• the caseworker was satisfied Ms A and Mr A had a genuine and subsisting relationship.
• Mr and Ms A provided no evidence they resided together for the two years prior to submitting the application.
• Mr and Ms A did not meet the definition of ‘partners’, because they have not lived together for the two years prior to the application.
• Ms A failed to meet the requirements of the visa because she lived separately from Mr A while living in South East Asia.
31. The records UKVI made during the appeal process document it sought internal legal advice. The legal advice stated the legislation’s definition of ‘partner’ is worded in a way that includes applicants who have demonstrated they have lived together for two years but not immediately prior to the application. It said, if UKVI is satisfied Mr and Ms A lived together in a relationship akin to marriage between 2008 and 2011 that has subsisted until the date of the application, but had to live apart for good reasons, they would meet Gen 1.2 of the Rules.
32. During our investigation UKVI provided further information to us. It said, when it made a decision about Ms A’s application, its caseworker did not:
• attach the appropriate weight to the information Mr and Ms A provided about the cultural and religious reasons why they did not live together in South East Asia
• utilise the relevant guidance available on the subject
• consult their senior caseworker before refusing the application.
33. The records and the information UKVI provided to us during our investigation indicate the caseworker interpreted the definition of ‘partner’, in GEN 1.2 of Appendix FM of the Immigration Rules, as such that the applicant must have been living with their sponsor for two years consistently and immediately prior to the date of application.
34. Section GEN.1.2 of Appendix FM, of the Immigration Rules does not specify the applicant and the sponsor must have been living together for two years immediately prior to the application.
35. UKVI’s records document its caseworker noted there were cultural and religious reasons why Mr and Ms A had not been living together in South East Asia. The records indicate the caseworker decided Mr and Ms A did not meet the definition of ‘partner’ despite these reasons. However, the caseworker did not document the reasons why they considered Mr A and Ms A did not meet the definition of ‘partner’ after they took these reasons into account.
36. UKVI provided further information to us on 16 January 2020. It said, for a couple who are not married or in a civil partnership, the two-year period of living together ‘does not have to be completed immediately preceding the date of application if, for example, the couple are currently living apart for work reasons in order to meet the financial requirements of the rules, provided that the relationship continues to be genuine and subsisting at the date of application.’ It said, having reviewed the information provided, the evidence shows Ms A ‘had lived with her partner prior to moving to South East Asia and throughout the couple living there it was evident that the couple maintained a relationship throughout and then both moved back to the UK and resumed living together.’ It said, ‘it is considered that the refusal of Ms A’s application due to not meeting the definition of partner was incorrect.’
37. During the appeal process UKVI noted the evidence Ms A provided in support of her original application demonstrates the couple had continued to live together since returning to the UK. UKVI also liaised with its policy department during the appeal process. It determined it was satisfied Ms A met the definition of ‘partner’, and on 28 March 2018 it reversed its original decision and granted leave to remain status to Ms A until 28 September 2020.
38. The evidence, including the information UKVI provided to us on 16 January 2020 advising that its original decision was ‘incorrect’, leads us to conclude that UKVI did not follow its own policy and approach when it made its original decision it:
• did not document its consideration of the explanation Mr and Ms A provided to about why they did not live together in South East Asia
• incorrectly interpreted the definition of ‘partner’ in the Rules as such that the applicant and sponsor must have been living together for two years immediately prior to the application.
39. UKVI did not act in line with our Principle of Good Administration when it made its original decision about Ms A’s application. This is because it did not follow its own policy and approach and did not take account all relevant considerations to the application.
40. UKVI’s actions fell so far short of what it should have done, this constitutes maladministration.
41. Mr A complains, when UKVI responded to his complaint, it:
• incorrectly stated its decision in 2016 not to award a visa was correct
• ignored the specifics of his complaint
• did not explain why it did not follow guidance relating to religious and cultural reasons when it made its original decision
• has not apologised for its 2016 decision
• continued to suggest Ms A could have accepted the refusal of her leave to remain application in order to return home when Ms A complained she could not return home while continuing her appeal because accepting the refusal was not an option.
42. The Home Office guidance for UKVI complaint handling states:
‘…the complaints handling process is not the appropriate avenue to challenge a decision made by Border Force in relation to immigration or customs functions. Details of alternative contact routes to Border Force decisions can be found on the Border Force website. However, sometimes a complaint will be made submitting alleging misconduct or raising service issues concerning a decision refusing leave to enter. In these cases, the investigation should ensure the appropriate area addresses the decision-making process and an independent officer should also be asked to review the decision.’
43. This guidance also states the Home Office make ex-gratia payments as redress for maladministration.
44. UKVI’s 14 March 2018 decision not to respond to Ms A’s complaint was in line with its complaint guidance. This is because the correct process for her to raise the issues at that stage was through the appeal process.
45. UKVI said in its 19 December 2018 letter that the decision it made on 24 October 2016 not to grant leave to remain to Ms A was correct and reasonable. It did not respond to the specific points Ms A raised in her 15 December 2018 complaint letter about cultural and practical issues, specifically that UKVI incorrectly determined she had not met the definition of ‘partner’ because she and Mr A had not lived together while living in South East Asia.
46. On 16 April 2019 UKVI responded to Ms A’s 14 January 2019 request that it review its ex gratia decision on the basis that UKVI’s original decision to refuse her application was incorrect. UKVI said it refused her application on 24 October 2016 because it was not satisfied the evidence she provided warranted a grant of leave exceptionally outside the immigration rules.
47. As noted earlier, UKVI told us its decision to refuse Ms A’s application for leave to remain on the basis that she did not meet the definition of ‘partner’ was ‘incorrect’, and its caseworker did not follow appropriate processes when reaching this decision.
48. Our principles of good complaint handling state organisations should investigate complaints thoroughly and fairly, basing their decisions on the available facts and evidence, and avoiding undue delay.
49. UKVI did not act fairly when it failed to acknowledge in its local resolution response letters that:
• it made mistakes when it assessed Ms A’s original application
• its 24 October 2016 decision to refuse Ms A’s application was incorrect.
50. This amounts to a failing in complaint handling.
51. Mr A told us the issues he complained about led to him and Ms A going through an unnecessary appeal process between November 2016 and February 2018. He says UKVI’s decision and the consequent appeal process caused him and Ms A considerable upset and distress due to:
• the time UKVI took to issue the visa
• the uncertainty of the process
• and because the Home Office withheld Ms A’s passport during the appeal process. He tells us this prevented Ms A from visiting her Grandmother (who raised her for large periods of her childhood) when she was diagnosed with and died from cancer. Ms A’s sister was married during the appeal process and Ms A was not able to attend the wedding.
52. Mr A tells us the experience caused, and continues to cause, Ms A a great deal of stress, particularly because the Home Office refuse to take responsibility for this situation.
53. UKVI make discretionary decisions about whether to grant visas. It is our role to consider whether UKVI made its decision in line with its own guidance and our Principles of Good Administration. It is not our role to decide if the decision UKVI reached was correct. However, during our investigation, UKVI told us the maladministration we identified led to it making an ‘incorrect’ decision on 24 October 2016 not to extend leave to remain status to Ms A.
54. UKVI issued a leave to remain visa to Ms A during the appeal process, on 28 March 2018.
55. The maladministration we identified led to UKVI making an incorrect decision not to grant leave to remain status to Ms A on 24 October 2016. Had it correctly processed her application, it would have identified she met the criteria of ‘partner’ set out in the Rules and therefore she would have met the criteria for UKVI to issue leave to remain status to her on 24 October 2018. It is our view, had UKVI taken into account all the relevant evidence and weighted it appropriately, it would have prevented the 17-month delay in issuing the visa, between 24 October 2016 to 28 March 2018.
56. Mr A told us Ms A’s Grandmother (who raised her for large periods of her childhood) was diagnosed with and died of cancer while waiting for her appeal. He tells us, as UKVI held her passport during the appeal, she could not return home to see her. Ms A’s sister also married during the appeal process and Ms A was not able to attend the overseas wedding.
57. The evidence Ms A provided documents her sister married on 15 February 2017 and her grandmother died on 1 April 2017 in South East Asia. These events occurred during the appeal process.
58. The records confirm UKVI held Ms A’s passport for 17 months during the appeal process.
59. We considered Ms A’s statements about her plans to return home for these events and we have been persuaded, it is more likely than not, Ms A planned to return home for these events.
60. During the appeal, Ms A contacted UKVI to enquire about it returning her passport and sought legal advice on the matter. UKVI advised Ms A could collect her passport at the airport if she withdrew her appeal application. However, UKVI advised if Ms A requested UKVI return her passport, she could not continue her appeal or reside and work in the UK.
61. UKVI’s 19 December 2018 and 16 April 2019 complaint response letters state Ms A could have requested her passport back and returned home. It said, as she did not request her passport, they could not make an ex-gratia payment relating to missing a wedding and the death of a close relative.
62. Ms A did have a choice, she could have requested her passport from UKVI to enable her to leave the UK to see her grandmother and to attend her sister’s wedding. However, there were serious consequences to requesting UKVI return her passport. She would have had to accept UKVI’s 24 October 2016 decision, withdraw her appeal against this decision, and return to her country of origin. Ms A would have had to give up her life in the UK, in order to return to South East Asia. Ms A faced a very difficult and distressing decision that she would not have had to make had UKVI issued leave to remain to her on 24 October 2016. The 17 month delay in UKVI issuing leave to remain to Ms A prevented her from visiting her grandmother before she died, and she was not able to attend her grandmother’s funeral or her sister’s wedding.
63. Had UKVI issued leave to remain status to Ms A on 24 October 2016 this would have prevented the 17-month delay in issuing leave to remain to Ms A. This would have prevented her from facing a very difficult decision about whether to return to South East Asia and give up her appeal, and not being able to visit her Grandmother before she died attend her Grandmother’s funeral, or attend her sister’s wedding, which caused Mr and Ms A considerable upset and distress.
64. Mr A tells us the way UKVI handled her complaint caused Ms A a great deal of stress, particularly because UKVI refuse to take responsibility for this situation.
65. UKVI could have prevented the additional stress Ms A experienced when it responded to her complaint. Had it acknowledged in its 19 December 2018 complaint response that it made errors when it assessed Ms A’s application and this led to it making an incorrect decision to refuse her application, it could have resolved Ms A’s complaint much sooner, avoided the need for the Ombudsman to investigate her complaint, and prevented the additional stress she experienced.
Cost of the appeal application
66. Ms A paid a £140 appeal application fee to UKVI to submit the appeal. Ms A would not have incurred this fee had UKVI carried out the assessment of her application in line with its policies and approach.
67. Ms A is seeking £1,470 for the reimbursement of the out of pocket legal fees she incurred when she sought advice and representation during the appeal process.
68. The evidence Ms A provided, documents she paid £1,470 in legal fees to gain representation during the appeal process. Ms A tells us she sought legal advice about her options after she received UKVI’s decision letter because UKVI advised her options were to leave the country in 14 days or appeal the decision. She told us she required the lawyer to appeal the decision and represent them at the hearing. She told us the lawyer:
• prepared the documents for their court date
• identified relevant references to case law
• identified the guidance UKVI should have used when making their decision
• took witness statements
• spoke to the representative from the Home Office on the day of the appeal about the case. During this conversation the Home Office decided there was not enough evidence to refuse the visa and sent the application back to the Home Office to reconsider.
69. Ms A told us she would not have been able to go through the appeal process without legal advice. She believes the legal support was essential to UKVI overturning its decision and she may not have been able to rectify the situation without legal advice.
70. The ‘Putting things right’ section of our Principles for Remedy states an appropriate remedy includes financial compensation for direct or indirect financial loss. These Principles also state ‘remedies may need to take account of injustice or hardship that results from pursuing the complaint as well the original dispute. Financial compensation may be appropriate for costs that the complainant incurred in pursuing the complaint’.
71. In UKVI’s 19 December 2018 complaint response letter it said it ‘will only consider reimbursing customers for legal fees if the costs have been incurred as a direct result of its maladministration and the customer could not reasonably have been expected to take any further steps of their own in trying to resolve the matter without recourse to legal assistance.’ It said, ‘We are not satisfied that your case was of sufficient complexity to mean that legal assistance was essential. Taking legal advice was a choice made by you and although you feel that you could not have undertaken the services provided by your representatives, steps on how to submit an appeal are provided with your refusal notice.’
72. Mr A says Ms A did require legal support. He said the Home office website suggests getting legal support and she found it essential. He says they were faced with the possibility that a failed appeal would lead to her losing her home, job, and friends in the UK. He says it was therefore essential for them to seek legal assistance, particularly given the situation, the high stakes, and their lack of legal knowledge.
73. Ms A says the complexity of a case is a subjective matter dependent on the skills and knowledge of the individual, and not a matter of objective fact, particularly given Ms A was a foreign national. He says they would not be able to, and UKVI should not have expected her to, go through the appeal process without legal support.
74. The Home Office’s ‘Appeal against a visa or immigration decision’ web page outlines help applicants can get when going through the appeal process. It states applicants can get help from a solicitor, an immigration adviser, and Citizen’s Advice. It also provides advice about applicants representing themselves.
75. During the appeal Mr A contacted his MP to request they contact UKVI about Ms A’s case and to find out if UKVI could return her passport to enable her to travel, or if she would need to withdraw her appeal and accept the visa refusal to have her passport returned.
76. On 10 February 2017 Mr A’s MP replied to him by email. They told him UKVI had strongly advised he seek independent legal advice about the possible options available to Ms A. They noted UKVI told them appeals can be expedited on compassionate grounds and this was at the discretion of Asylum & Immigration Tribunal Services. They also noted UKVI advised Ms A could withdraw her appeal application and collect her passport at the airport.
77. It was reasonable for Ms A to seek legal advice during her appeal, given the advice from UKVI to do so and the possible serious consequences of an unsuccessful appeal. Mr and Ms A benefitted from the legal advice they requested during the appeal process. However, Mr and Ms A would not have required legal advice and would not have incurred the £1,470.00 cost of the legal advice, had UKVI processed Ms A’s initial application in line with its own policies and processes. In line with Our Principles, UKVI should reimburse the out of pocket legal expenses Ms A incurred when she sought legal advice to support her appeal.