UK Visas and Immigration (P-001006)

  • 1.	We have found maladministration with regards to UKVI withdrawing Mr N’s application as we feel it is unlikely he asked UKVI to withdraw it based on the information we have seen so far. Mr N suffered financially as he had to pay for a new application. The issues experienced also delayed the application process and caused unnecessary frustration and distress. UKVI has not remedied his complaint. We therefore recommend UKVI refund the cost of the second application and recommend UKVI acknowledge and apologise for the delays, distress and frustration caused. We have partly upheld this aspect of Mrs N’s complaint.
    
    2.	UKVI currently has a 13-month data retention policy. We explain our thinking in more detail below, however we feel there is nothing further we need to recommend here.  
    
  • 3.	Mrs N complains on behalf of her husband Mr N. She says her husband applied for Entry Clearance at the British Consulate in Turkey on 3 December 2018 for a returning resident visa. If someone has previously been granted permission to settle in the UK, and later leaves the country, they may be able to return without needing additional permission to do so. This will depend on their circumstances (including how long they have been out of the country) and whether they meet set eligibility criteria. However, she says the Consulate incorrectly withdrew the application on 5 December 2018. Mrs N says neither she or Mr N asked for the application to be withdrawn and feels UKVI withdrew the application erroneously. Mrs N says the V&I Application Centre at the Consulate has said it shredded the alleged withdrawal letter immediately and has no evidence to prove they asked to withdraw the application. 
    
    4.	Mrs N says the mistaken withdrawal delayed Mr N obtaining a visa. Mrs N says the decision to withdraw the first application and failure to acknowledge this mistake has meant they had to pay for a second application unnecessarily. Mrs N says this has affected them financially as UKVI has not refunded the application. She says she and her husband have been caused stress and frustration by the issues with the application. Mrs N says the delays caused by the first application being withdrawn led to her husband’s job application being withdrawn. She feels this would have been avoided had UKVI not incorrectly withdrawn the first application. 
    
    5.	As outcomes, Mrs N would like UKVI to refund the cost of the first application. She would also like UKVI to change its procedure to ensure it keeps correspondence for six months to ensure it can properly address complaints. She would like UKVI to apologise and acknowledge its failings
    
  • Administrative background 
    
    6.	UKVI is responsible for granting visas to non-British citizens looking to work in the UK. Entry clearance is the procedure used by Entry Clearance Officers (ECOs) at British missions overseas to check, before a person arrives in the UK, if that person qualifies under the Immigration Rules for entry to the UK.
    
    Background to complaint
    
    7.	Mr N is a Turkish Citizen. He had previously been granted permission to settle in the UK – sometimes known as indefinite leave to remain (ILR). However, Mr N returned to Turkey in 1993. His wife and children are British Citizens. 
    
    8.	In October 2018, Mr N received a job offer in the UK, so, on 3 December 2018, he applied for a returning resident visa. As part of this application, he sent UKVI his biometric information, including his passport.  
    
    9.	UKVI’s records show that it began to process Mr N’s application and contacted him to say this was happening. However, on 11 December 2018, it recorded his application as withdrawn. According to UKVI’s records, this was based on an email it had received from the British Consulate, dated 5 December, which said Mr N had asked to withdraw the application. According to the email, Mr N had withdrawn the application because he ‘needs [to go] back to England and has a ticket’. Mr N disputes telling UKVI he wanted to withdraw his application and it is not clear from either the email or UKVI’s other records where it got this information from.
    
    10.	Based on this information, UKVI returned Mr N’s passport to him. However, on 14 December 2018, Mr N (through his legal representative) contacted UKVI to ask why it had done this. He said he had not withdrawn his application.
    
    11.	On 18 December 2018, UKVI reversed its decision and noted on its records that it had withdrawn the application ‘in error’.  The following day, UKVI contacted Mr N to say it was reinstating his application. It asked him to ‘accept our apologies for this inconvenience’. UKVI asked Mr N to resubmit his passport which he duly did.
    
    12.	UKVI’s records show it withdrew the application for a second time on 28 December. According to the records, this was based on Mr N’s original request. UKVI noted that Mr N had been in contact about the earlier withdrawal decision. However, it went on to describe this as an ‘escalation’ in which Mr N had been ‘chasing the decision’. UKVI noted that it had ‘assumed’ from this contact that Mr N had ‘wanted to go ahead with the application’.
    
    13.	UKVI’s records show that it again returned Mr N’s passport to him. Although Mr N confirms he received the passport, he says there was nothing to go with it which explained why UKVI had returned it. 
    
    14.	On 31 December (the day he received the passport) Mr N contacted UKVI again to find out what was happening. On 4 January 2109, UKVI contacted Mr N to acknowledge receipt of his enquiry. It said it would investigate his concerns and let him know the outcome.
    
    15.	Because he had not received a response, Mr N contacted UKVI again on 23 January 2019. Two days later, he flew to the UK.
    
    16.	UKVI told Mr N on 6 February 2019 that it would not be reinstating the application. It explained that it no longer had his withdrawal request because it had been ‘securely shredded as per our policy’.  UKVI said that, despite the absence of the original request, it believed Mr N had withdrawn his application so he could travel to the UK. It said his flight to the UK on 25 January supported UKVI’s belief. 
    
    17.	Mr N made, and paid for, a new application but, on 28 February 2019, UKVI refused it. Although Mr N later successfully applied for a spousal visa, by the time he received this, his prospective employer had withdrawn the job offer. 
    
    18.	Mr N complained to UKVI and said he should not have had to pay for second application. This was because he had not asked UKVI to withdraw the first application.
     
    19.	UKVI did not uphold Mr N’s complaint. It said it no longer had a copy of the withdrawal request as it had shredded the document shortly after receipt. However, UKVI stated staff could remember receiving his withdrawal request. It therefore did not refund Mr N for the cost of the second application.
    
    
  • 20.	We have reviewed the information provided by Mr N in support of his complaint, including his complaint form, solicitors letter, and additional information provided upon our request. We have also reviewed information we have requested from UKVI, including its case records and its complaints responses. 
    
    21.	We use related or relevant law, policy, guidance and standards to inform our thinking. This allows us to consider what should have happened. In this case we have referred to the following standards:
    •	Parliamentary and Health Service Ombudsman (PHSO): Principles of Good Administration, 2013.
    •	Parliamentary and Health Service Ombudsman (PHSO): Principles for Remedy, 2013.
    
  • Withdrawal of application
    
    22.	When we asked UKVI about this complaint, it said it stood by its view that Mr N had withdrawn his application. We have so far seen no evidence to support this view.
    
    23.	Under our Principles of Good Administration – ‘being open and accountable’ – we expect organisations to create, and maintain, reliable and usable records as evidence of their activities. We expect them to ensure records can be retrieved and to keep them for as long as there is a statutory duty or business need.
    
    24.	According to UKVI, Mr N made his withdrawal request in writing (something he disputes) but it has no evidence of this document. At first it said it had destroyed the document in line with its document retention policy. However, when we asked about this as part of our investigation, it said the destruction had not been in line with that policy. In fact, it had destroyed the document ‘in error’. 
    
    25.	We should add that knowing for certain why and how UKVI destroyed the original document still would not explain why it did not keep a copy of it, perhaps in another format. As part of its consideration of Mr N’s complaint, UKVI recorded on 2 April 2019 that ‘unfortunately, the VAC has no record of a scanned copy of the withdrawal letter’.
    
    26.	We have noted UKVI’s comment that its staff remember seeing the document but, in the absence of any evidence to support this statement, we are unable to place great weight on it.
    
    27.	We have so far seen no hard evidence a written withdrawal request ever existed. If it did exist, we have so far seen no consistent record of when, how or why UKVI destroyed it. This is a failure to act in line with our Principles. 
    
    28.	Even if we accept UKVI initially had good reason to believe Mr N wanted to withdraw his application, the evidence we have seen so far shows that, by 14 December 2018, the situation had changed. Mr N clearly told UKVI he had not withdrawn his application and wanted it to continue. The evidence further shows that UKVI acknowledged it had made a mistake, apologised for this, and reinstated the application. At this point, UKVI should have continued to process the application but it did not. 
    
    29.	UKVI withdrew the application for a second time on 28 December 2018. According to its records, this was again because it believed Mr N had asked to withdraw the application. As we have already said, there is no evidence Mr N had made such a request, either when he first made his application or after UKVI reinstated it. 
    
    30.	Even if UKVI had originally believed he had wanted to withdraw the application, it had since clarified the position with him. We therefore cannot understand why UKVI continued to believe the request was still current.
    
    31.	UKVI has pointed to Mr N’s travel to the UK in January 2019 as evidence of him withdrawing his application. This does not stand up to scrutiny. The evidence shows that, before travelling, Mr N twice told UKVI (on 31 December 2018 and 23 January 2019) he did not want to withdraw his application. It is also important to note, at the time of travel, Mr N already had permission to enter the UK on another basis. He also had a valid flight ticket and the relevant travel documents. He had twice told UKVI that it, not he, had withdrawn his application in error, a mistake it had made, and later corrected, once before. In the circumstances, Mr N had no reason to believe that taking this flight would invalidate his application or serve as evidence he wanted to withdraw it.
    
    32.	Even if UKVI did believe Mr N’s flight to the UK was evidence of a withdrawal request, it can only have done so in hindsight. As we have seen, UKVI withdrew the application almost one month before Mr N travelled. This means its decision to effectively cancel the application cannot have been based on the flight itself. Indeed, its records show the decision was not based on Mr N’s travel plans but on his apparent request to withdraw his application. For the reasons we have stated, at the time UKVI cancelled the application, there was no evidence Mr N had made such a request. In fact, the evidence shows he had told UKVI exactly the opposite and that UKVI had accepted this.
    
    33.	Under our Principles of Good Administration – ‘getting it right’, we expect organisations such as UKVI to balance evidence appropriately. Also, under our Principles of Good Administration – ‘acting fairly and proportionately’, we expect organisations to listen to their customers. Based on the evidence we have seen so far, we find that UKVI failed to listen properly to what Mr N told it about not withdrawing his application and, as a result, failed to balance his evidence appropriately. This led to UKVI withdrawing his application in error, not once but twice. This is evidence of maladministration and we are likely to uphold this complaint.
    Impact
    
    34.	Because of UKVI’s error, Mr N needed to make, and pay for, a second returning resident’s visa application. This should not have been necessary. Mrs N has asked that UKVI refund the cost of the second application. Our Principles for Remedy say organisations should return complainants to the position they were in before the maladministration occurred. Therefore, if we go on to uphold this complaint, we are likely to ask UKVI to refund this money. We are also likely to ask UKVI to apologise for the distress and inconvenience it caused Mr and Mrs N.
    
    35.	Mrs N has also said UKVI’s error led to her husband not being able to take up a job offer. Whilst we can understand why she may think this, we cannot agree. 
    
    36.	We accept that UKVI’s error meant it did not deal with Mr N’s application as quickly as it should have. However, the evidence shows that UKVI eventually refused the application. Even if UKVI had made a quicker decision on the application, the outcome would likely have been the same.  
    
    37.	Mr N did not challenge the refusal decision but instead applied for permission to enter the country on a different basis. We recognise this process may have taken longer than Mr and Mrs N would have hoped which may have led to the prospective employer withdrawing the job offer. However, it seems likely Mr N would always have needed to follow this process, regardless of UKVI’s error. For that reason, we cannot link the loss of a job offer to the maladministration we have identified.
    
    38.	Mrs N has also said she would like UKVI to revise its policy on keeping documents. This seems to stem from UKVI’s suggestion that it destroyed her husband’s letter shortly after receiving it. For reasons we have explained earlier, we cannot be certain this destruction happened. Even if it had, UKVI has accepted already that a destruction of this kind would not have been in line with its policy (which is to keep documents for a minimum of 13 months). This policy appears to meet the expectations we have set out in our Principles. 
    
    39.	In the circumstances, we will not be making systemic recommendations to UKVI. This is because we are satisfied it already has adequate measures in place to reduce the risk of destroying documents early.
    
    
  • 40.	In considering our recommendations, we have referred to our Principles for Remedy. These say that where poor service or maladministration has led to injustice or hardship, the organisation responsible should take steps to put things right. 
    
    41.	Our Principles state that public organisations should ‘put things right’ and, if possible, return the person affected to the position they would have been in if the poor service had not occurred. If that is not possible, they should compensate them appropriately. 
    
    42.	We recommend that, within 4 weeks of the date of our final report, UKVI should:
    a.	Apologise to Mr and Mrs N for withdrawing Mr N’s application when there was no evidence he had asked it to do so 
    b.	Apologise to Mr and Mrs N for the distress and inconvenience this error caused, and
    c.	Refund the cost of Mr N’s second application.