Small mistakes can have long–term consequences

What happened

Mrs D was a British overseas territories citizen through a connection with Hong Kong, and registered as a British National Overseas (BNO) before 1 July 1997. A BNO can hold a British passport and get consular assistance and protection from UK diplomatic posts. However, BNOs are subject to immigration control and do not have an automatic right to live and work in the UK. The EU does not consider BNOs to be UK nationals.

Mrs D was married to a British citizen. She applied for indefinite leave to remain in 2002 in her married name and included her marriage certificate with her application, but her passport was in her maiden name. UK Visas and Immigration (UKVI) input Mrs D's details on its case information database but did not include her married name. It granted her indefinite leave to remain in summer 2002. Its covering letter at the time (in her married name) advised her that she would need to provide evidence of her indefinite leave to remain once her passport expired, so she would need to take her expired passport with her when travelling.

Mrs D applied for a new British passport in 2002 and 2013. However, when she was returning to the UK from a holiday in autumn 2013, Border Force stopped her. She did not have her previous passport with her, but told Border Force she had lived and worked in the UK for over 20 years. There are no records of what actions Border Force took, but it told us that it was likely it could not locate Mrs D on its database but was persuaded that it was probable that Mrs D had the right to reside in the UK. Border Force stamped Mrs D's passport with two months leave to enter and advised her to legalise her status in the UK.

Mrs D contacted her MP, who told her to seek legal advice. Mrs D made enquiries to UKVI via her MP about the matter, but was advised it held no electronic records for her. In addition, UKVI advised her to apply for indefinite leave to remain and to seek independent immigration advice.

Mrs D applied for indefinite leave to remain in winter 2013 but UKVI told her that she already had indefinite leave to remain. It refunded her fee and advised her to obtain a biometric resident permit, which would confirm her immigration status for her.

An immigration minister responded to Mrs D's letters of complaint. He explained that when Mrs D applied for indefinite leave to remain in winter 2013, staff were unable to find her details because Mrs D's records were in her maiden name. He offered her £250 compensation for its handling of her case.

What we found

We partly upheld this complaint. As a BNO with no ID to confirm her immigration status to Border Force in autumn 2013, it was reasonable that Border Force stopped Mrs D. Also, because UKVI had not entered Mrs D's married name on its database in 2002, there was no way for Border Force to access her records and confirm that she had indefinite leave to remain.

However, we were critical of Border Force because its guidance specifically states that in situations such as these (where staff are satisfied that the passenger is probably legally resident in the UK) they should not stamp passports with two months leave to enter. Instead, staff should make an open date stamp and tell the passenger to provide evidence of their right to reside in the UK next time they pass through passport control.

UKVI failed to input Mrs D's married name into its database in 2002, in line with its guidance at the time. We considered that this had given rise to the events in 2013. However, we noted that UKVI told us that it had told Mrs D to seek immigration advice (which is often free of charge) not legal advice and that she had not told it in her correspondence that she had already legalised her immigration status with it in 2002. For these reasons, we did not consider UKVI should be asked to reimburse Mrs D's legal costs. We considered the £250 that UKVI had already offered was reasonable.

Putting it right

UKVI and Border Force both apologised to Mrs D for the faults we had identified in our report.