An investigation into UK Visas and Immigration’s handling of Windrush man’s status

Findings  

Mr V was told he had no status in the UK when he had indefinite leave 

54. Ms V has complained Immigration Enforcement wrongly sent letters via Capita to Mr V saying he had no status when the Home Office had granted him indefinite leave to enter the UK on 23 June 2015. She has also complained UKVI and Immigration Enforcement wrongly classified Mr V as having no status to remain in the UK. She says on 5 May 2016 Immigration Enforcement told him he would be deported when he had been granted indefinite leave to enter the UK. We will consider these complaints together. 

55. The first time we know the Home Office questioned Mr V’s status in the UK was on 21 May 2015 when Capita contacted him. At this time Capita were contracted by the Home Office to consider and conclude cases in the migration refusal pool (the term for cases where a person has been refused leave to remain but the Home Office lacks evidence that they have either left the country or been granted leave by another route)3. Mr V had not been refused leave, so we can see no obvious reason why he should have been included in these cases or why he should have been contacted. 

56. UKVI and Immigration Enforcement have apologised for Capita sending Mr V letters saying he was in the UK illegally. They provided two explanations. First, they said this happened because the letters are computer generated automatically if they hold no details of someone on their database (paragraph 38). Second, they said it was because the database was being updated at the time (paragraph 42). We have not seen evidence to substantiate either of these reasons.  

57. We know Mr V was recorded on the system because he had recently made an NTL application (which he subsequently withdrew so he could travel). This is visible on his Home Office record. Everyone now accepts with hindsight that Mr V always had indefinite leave in the UK. It follows that he should not have been targeted for immigration enforcement action and should not have had to go through everything he did. But it is harder to establish why this happened.
    
    The explanations provided for why Capita contacted him do not provide clarity and neither do the records. Why was Mr V ever included in the list of people for Capita to contact? If it was a simple mistake due to database issues, why was it not immediately put right? One reason the answers to these questions are not clear is the lack of an audit trail for the actions taken and the reasons for them. Mr V had indefinite leave but this was not recorded in his Home Office records, despite being stamped in his passports. 

58. There is a wider context here. The difficulties many members of the Windrush generation have faced in trying to prove their status in the UK are well known. In her ‘Windrush: Lessons Learnt Review’ Wendy Williams said although the 1971 Immigration Act entitled people who had arrived from Commonwealth countries before January 1973 (like Mr V) to a right of abode or leave to remain in the UK, many were given no documents to demonstrate this status and the government did not keep records. She describes this as the ‘trap set for the Windrush generation’. The Lessons Learnt Review is clear the difficulties the Windrush generation have experienced in demonstrating their status cannot be laid at their door – they had the right to be in the UK and the way they were treated was wrong. 

59. The Lessons Learnt Review says that from around 2014, and earlier, cases emerged of members of the Windrush generation losing their right to benefits, healthcare and driving licences, and access to their bank accounts and pensions. We know from the reporting of the Windrush scandal that some people in this situation wrongly received letters from Capita telling them they had no right to remain in the UK. 

60. In Mr V’s case, and for other people, the contact from Capita was the start of a lengthy struggle to prove their status in the UK. We cannot say exactly why Mr V was contacted. We do know this led to everything that followed: Immigration Enforcement’s decision to open a returns preparation case, their letter of 27 February 2016, and their decisions to put in place reporting restrictions and to put Mr V’s driving licence forward for revocation. These were serious consequences and we will consider the impact on Mr V of what happened in more detail later. 

61. The Ombudsman’s principles say decision making should take account of all relevant considerations and ignore irrelevant ones, balancing the evidence appropriately (paragraph 50). We have seen no good reason why Mr V was contacted in the first place. Also, his file showed he had recently made an NTL application, which suggested he did have indefinite leave (paragraph 46). Once he was contacted, Immigration Enforcement’s own records show he clearly told Capita he had been in the UK since 1962, had valid leave and had withdrawn his NTL application so that he could travel (paragraph 11). Yet the next action was to send him letters saying he was in the country illegally. UKVI and Immigration Enforcement have accepted this should not have happened. Despite a poor audit trail of what happened, we know enough to say the decisionmaking which led to Capita’s initial contact did not take into account all relevant considerations and ignore irrelevant ones – and neither did the subsequent decision to send Mr V letters telling him he was in the country illegally. We find Immigration Enforcement’s actions here amount to maladministration. 

62. The lack of clarity as to why Mr V was contacted in the way he was is also concerning. Our principles say that to be open and accountable public bodies should create and maintain reliable and usable records as evidence of their activities. We find Immigration Enforcement’s record keeping here amounts to maladministration - there is no clear audit trail as to why he was contacted. Beyond this, there is a wider record-keeping problem as Mr V’s status was not recorded on Home Office systems. We find this was maladministration because Mr V’s records should have been reliable and useable (paragraph 53). 

Missed opportunities 

63. We will now consider if there were opportunities to put these mistakes right. UKVI and Immigration Enforcement told us Immigration Enforcement sent the letter on 27 February 2016 to Mr V as no further documentation had been provided to validate his claim that he had an ILE stamp or had entered the UK as he described. They said they had to make further enquiries to validate his status in the UK. They said although Mr V had provided his original passports, both valid and expired, for the withdrawn NTL application, no copies or notes were made on Home Office systems to indicate that he had a valid ILE stamp because the case had not been progressed. 

64. However, as we have seen above, Mr V should never have been on the path to removal in the first place. There were missed opportunities to put things right. At the end of April or the beginning of May 2016 (paragraph 17) Mr V had given Immigration Enforcement his three passports including his passport containing an ILE stamp. His representative highlighted Mr V had provided his passports, including evidence of his indefinite leave, when he wrote to Immigration Enforcement on 18 May 2016. On 13 July 2016 Immigration Enforcement considered Mr V’s passports and saw his indefinite leave stamp. His representative provided more evidence on 21July 2016 when he sent Immigration Enforcement records from HMRC. 

65. Immigration Enforcement’s decision-making should have taken account of all relevant considerations. They should have taken the evidence provided by Mr V and his representative into account when they made decisions on his case. They did not do this. On 2 June 2016, whilst in possession of both Mr V’s passports and the 18 May 2016 letter from his representative, they made a decision to put Mr V’s driving licence forward for revocation. They maintained this decision on 15 June 2016, when the caseworker noted they had read the letter from Mr V’s representative stating he had been in the country for over 50 years and had indefinite leave. They wrongly said ‘no evidence to suggest this presented’ despite the fact that they were in possession of Mr V’s indefinite leave stamp, and his representative had clearly highlighted this (paragraph 18). On 21 July 2016 Mr V’s representative provided evidence from HMRC which showed Mr V had been working in the UK since 1962. This time, there is nothing to show this was considered at all. All these points represented opportunities for Immigration Enforcement’s decision-making to put things right by taking the relevant evidence into account properly. This did not happen, and we find this was maladministration. 

66. Separately, on 13 July 2016, Immigration Enforcement eventually checked Mr V’s passports and saw his indefinite leave stamp. The records show the caseworker felt they could not confirm the genuineness of the stamp and they sent Mr V’s passport to the fraud unit to be checked. We accept Immigration Enforcement need to be sure of the genuineness of the documents they rely on for their decisions. However, given everything which had happened in Mr V’s case up until this point, it is easy to be sceptical about the reasons why this decision was made. However, the records do not include any reason why doubt was cast over the genuineness of the stamp in Mr V’s passport, and we do not have enough information to say Immigration Enforcement acted with maladministration here. 

67. Ms V has also complained that when Mr V reported to Immigration Enforcement on 5 May 2016 he was told he would be deported. UKVI and Immigration Enforcement have said Mr V would not have been told he was being deported as this word is only used in criminal cases (deportation is different from administrative removal – you can potentially be deported if you are a foreign national and have completed a prison sentence for committing a crime).  

68. It is not possible to say now exactly what was said by the member of staff Mr V saw – the records just say he brought in his passports. However looking at the letter sent to him in February 2016, which talks of the intention to forcibly remove him from the country, of potential prosecution and imprisonment, that his life would become increasingly difficult and he could be banned from returning to the UK etc, whether or not the word deportation itself was used, Mr V was clearly told he would be forcibly removed from his home of more than five decades. As we have found above, this should never have happened.  

Mr V's No time limit and nationality applications in 2017 and 2018 

69. In looking at this complaint we consider that Mr V would have been in a different position if not for the failings identified above which wrongly set him on a path to removal. It is unlikely these applications would have been processed in the same way. However, we will consider whether there were further errors in the Home Office’s handling in relation to these applications.  

70. Looking first at the NTL application – what should have happened? The NTL guidance says a caseworker must obtain evidence an applicant has been granted indefinite leave. Evidence of this can include an indefinite leave endorsement, open date stamps after indefinite leave had been granted and records in databases and paper files showing indefinite leave has been granted. They also need to see photographic evidence confirming the applicant’s identity and evidence they have not lost their indefinite leave due to absences from the UK (paragraph 47). UKVI have told us Mr V did not submit evidence he had of his immigration status with his application. They said the caseworker made every effort to obtain this evidence, writing to Mr V’s representative three times. They said the evidence was finally provided after a phone call. We will consider whether this was necessary. 

71. Mr V had submitted his current passport and photos with the NTL application he made on 26 May 2017. This would have proved his identity, as required, and also contained an indefinite leave stamp from 23 June 2015. In addition to this, his Home Office records showed that on 13 September 2016 Immigration Enforcement had stopped enforcement action and cancelled Mr V’s reporting after accepting he had indefinite leave. Mr V could not have been outside the UK for more than two years after Immigration Enforcement accepted his indefinite leave. The time between 13 September 2016 and 26 May 2017 is obviously less than two years. So Mr V (and his Home Office records) had provided everything the guidance requires: evidence of indefinite leave, evidence of his identity and evidence he had not lost his indefinite leave due to absences. 

72. UKVI’s request for evidence beyond this – at one point they asked for evidence of his residence in the UK dating back to 1990 (paragraph 25) – went beyond what was required by their own guidance. Our principles say public bodies should follow their own policy and procedural guidance, whether published or internal. We find UKVI were acting outside their own process here and that this was maladministration.  

73.  When UKVI considered Mr V’s later application for British Citizenship, they did so under the Windrush Scheme. To apply under this scheme Mr V needed to be a Commonwealth citizen and to be settled in the UK before 1 January 1973. We can see from the notes that the second of these criteria was not immediately obvious to the caseworker considering Mr V’s application.  

74. We saw earlier that information provided to Immigration Enforcement about Mr V’s work history in the UK from 1962 onwards was not considered or recorded at the time. The recent NTL application he made had looked at evidence of his residence between March 2001 and 28 November 2017 when the application was granted. The caseworker considering his citizenship application therefore made the decision to write and request the information they needed, in line with their guidance. We appreciate that to Mr V and his representative this would have appeared as yet another unnecessary hurdle to overcome after so much had gone wrong. However, looking at the actions of UKVI in relation to this application in isolation, we do not think their actions here were so poor as to be maladministration. 

Ms V’s complaint about UKVI’s complaint handling 

75. UKVI and Immigration Enforcement accept their complaint handling did not follow their own complaint handling guidance. This says they should have responded to the complaint in 20 days. If this was not going to be possible they should have told Mr V’s representative this and then provided updates until the case was closed. In reality, Mr V did not receive a response to his complaint until 8 May 2019 – nearly six months later. UKVI and Immigration Enforcement did not provide updates or explain why this delay happened.  They sought responses to the complaint from various teams in December 2018, but it then seems to have been forgotten. Certainly, there is no record of any action. Even after Mr V’s representative made a second complaint specifically about the delay in February 2019 there was still a long wait for any response, with no updates provided. Clearly this was not in line with UKVI and Immigration Enforcement’s own complaint management guidance and we find this was maladministration. 

76. As well as the long and unexplained delay, we cannot say UKVI and Immigration Enforcement had attempted to ‘investigate fully and respond to all the issues raised’ in line with their complaint handling guidance (paragraph 49). By the time of the complaint responses in May and then June 2019, the Windrush scandal was well documented – in fact the Windrush Taskforce had been set up to address the problem. Yet there was no acknowledgement in their responses of the profound effect on Mr V of what had happened, and no clear explanations as to why a man who had come to the UK in 1962 and spent more than five decades living and working in this country with indefinite leave, was told he was going to be forcibly removed.  

77. As we have seen above, the failings we have identified in the handling of Mr V’s case echo many of the wider systemic problems highlighted in the Lessons Learnt Review: the wrongful targeting of older people who had arrived in the UK from Commonwealth countries decades ago, a lack of proper records, a culture of disbelief when dealing with applications, and the protracted difficulties experienced by those trying to prove their status.  

78. Our principles say public bodies should acknowledge mistakes, apologise, explain what went wrong and put things right quickly and effectively (paragraph 52). UKVI’s own complaint handling guidance says they should endeavour to investigate fully and respond to all the issues raised in a complaint. Given the seriousness of Mr V’s complaint and what happened in his case we find that the response to his complaint falls far below these standards and amounts to maladministration. The extent of the Windrush Scandal became clear in 201718 and Mr V’s complaint represented an opportunity for the Home Office to address the impact of very serious failings. The fact they did not join the dots to look at Mr V’s complaint in the context of the Windrush Scandal or seek to acknowledge the impact of what had happened, even while upholding his complaint, is concerning. 

Injustice  

79. We are upholding the complaints Ms V has brought to us on behalf of herself and her father, and will now look at the impact of what happened. We will look at how what happened affected Mr V and also the impact this had on Ms V.  

80. Before he was told he had to leave the country, Mr V’s life was that of a respected father and grandfather. A former HGV driver, Mr V was retired and able to spend time with the family who were so important to him. But everything about his life was about to be turned on its head.  

81. For Mr V, being told he had to leave the UK after five decades spent here must have been utterly devastating. It is hard to imagine the true impact of a letter such as the one sent to him on 27 February 2016 (paragraph 15). He was stripped of his driving licence, required to report monthly and plunged into deep uncertainty about his life in the UK.  

82. Ms V has explained the profound effect on her father. She described him as becoming depressed, anxious and withdrawn. When his driving licence was removed she said this continued further and he confined himself to the area around his house. The subsequent difficulties with the NTL, his naturalisation applications and the complaint process (which ultimately meant he did not get any closure about what had happened before he died) only added to this. It is particularly sad the last years of Mr V’s life were characterised by a distressing struggle to validate his right to remain in a country he had the right to live in. The injustice to him caused by the maladministration we have identified, was extremely serious. 

83. Ms V told us watching her Dad withdraw from life was incredibly upsetting for her. Mr V had been an HGV driver and he would drive the family everywhere but he started saying he would not come on trips. She said it was deeply upsetting to witness the rapid decline of her father.  

84. Ms V said before her father was told he would have to leave the country he would regularly meet up with his grandsons – her sons - and take them to town. He was proud of their sporting achievements and would go to their competitions. He was her support network and would help them with homework and take them for days out. She said he no longer wanted to be around the family and did not want to see his grandchildren. She said her sons had looked up to him as a role model and were incredibly close to their grandfather. His withdrawal affected them emotionally as they could not understand why he had stopped visiting and they lost their last years with their Grandad. Ms V said this was reflected in her son’s behaviour which was extremely stressful for her. She said it also affected her family in practical ways as Mr V had driven them around and helped with their lives – then the roles reversed.  

85. Ms V told us her young daughter’s relationship with her grandfather was cut short and she missed out on the opportunity to get to know him properly. Ms V has described the emotional turmoil she experienced as a result of these events. She told us she had difficulty sleeping and suffered from low mood and anxiety over a long period as she battled to hold everything together and reassure both her children and her father, despite being scared herself that her father would be removed from their lives. She said it was incredibly stressful to try and explain to her children what was happening when she did not understand herself why her father was being treated in this way. 

86. The huge, detrimental effect UKVI and Immigration Enforcement’s actions had on Mr V is clear. This went beyond his own circumstances to deeply affect his daughter. Ms V has described how she and her children felt their father and grandfather had been stolen from them in the last years of his life. This has led to a serious, lasting and on-going emotional impact for Ms V. This began in 2015-2016 as she witnessed her father withdraw from his life and family relationships, profoundly affecting her and her children, and has continued to this day, deeply impacting her last years with her father and her on-going memories of him.