UK Visas and Immigration

4. Mr Z complains on behalf of his wife, Mrs Z, that UKVI incorrectly processed her application to change her tier 2 visa to a spouse visa in September 2019 as it: • Did not decide within 24 hours, although he had paid an extra £800 for the priority service.

• Requested irrelevant bank statements and did not advise them on how to meet and exemplify the financial requirements for the visa.

• Did not send the bundle of evidence to the first-tier tribunal within the required six weeks.

5. Mr Z says he and Mrs Z did not receive the priority service he paid for. He says UKVI’s decision to request incorrect information led to it rejecting his appeal which meant they had to unnecessarily appeal to the first-tier tribunal. He says this significantly delayed obtaining a decision and contributed to them incurring additional cost. He also says UKVI’s failure to send the bundle of evidence meant he missed scheduled hearings and delayed the appeals process by 4 weeks. He says UKVI’s failings have caused unnecessary stress, frustration, and anxiety.

6. Mr Z is seeking for UKVI to refund the £800 fee for the 24-hour priority service. Mr Z would likely UKVI to refund the £80 for the cost of the appeal. Mr Z would like financial remedy to recognise the delays UKVI’s failures have caused, as well as financial remedy to recognise the frustration, anxiety and stress events have caused. He would like UKVI to acknowledge failings and provide an apology.

Administrative background

7. Part of UKVI’s role is to decide on applications for permission to visit and/or live in the UK (commonly known as visa applications). This includes applications for permission to live in the country as a spouse or partner or someone who is already entitled to live here.

8. Someone applying for permission to live in the UK as a partner of a UK citizen needs to meet certain eligibility criteria. These include being able to show they can support themselves financially. This means they must show that they, and their partner, have a combined set minimum annual income. At the time of these events, that amount was £18,600.

9. If the applicant’s income is not at this level, they must show that they, or their partner, have savings which would make up the difference. For example, if the applicant has no regular income, they, or their partner, must show evidence they have savings of at least £62,500.

10. UKVI’s website (https://www.gov.uk/uk-family-visa/proof-income) provides a brief outline to the minimum income requirements. It also provides links to more detailed guidance. This guidance states that UKVI decision-makers cannot exercise any discretion or flexibility about the level of the financial requirement. The onus is on the applicant to demonstrate the financial requirement is met in their case. UKVI will generally make further enquiries or request further information about this.

11. UKVI’s website gives details of the time it usually takes to consider applications (known as its service standards). For customers applying to remain on a temporary basis, including as spouses, UKVI aim to decide within 8 weeks of receiving the completed application (including biometric information).

12. The applicant may choose to pay for a quicker decision if they wish. In this case, Mr Z chose UKVI’s ‘super priority service’ which costs £800. If a customer pays for this service, UKVI aims to decide on the application by the end of the next working day. However, this may take longer if UKVI needs to ask the applicant for more information. In these circumstances, UKVI says it will tell the applicant how and when to provide this information.

13. UKVI publishes guidance on how it deals with requests for fee refunds. UKVI will only refund an application fee in certain circumstances, for example, where UKVI has charged the incorrect fee. The guidance refers specifically to UKVI’s super priority service. It says UKVI will not refund a fee in cases where it has had to ask the applicant for more information and has been unable to meet the service standard as a result.

14. If UKVI refuse an application, the applicant may be able to appeal that decision to an Appeal Tribunal. In that case, HM Courts and Tribunal Service (HMCTS) will arrange for a hearing to take place and will tell the applicant, and UKVI, the date and time of that hearing. Before the hearing takes place, both the applicant and UKVI should share with the Tribunal copies of any documents it intends to rely on during the hearing. These documents are known as the appeal bundle.

15. We understand that UKVI has a specialist team which deals with appeals. It has told us that, at the time of these events, the specialist team would not begin to prepare the bundle until it was notified of the hearing date.

Background to the complaint

16. Mr Z is a British citizen, and his wife is a Canadian citizen. In 2018, they had both returned to the UK following a period working in Australia. Mr Z’s wife needed a visa to stay in the UK.

17. Mrs Z made her application on Thursday 5 September 2019, submitting all biometrics by the following day. Mr Z paid the super priority fee for this application. As part of his application, Mr Z gave UKVI copies of statements from 2 of his bank accounts.

18. On Monday 9 September 2019, UKVI contacted Mr Z and said one of the bank statements was unclear. It asked him for a clearer copy which he then provided.

19. UKVI noted that the two bank accounts held a combined total of £59,000. Because this was below the financial requirement limit, UKVI rejected Mrs Z’s visa application.

20. In September 2019, HMCTS told UKVI Mr Z had appealed the decision but, at that time, there was no date set for the hearing. HMCTS contacted UKVI again on 7 October 2019 and said the hearing was due to take place on the 30th of that month. For reasons that are unclear, although UKVI received this information, it did not pass it on to its specialist appeals team until 24 October 2019.

21. UKVI has told us that, at the time, the team had a significant amount of work in progress. This meant it was unable to prepare the bundle in time for the hearing and the hearing was postponed as a result.

22. On 7 November 2019, HMCTS told UKVI the hearing had been re-scheduled. We understand that UKVI again did not begin preparing the bundle and instead waited for confirmation of the hearing date.

23. UKVI notified its specialist team on 19 November 2019 that the hearing was scheduled for 21 November 2019. Again, the team was unable to produce the bundle in time and the hearing was delayed until 25 November 2019.

24. The Tribunal did not uphold Mr Z’s appeal, so he appealed that decision to a higher court. While preparing for this, UKVI reviewed Mr Z’s appeal submission and noted he had produced further information about his finances, including details of bank accounts he had not told UKVI about when his wife first applied for a visa. This information showed that Mr Z met the minimum income requirements so UKVI granted Mrs Z’s application.

25. Mr Z complained to UKVI. He said UKVI had not adequately informed him and his wife of the financial requirements for their application. He said UKVI should have asked him for evidence of all his financial circumstances and not just asked for a copy of one bank statement. He said that, had it done so, he would have been able to show he and his met the relevant criteria for UKVI to grant her application. Mr Z complained that UKVI had asked for irrelevant information and had done so to delay his application. He asked UKVI to refund the fee he had paid for his super priority application.

26. Mr Z also complained about UKVI’s failure to provide an evidence bundle to the Tribunal on time. He said this had delayed his appeal unnecessarily.

27. UKVI did not uphold his complaint. It acknowledged it may have been better if it had asked for bank statements for all Mr Z’s accounts for six-months prior to the date of the application. However, it said the onus is on the applicant to demonstrate they meet the criteria and Mr Z’s partner had not done so when she made her original application. It said Mr Z had only given full details of his financial circumstances during the appeal process.

28. UKVI explained that its policy at the time meant it only began preparing bundles once its specialist team knew the hearing date. In this case, the team did not know that date until it was too late. UKVI added that it had since amended its process and now prepares the bundle as soon as it knows an appeal has been lodged.

Failure to prioritise application

31. We can understand Mr Z’s unhappiness at these events. He had paid a considerable sum of money for a service he feels he did not receive. We can also understand why he would want UKVI to give this money back to him.

32. Under our Principles of Good Administration – being customer focussed, we expect organisations to deal with people within any published time limits. If the organisation is unable to meet these time limits, they should tell the customer why this is.

33. In this case, UKVI aim to make decisions on super priority applications within 24 hours, However, as it makes clear in its published guidance, it may take longer to do so if it needs to ask the applicant for more information.

34. The evidence we have seen shows that UKVI needed to ask Mr Z for more information about his financial circumstances. This request for further information meant UKVI could not process the application within its service standards which, as it makes clear in its guidance, meant he was not entitled to a refund.

35. We know Mr Z feels the requested information was irrelevant but, we can see this was not the case. The onus was on Mr and Mrs Z to show evidence of their finances and, unfortunately, they had not done so. This meant UKVI had no choice but to ask for more information about this.

36. We know Mr Z thinks UKVI should have asked him for something different, but this would have made no difference to his request for a refund. Even if UKVI had asked Mr Z for all his financial records, rather than asking for a copy of one bank statement, this would still have been a request for more information.

37. In our view, UKVI acted in line with both our Principles and its own fee refund guidance. We have so far seen no evidence this was a failing.

Failure to request evidence of £62,500

38. We have no doubt that, if UKVI had asked Mr Z for evidence of his full financial situation, he would have been able to provide it. This would have meant UKVI would not have rejected his wife’s application. Whilst we can understand Mr Z’s frustration, we have seen nothing to suggest UKVI did anything wrong here.

39. Under our Principles of Good Administration – being customer focussed, we expect organisations to ensure their customers are clear about their own responsibilities. UKVI’s guidance made clear that, for Mrs Z’s application to be successful, she and her husband needed to show evidence their income was at the required level. This is in line with our Principles.

40. Unfortunately, Mr and Mrs Z did not initially provide the necessary evidence and instead submitted documents which suggested their income was below the relevant amount. That is why UKVI rejected the application.

41. We have noted UKVI’s comment that it would have been better if it had asked for more evidence at this point. However, for us to say an organisation has acted unreasonably, we need to consider what it should have done, not what it could have done.

42. We have seen nothing to suggest that, when Mrs Z applied for her visa, UKVI should have known she and her husband had access to more income than they had declared. The couple had only told UKVI about two bank accounts and we have so far seen nothing to suggest UKVI should have suspected they may have others. As a result, UKVI had no real reason to ask about any other accounts or sources of income.

43. We should also say that, when UKVI asked Mr Z for copies of his bank statement, it was not looking for information about further accounts. Instead it was asking him to clarify information he had already given. We would not have expected UKVI to do anything more in those circumstances.

44. Based on the evidence, we have found no failings in this part of Mr Z’s complaint.

Court bundle

45. The evidence shows UKVI twice did not prepare a court bundle in time for an appeal hearing. We have looked carefully at why this happened.

46. From what we have seen, what happened is partly due to the process UKVI had in place in time. Under our Principles of Good Administration - getting it right – we expect organisations to follow their own procedural guidance and we would not usually criticise an organisation for doing so. However, under our Principles of Good Administration – acting fairly and proportionately, we expect those procedures to be fair and not disadvantage a service user.

47. UKVI has told us that, at the time of these events, it would only begin preparing the bundle once it knew the date of the hearing. It is not clear to us why UKVI took this approach. UKVI should have known from HMCTS’ initial notification that a court bundle would likely be needed. We can see no reason why HMCTS could not have begun this work at that point.

48. We have noted UKVI’s comment that, at the time, it had a large amount of work in progress. Given the obvious importance of being ready for a hearing, that seems to us to be even more reason to begin this work as early possible. Under our Principles of Good Administration – getting it right – we expect organisations to provide effective services. We are not satisfied that UKVI’s procedure at the time met this expectation. Although we are pleased that UKVI has now changed its policy, we still consider this to be a failing.

49. We should add that UKVI’s policy itself does not appear to be the only reason it did not prepare the bundle on time. The evidence we have seen shows that HMCTS told UKVI the October 2019 hearing date at least two weeks before UKVI passed this information to its specialist team (and three weeks before the hearing was due to take place).

50. We have seen evidence that, although the specialist team also missed the original November hearing date, it was able to provide the bundle for the re-arranged hearing which took place four days later. This suggests that, if UKVI had notified its specialist team more quickly, it would still have been able to prepare the bundle in time for the October hearing.

51. In our view, UKVI’s failure to notify its specialist team on time contributed to its overall failure to provide an effective service in this instance.

52. We have looked at the impact this error had on Mr and Mrs Z. We accept that, strictly speaking, preparation of the bundle was a duty UKVI owed to the Tribunal rather than to the Z’s. However, this failure led directly to the hearing being postponed which would have affected the couple. It is important to note that the hearing was designed to determine whether the couple would be allowed to live together in the UK as they wished to do. It is easy to see why the outcome was so important to them and why any delay in that outcome would have been a source of frustration.

53. Under our Principles, we expect organisations to try to put right what has gone wrong. We also expect organisations to recognise the impact their errors have had on their service users. We are not satisfied UKVI has done do in this case. That is why, we recommend UKVI take steps to put things right for Mr and Mrs Z.

1. Based on the evidence we have seen; our decision is to partly uphold this complaint. We found that, at the time of these events, the process UK Visas & Immigration (UKVI) had in place for preparing court documents was flawed. This led to an appeal hearing being unnecessarily delayed which caused Mr and Mrs Z distress and inconvenience.

2. We recognise that, since these events, UKVI has made changes to its procedures. Whilst we welcome this, we are not satisfied it has done enough put right the impact its error had on Mr and Mrs Z. For that reason, we will likely be recommending UKVI pays £150 to recognise the delays and distress it has caused.

3. We are satisfied UKVI processed Mrs Z’s visa application appropriately. Although it did not decide on the application as quickly as Mrs Z may have expected, it had good reason for this. We are also satisfied it clearly explained the reasons for this and had made her aware already of this possibility. We have seen nothing to suggest it should have requested additional information from Mr and Mrs Z.