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Thomas
Thomas, Lawyer
Category: UK Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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I am a Canadian who has been working in the uk for 5 years

Customer Question

I am a Canadian who has been working in the uk for 5 years and who is married to an Englishman and have a British-born son. Processing delays on my settlement application and xtension of work visa mean a job offer I am holding may be rescinded and I haven't been able to work for over a month while the UKBA adds me to their "system" so that my employer can check I have made a valid application. I have received a reference number, and they have taken my payment, so I am on some sort of computer system, but not the one they require employers to use. While no delays are cited on their web site, they have told me this could take up to 12 weeks to add me to the right "system", which is 25% of my salary lost (about 8k gross)...assuming my prospective employer will even wait that long. I assume others are in the same situation. I have written a complaint letter, and they have said they will take up to 20 working days getting back to me (8 to go.) but I have no reason to believe they will hold themselves to this service level agreement as they also promised they would return my passport to me in a 20 day window (I need it for a medical)...it was requested on sept 4 and still has not made its way to me. The woman at UKBA who looked into this for me said there was nothing she could do but request it again for me. I have also complained to my mp, who said he would look into it for me, but nothing. My life is being held hostage by UKBA incompetence, and I want compensation. (I could not go to a public enquiry office to process my application in the first instance because my form type could not be processed online and information about this was both incorrect and misleading.) can I instigate proceedings against the UKBA for this loss of income and mental distress? (I am considered disabled due to stress.)
Submitted: 1 year ago.
Category: UK Law
Expert:  Thomas replied 1 year ago.
Hi,

What date did you submit your application please?

Tom
Customer: replied 1 year ago.
16 August. My ancestry visa expired 20 aug and I have a letter confirming my application dated 20 Aug. payment was also processed that day
Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

It’s not enough for you to sue to the UKBA at the present time. The UKBA is extremely overstretched and waiting times of this length are completely common in my experience, even with application drafted by immigration solicitors (like me).

You will see from the following link that the waiting times for settlement applications are (95%) within 6 months. This is obviously a long way short of this and I would prepare yourself for it to drag on a bit (sorry to say) even if your application is perfectly drafted.

In order to sue the UKBA you would have to prove negligence, which you could do if (for example) they lost your application since this would be a breach of a duty of care. Processing your application within the time stated is plainly not negligence.

Even if you were able to prove negligence you would also have to prove direct financial loss. The loss of the job is potentially claimable but it would certainly be dispute on the grounds that it was too remote.

It’s massively frustrating and you have my sympathy of course, but there is no claim here against the UKBA at the present time I’m afraid and it’s better that you know this

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

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Kind regards,


Tom
Customer: replied 1 year ago.
I'm not talking about processing my settlement application and making a decision on my status, I am talking about inputting my details on a computer system as having APPLIED. That is all that is required for me to be able to work, surely you know this if you give immigration advice? If you are here on an ancestry or work visa, as long as you apply before it expires (ukba own advice is that you not do so before 20 days before your current visa expires, your right to work is then implied until they do make a decision ie 6 months. However, in the meantime, for employers to show due diligence in checking your legal status, the ukba require them to use the "employer checking service" - but the ukba, despite having issued me with a reference number and taken my money, so I must be on some sort of computer system, cannot confirm my status as I am not on "the system"...this part of the process alone appears to be taking up to 12 weeks (or more, who knows) BEFORE IT EVEN GOES TO A CASEWORKER to look at. The letter that they sent me confirming my application and giving me a reference number (no delays putting me on the system which processes payment!) is not worth the papEr it's printed on! This sort of delay is unacceptable as it means my right to work on the basis of submitting an application has been negated. In addition, the ukba can't even seem to stick to the processing promises it is making. I am going to file an FOI request to see how many people are affected by this administrative incompetence. And what sort of defence is "the ukba is over stretched"?? When it's impacting people's human rights (I can't leave the country or do anything while they simply sit on my paperwork!) I don't care if the decision process takes 6 months, I just want my right to work back, which I don't have because they can't be bothered to input my application into a computer system even though I have paid them nearly £1000 to do this as a bare minimum? Obviously I am not going to take them to court until the full extent of damages is known (there is also a cost to my employer of not having me on board, which has additional financial repercussions) but I want to know...is it possible, or is there a precedent for a private individual taking a claims against ukba to court or winning??
Expert:  Thomas replied 1 year ago.
It's a fact that the UKBA are overstretched in all departments and yes, I appreciate that your right to work subsists once your application is in process but the fact is that the delays aren't limited to the post-logging stage of application. It's all stages, including the one you are at now.

You may consider their service standards to be unsatisfactory and I would be inclined to agree, but when you are in the UK as a visa national you are at the mercy of the system that is for which their is a greater demand than they are able to deliver. It's unfair, I agree but I can't in all honesty say that you have an appreciable chance of suing them and that is the question that you asked.

They have a duty of care because they have your application and your passport. This means that there is a potential basis for a claim in negligence and there are persons who have sued the UKBA on this premise but it's almost always in the case of lost documentation.

As a side note, I would not put too much stock in what they say to you on the telephone because the level of information they have access to and with the level of authority held by most of the caseworkers not what it should be in a perfect world.

Tom
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6461
Experience: BA (Hons), PgDip, Practising Solicitor
Thomas and other UK Law Specialists are ready to help you
Customer: replied 1 year ago.
I think we have a duty to make organisations accountable, and I think that "unfair" with significant personal and economy-wide repercussions (assuming others are going through this as well) is something that should be challenged, and that's what the courts are for, isn't it? Its simply not good enough. Why wont my letter serve as proof, or why cant they change systems or advice so that i can apply 3-6 months before visa expiry in that case? There are reasonable adjustments they can make in the face of pressure without contravening people's rights. Also, to say that a representative of the ukba shouldnt be taken at their word, when these are the only people we ever get o speak with (after hour long waits on the phone) is not really acceptable either. Who can be trusted then? I don't see that I have any other recourse, or can you suggest one?This is a much more significant loss than loss of documents. And I am significantly more qualified than the next nearest candidate from the uk - my employer (a university) can vouch for that. Can you tell me what court system I would go through as I am unfamiliar with uk law? It would be civil, but would the application be made through small claims (if the potential award is near to £10k)? How do I file when the time comes?
Expert:  Thomas replied 1 year ago.
I take the point in that it's worthwhile to challenge organisation where they abuse their powers, it's just that the UKBA are not abusing their powers; they are simply slow in exercising them.

The reason that they are also slow in exercising them is also linked the economy, they cannot afford to expand greatly.

Your recourse is to persist with your complaint. If they matter persists for another month I would threaten a negligence action. I expect it would be the Queens Bench Division of the High Court.

Tom

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