This is the third and final instalment in our series about Home Office delays. Over the last few days we have written about the types of delays we are seeing and how those delays impact our clients.
Today we are tackling the biggest question we are asked by clients experiencing these delays, which is “What can I do to get my decision now?” The unfortunate answer is that there is nothing definitive that you can do to receive an answer quicker. The best tactic is to take multiple different approaches to increase pressure on the Home Office.
Below are strategies we use with our existing clients and resources to help you take this action too.
The first step is to ‘escalate’ your case with the Home Office. You can escalate your case once the published service standards have passed by calling the Home Office helpline. An escalation doesn’t provide a huge amount of assistance but doing this now will later help demonstrate that you took steps to resolve the delay before proceeding to further action.
The government has a page that allows you to narrow down which team you need to speak with here.
We often get requests from applicants for assistance with escalating a case with the Home Office. However, the Home Office will only discuss your case with those named on the application. This means if you have not named a specific legal representative on the application, the Home Office will not talk to that person. If you have not instructed a lawyer before submitting your application, they may still be able to help you submit a formal complaint as set out below.
Contact your MP
Your local MP is your representative in parliament. Regardless of whether or not you are a British citizen they have a duty to represent your interests. Contacting your MP to explain the delay can make a big difference, particularly if your representative is known for being engaged with local issues.
MP’s have more direct access to ministers and officials with influence over the operation of the Home Office. It is important to note that your MP will not be able to influence the outcome of your case but can help put valuable pressure (whether publicly or privately) on officials to ensure a prompt decision is made.
If you do not know who your MP is, you can use the government tool found here to identify them and access their contact details.
If you do not live in the UK and are applying for entry clearance on a route that requires sponsorship, you can ask your sponsor to contact their MP on your behalf.
Parliamentary guidance recommends that if you do not receive a response from your MP within two weeks, you should follow up with a phone call.
A formal complaint may be appropriate once 6 months have passed. The process for submitting a complaint is free and relatively straightforward. You can find the Home Office complaint procedure here.
The service standards for complaints is to respond to you within 20 working days. However, if you are reading this article it will come as no surprise that the Home Office rarely comply with this standard. Due to high waiting times for visas, this has led to an even higher number of complaints that an understaffed department is unable to process effectively.
A complaint alone is unlikely to result in a decision, however a complaint combined with other methods in this article can be enough to shift you application and get you a decision.
The Office of the Independent Examiner of Complaints (OIEC)
OIEC is a new, independent, department established in October 2022 to oversee the Home Office complaints procedure. The OIEC will contact you within five working days to explain what aspects of your complaint they can assist with, or to explain why they cannot assist if that is the case.
The catch here is that the OIEC will only consider complaints that have received a final response from the Home Office. It would therefore appear that they won’t consider complaints that have not yet received a response.
Given the volume of complaints currently facing the Home Office, and the regular reports of individuals failing to receive a response, it is unclear how this will work in practice as the new body begins hearing cases.
If you have received a final response to your complaint but it has not resolved your delay in receiving a decision, you can contact the OIEC by following the procedure set out here.
Judicial review is a remedy available for individuals that allows a court to review the ‘executive’ actions of the government. In practice this means reviewing the actions of government bodies that are not subject to direct democratic accountability. The Home Office is one such government body.
Judicial review can be applied for on the grounds of significant delays. The first step is to issue a ‘Pre-Action Protocol’ (PAP) letter. A PAP letter gives notice to the Home Office that you intend to take legal action and provides an opportunity to engage the Home Office to resolve the delay outside of court.
It is important that a PAP letter is prepared so that it complies with the requirements of the Pre-action Protocol for Judicial Review. Failure to properly follow this protocol could impact on whether you are able to claim or have to pay additional costs if a judicial review is ultimately lodged. Once you have received a response to the PAP letter, you will need to make an informed decision about whether or not to lodge an application for permission for judicial review with the court.
In most delay cases the earliest opportunity to submit such a letter is once the Home Office have failed to respond to your complaint within the 20 working day service standards.
In practice doing so that early is inadvisable. For a judicial review to be successful, the delay must be extreme, or have had an extreme impact on your life to the extent that the delay has caused a breach of your human rights. There is limited firm precedent for successful judicial review cases on these grounds. Where individuals have been successful, the length of delays have ranged from two years to 10 years among other factors.
Judicial review carry costs consequences meaning an unsuccessful judicial review claim can result in you paying for the Home Office’s legal costs in addition to your own. Whilst judicial reviews can be an effective way to achieve a positive outcome, due to the financial risks that can be involved you should seek legal advice before sending a pre-action protocol letter.