The Curious Case of the Missing Service Standards for "Not Straightforward" UK Out-of-Country Settlement Visa Applications • Peter Ellis Jones

Not so Straightforward

In April this year my girlfriend submitted a visa application to the UK Home Office so she can live with me under rules which allow a partner of two or more years to stay in the UK. The Home Office’s “service standard” for this kind of visa is 12 weeks or 60 working days, which they aim to meet at least 95% of the time.

Exactly 60 working days after submitting the visa, we received the following from the UK Visas & Immigration department via email:

… Unfortunately, the processing of your application has not been straightforward and we will be unable to decide your application within our customer service targets. We are continuing to work on your application and aim to make a decision as soon as possible. …

Googling “not straightforward UK visas”, I learned that not straightforward is an official status for visa applications, leading me down the rabbit hole I am about to describe. Worryingly, I found many forum posts suggesting that applications can get stuck in this state for months or even years, and media articles supporting this (though the media’s focus is generally on asylum claims rather than settlement visas):

On Christmas Day 2017, The Guardian published an article based on the testimony of two whistleblowers stating:

A source from the UK Visa and Immigration Unit (UKVI) has alleged that caseworkers have been ordered to kick applications for spousal visas “into the long grass” because they can make more money for the directorate by processing student visas. Spousal visas, also known as settlement visas, cost more than student visas but take much longer to process.

The source also claims visa applications are routinely labelled “complex” or ”non-straightforward” by staff – a term which excuses the UKVI from adhering to their standard processing times – it is, the source claimed, “just a euphemism for ‘there’s more profitable stuff we could be doing’”. Paying hundreds of pounds for priority services to try to avoid delays on decisions is a “waste of time”, they warned applicants.

The next day the Home Office responded with:

… Complex and non-straightforward cases have defined definitions which we set out on the website and as part of Home Office transparency data. Where applications are delayed, customers are informed. …

Every quarter the Home Office’s Visas & Immigration department publishes a transparency report for their international operations. In each report there are different sections for different visa types. For out-of-country settlement and non-settlement visa applications the Home Office publishes the following data: (in this case for 2018Q2, headings summarised).

Service Standards	Category	Total	Non straightforward	Straightforward	Straightforward apps. completed within Service Standard
3 weeks (15 working days)	Non-Settlement	1,084,041	41,655	1,042,386	1,029,636
12 weeks (60 working days)	Settlement	15,298	3,142	12,156	11,788

On the face of it this looks pretty good — 98% of all straightforward visa applications were processed within the service standard which is 60 working days for settlement and 15 working days for non-settlement visas. This is a great stat for the Home Office, but you’ll notice that statistics on application processing times for not straightforward applications are conspicuously missing. And it doesn’t look good if we focus only on settlement (AKA spousal) visas.

Here’s a chart showing the number of settlement visa applications per quarter since 2016Q1 and the percentage classified as not straightforward, using data from the Home Office’s transparency reports:

Between January 2016 and June 2018, 24,030 families had their settlement visas categorised as not straightforward. The Home Office holds onto the applicant’s passport while processing, meaning families often can’t see each other during this time (this was certainly the case for my girlfriend and I). Since these applications are subject to no service standards and seemingly no oversight, I was worried that the Home Office might confiscate my girlfriend’s passport indefinitely — greatly limiting our ability to see each other.

You’ll Never Take my Freedom (of Information Act request)

Frustrated at the lack of data and eager to get a better idea of likely processing time for our not straightforward application, I submitted a Freedom of Information Act (FOI) request to the Home Office on the 6th of August 2018.

Part one is the meat of the request — I was hoping to get some real data on not straightforward applications to get a better idea about the progress of my girlfriend’s application. Parts two and three were more exploratory, looking at the “straightforward/not-straightforward” categorisation process to see if anything stood out as particularly relevant.

The law states that government departments must respond to FOI requests within 20 working days (you can probably guess where this is going…). On the 6th of September 2018 — exactly one day after the FOI request deadline — I received the following in an email from the Home Office UKVI’s optimistically-named Customer Performance and Improvement department:

I am sorry for the delay in providing a response to your FOI request of 6 August. We are actively considering your request and as soon as we have obtained the relevant information, a response will be sent to you.

The Cabinet Office publishes Quarterly reports with FOI statistics for each department. In 2018Q1, the Home Office received 1,053 FOI requests. 84% of these were processed within the 20 day target. 5% were late with permitted extensions such as complexity or to decide if the information should be made public. The remaining 11% were just late and therefore in breach of the Freedom of Information Act. Unfortunately, just like statistics for “not straightforward” visa applications, the quarterly reports contained no data about response times for late FOI requests. In terms of outcomes: 70% were considered “resolvable”, 33% of these were granted at least partially, and 27% were granted in full. A friend of mine who works for a UK immigration charity cautioned me not to get my hopes up.

After two follow-up emails to the Home Office and a complaint to the Information Commissioner’s Office, I finally received a the following response on the 16th of October 2018, 51 working days after the initial request:

Results (Part One)

The Home Office mostly granted part one of my FOI request, limiting the response based on FOI section 36(2)(c).

Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act … (c). would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

This seems pretty ambiguous, but the FOI response justifies use of section 36(2)(c) as follows:

The Department publishes migration statistics quarterly and intends to publish migration statistics for the third quarter of 2018 later this year. Although the exact breakdown of the information requested will not be published, it will form part of the overall figures. Premature release of the subset of data requested could form part of a series of requests which together could build up a picture of the overall data due to be published. Although it is accepted that you may not necessarily be interested in making subsequent requests, information released to one person under the FOI Act is, in effect, released to the public at large. This would provide an opportunity for others to submit additional requests ahead of the planned publication date in order to obtain the information prematurely.

Premature disclosure of statistics without adhering to established pre-publication procedures (which include internal consultation about the final statistics being published) would undermine the Department’s ability to use its staff resources effectively in a planned way, so that reasonable publication timetables are not affected.

It took me a while to wrap my head around the argument but it seems that the Home Office is saying that:

This data is going to form part of a quarterly report to be released in 2018Q3
The public could ask for this data via FOI in order to get the report early
The Home Office would have to collect this data multiple times: for the FOI requests as well as for the quarterly reports
This would take a bit more time and therefore prejudice the effective conduct of public affairs

This seems disingenuous as I purposefully asked for statistics that were missing from the quarterly transparency reports. However the effect of the use of the exemption is that the Home Office limited my data to 2016Q1-2018Q2 rather than to 2016Q1-present, which is not a big deal. From the Cabinet Office’s quarterly reports on FOI requests, it seems the Home Office used 36(2)(c) exemptions 21 times in 2018Q2 as part of resolving 666 FOI requests — so their use of this exemption is likely not egregious.

Here is the data that the Home Office provided for part one of my request:

One immediate issue with the data is that:

Figures are rounded (except the Averages in Table 4) to the nearest 5 (’-’ = 0, ‘*’ = 1 or 2).

I’m guessing this is based on arguments around the anonymisation of data, although no such argument was presented in the FOI response. The value “1 or 2” is hard to work with so I will substitute the value 1 for these, giving the benefit of the doubt to the Home Office.

How many not straightforward visas are processed in 12 weeks? The following chart shows the number of not straightforward applications along with the percentage that are processed within the service standard:

Out of 20,888 not straightforward applications received between 2016Q1 and 2018Q1, only 12,775 or 61% were resolved within 12 week service standard. No wonder the Home Office does not publish these statistics! What’s the average wait time if you are one of the unlucky many whose applications are categorised as not straightforward? (Table 4 in the response).

Application Date	Average wait in days
2016Q1	72.8
2016Q2	78.7
2016Q3	78.9
2016Q4	87.9
2017Q1	118.3
2017Q2	98.2
2017Q3	69.7
2017Q4	73.9
2018Q1	52.9
2018Q2	34.0

On average you can expect to wait about 10-17 weeks (the figures from 2018 will be skewed by the fact that many applications are still pending) for a not straightforward application, which is bad but not a huge distance from the 12 week “service standard”.

What about the worst-case scenario? Here are the number of applications still pending as of 4th of September 2018 (Table 6 in the response).

Application Date	Delay as of 4/9/2018	Applications still pending as of 4/9/2018
2016Q1	over 2 years and 5 months	70
2016Q2	over 2 years and 2 months	65
2016Q3	over a year and 11 months	5
2016Q4	over a year and 8 months	20
2017Q1	over a year and 5 months	35
2017Q2	over a year and 2 months	80
2017Q3	over a year	100
2017Q4	8+ months	685
2018Q1	5+ months	1350
2018Q2	2+ months	330

Amazingly, approximately 160 poor sods have been waiting since 2016 for their visa applications. At the extreme end, the Home Office are giving people a really bad time indeed.

Results (Parts Two and Three)

In parts two and three of the FOI request I asked the Home Office how they categorise and prioritise applications as not straightforward in the first place. The response for parts two and three was incomplete due to the exemption allowed by FOI section 31(1)(e):

Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice — (e)the operation of the immigration controls.

With the Home Office’s justification for using the exemption being:

There is strong public interest in ensuring that the effective operation of immigration controls is preserved. The justification being that to release the guidance would show the sort of data we use and how we use it to determine the risk level of an application and so weaken the effectiveness of the UK’s immigration control by providing valuable information to those who would seek to circumvent it.

So basically they can’t reveal exactly how they categorise applications because it would make it easier for people to game the system. They did however give me a heavily-redacted internal memo advising staff on how to categorise applications as not straightforward:

The memo states that the Home Office has an internal service standard of 120 days for not straightforward applications:

Non-straightforward applications – where it is likely that a decision cannot be made within service standards because of certain enrichment activities (Redacted) or referral - must be recorded as ‘complex’ in Proviso. Complex cases must still be decided and despatched as soon as possible. Complex cases should normally be decided within 120 working days.

Reassuringly, the memo states that:

A case must not be marked as ‘complex’ simply because it was not processed within service standards.

Although the aforementioned Guardian whistleblower article suggests that this is not adhered to.

The memo lists the following reasons why an application may be categorised as not straightforward:

The required enrichment activity cannot be completed within CSS timelines… This includes:

Redacted

NHS support unit – e.g. concerns that applicant / sponsor may have accessed NHS care to which they were not entitled or have links to known NHS abuse.

Safeguarding contact – e.g. concerns for a child applicant’s welfare under Section 55 of the Borders, Citizenship and Immigration Act 2009.

Forced Marriages Unit – e.g. information received that applicant or sponsor is a victim of forced marriage.

Redacted

Where current policy is unclear, and referral is required to the relevant policy unit to clarify policy to enable the application to be properly considered.

For my girlfriend’s application I can only guess that the current policy was unclear.

Unfortunately on the 23rd of August 2018 we received a letter — dated the 23rd of July! — stating that my girlfriend’s application was rejected. We believe the reasons for the rejection to be spurious and are currently waiting for a court date for an appeal (but that is another blog post). The response arrived 126 days after the initial application, just outside the 120 day service standard for not straightforward applications — although I imagine the Home Office would dispute this since the letter was dated a full month before it arrived.