Complaints Management Guidance: version 7.

Transcription

1 Complaints Management Guidance: version 7. Guidance on how complaints are received, managed and resolved by UK Visas & Immigration, Immigration Enforcement & Border Force directorates of the Home Office Date for Review: April 2015

2 Contents 1. Introduction Overview of this guidance 1.2. Learning & Development 1.3. Equality & Diversity 2. Complaints management structure 2.1. Introduction 2.2. Roles and responsibilities of the units involved in complaints processes 2.3 Central Point of Receipt 2.4 Responder Hubs (RHs) 2.5 Border Force Complaints and Correspondence Team 2.6. Detention Services Complaints Team 2.7 Central Referral Team 3. Types of complaint handled 3.1 What is a complaint? Definition of a complaint & main categories 3.2. How might a customer complain? 3.3. Timescales for the submission of complaints 3.4 Factors to consider in deciding whether to investigate an out of time complaint 3.5. Issues which will not be dealt with under the complaints process Critical incidents 3.7. Parliamentary and Health Service Ombudsman (PHSO) complaints Prisons and Probation Ombudsman (PPO) 3.9. Independent Police Complaints Commission (IPCC) referrals The Police Investigations and Review Commissioner (PRC) Further external oversight 4. Dealing with complaints: general principles 4.1 Introduction 4.2. Using the Complaints Management system 4.3. Registering and recording 4.4. Ownership 4.5 Transferring complaints 4.6. Acknowledgements 4.7. Local Resolution of minor misconduct complaints 4.8 Responding to the customer 4.9 When a customer remains dissatisfied 4.10 Ex gratia payments 4.11 Learning from complaints 4.12 Complaints surrounding detention and removals 4.13 Complaints about immigration issues concerning International and commercial partners outside the UK 4.14 Complaints from children 4.15 Anonymous complaints 4.16 Third party complaints 4.17 Withdrawn complaints 4.18 Storing and Archiving 5. Service complaints 2

3 5.1 Categories of service complaint 5.2. Timescales for dealing with service complaints 5.3 File management and complaint storage 5.4 Learning from complaints 5.5 Review process 5.6 Feedback from customers: definition of what is not a complaint under this guidance. 6. Minor misconduct complaints 6.1 Introduction 6.2. Timescales for dealing with minor misconduct complaints 6.3. Local resolution of minor misconduct complaints 6.4. Guidance for managers 6.5. Review process 6.6. File management and Complaint storage procedures 6.7. Risk management 6.8 Learning lessons 7. Serious / Gross misconduct complaints 7.1. Definition of serious misconduct 7.2 Allegations of discrimination 7.3. Investigations into allegations of criminal behaviour 7.4 Who will investigate the complaint? 7.5 File management of serious misconduct cases 7.6 The investigation- preparation 7.7 The investigation communication 7.8. The investigation process interviews and evidence gathering 7.9 The investigation officer s report 7.10 The investigation process Disclosure of evidence 7.11 The outcome of the investigation 7.12 Possible action following an investigation 7.13 Risk management 7.14 Learning lessons 7.15 Review process 8. Special circumstances 8.1. Closing cases before resolution 8.2. Action while a complaint is under investigation 8.3 Complaints received in grounds of appeal 8.4 The Data Protection Act Freedom of Information Act Complaints mentioning legal action and county court claims 9. Complaints involving the Parliamentary and Health Service Ombudsman 91. Introduction 9.2 Overview of the PHSO complaints process 9.3 Premature complaints 9.4. Handling premature complaints 9.5 Requests for further information 9.6 Handling requests for further information 9.7. Full investigations 9.8. Handling full investigations 10. Unreasonably persistent customers and unacceptable behaviour 3

4 11. Complaints from children 11.1 Purpose Explanation of the safeguarding children duty in complaints handling Training Guidance concerning reasonable adjustments to the complaint handling process 11.5 Ensuring children and their representatives are aware of the complaints process Receiving and accepting complaints Communicating with the complainant 11.8 Serious misconduct complaints interviewing a child Explaining the outcomes from complaints Monitoring complaints & risk assessment Making a child welfare referral 12 Financial redress 12.1 Introduction 12.2 Principles for the consideration of ex-gratia claims 12.3 Maladministration Exceptional circumstances 12.5 Actual financial loss 12.6 Claims for non financial loss 12.7 Death of a customer 12.8 Ex gratia payment claims where there is a suspicion of attempted fraud Annex A Annex B Annex C Complaints Registration Form Features which indicate abuse Making a child welfare referral 4

5 Section1. Introduction 1.1 Overview of this guidance This guidance is written for the directorates which were part of the former UK Border Agency. These are UK Visas & Immigration, Immigration Enforcement, and Border Force. These business areas, as part of the wider Home Office, are committed to providing a: Professional; Fair; Efficient; Courteous; Consistent; and Helpful service to the public Dealing with complaints effectively and efficiently is a core element of our service to our customers. Complaints provide essential feedback so that we can learn lessons, improve our service and provide the opportunity to put things right. We should not be defensive about complaints but should use them as an opportunity to listen, learn and improve A complaint is defined as any expression of dissatisfaction that needs a response about the service we provide, or our about the professional conduct of our staff / contractors This guidance is about managing complaints from or on behalf of external customers only. It is not designed for dealing with internal complaints concerning Home Office, Immigration Enforcement, UK Visas & Immigration and Border Force staff, or issues for which there are other remedies, policies or procedures in place, such as Freedom of Information requests, requests under the Data Protection Act or Human Resources policies The complaints system is not intended to provide a remedy for those dissatisfied with the actual decision in their case or complaints about legislation or policy. More detail about what will be treated as a complaint can be found in Section This guidance provides essential information about complaint handling for: Staff who may receive external complaints; Staff in Customer Service Operations Central Point of Receipt (CPR) or responder hubs; Staff in Professional Standards Unit (PSU); Staff in Internal Investigation team ; and Staff in the Customer Service Operations (CSO) and Customer Performance and Change Additional guidance about dealing with complaints from children can be found at section 11 or in annex B and C To access the toolkit of resources for handling complaints please refer to Horizon at: Dealing with complaints UKVI / Border Force 1.2. Learning & Development To ensure that all staff have a clear understanding of their responsibilities with regard to the referral of complaints, especially where racism or discrimination are alleged, managers should ensure that all staff complete complaints e-learning training Good complaint handling 5

6 on This training is considered by Customer Service Operations to be essential for any staff working in the CPR or in Responder Hubs and was developed in partnership between Civil Service Learning and the Parliamentary Health Service Ombudsman. 1.3 Equality and Diversity We expect all customers to treat staff with respect and equality just as Immigration Enforcement, UK Visas & Immigration and Border Force directorates expect their staff to treat customers with respect and with regard to their diverse needs (in line with Home Office equality and diversity policies). Back to top Back to contents 6

7 Section 2 Complaints management structure 2.1 Introduction All staff have a responsibility to ensure that any complaint the UK Visas and Immigration, Immigration Enforcement or Border Force receives is dealt with appropriately. Our internal complaint management structure consists of: Local resolution when complaints are made on the spot to front line staff. These may usually, but not always concern the behaviour of Home Office staff, but are the type of issue that can be dealt with quickly, by the staff who received the complaint. See section 6.3 A more formal structure where customers raise their concerns in writing in either because they are still not satisfied or because their complaint requires explanation or is complex Verbal and face to face complaints For Border Force, Immigration Enforcement and UK Visas & Immigration staff: Staff who deal with customers and members of the public may receive complaints from time to time, about their colleagues, colleagues in other parts of the Home Office or about the teams they manage. Every effort should be made to resolve a complaint as per section Written complaints If the customer continues to be dissatisfied and wishes to raise or pursue their complaint in writing they should be provided with an information leaflet which provides the contact details for the customer to be sent either using an address or by post. UK Visas and Immigration staff (based in the UK) and Immigration Enforcement staff should provide customers with the How to complain leaflet appropriate for their work stream which contains the postal address for the Central Point of Receipt and the contact details. These are: Complaints Allocation Team Central Point of Receipt 11th floor Lunar House 40 Wellesley Road, Croydon, CR9 2BY. [email protected] This leaflet is also used as a form for customers to provide their complaint in writing and either send it in to the above address or ask a member of staff to send it on. Front line staff in Immigration Enforcement and UK Visas and Immigration teams can obtain stocks of the How to Complain leaflet by ing: CSOComplaintforms&[email protected]. Border Force staff should provide customers wishing to complain about their delivery of service 7

8 with the Complaints Form which includes the postal address for Customer Complaints and Compliments team the address for complaints related to Border Force staff behaviours or delivery of service. Customer Complaints and Compliments Long Corridor, 11 th Floor Lunar House Wellesley Road, Croydon, CR9 2BY GOV website Alternatively staff should offer the option of accessing the complaints information contained on the Home Office pages of the GOV website. UK Visas & Immigration holds the responsibility for receiving and replying to complaints about UK Visas and Immigration issues and Immigration Enforcement. Members of the public and others who have complaints about immigration enforcement activities should use the UK Visas and Immigration pages on the GOV site. Border Force has their own page Complaints Registration Form The Complaints Registration Form (CRF) is used internally by staff for: complaints which haven t been resolved; complaints made verbally about a different part of the business. The CRF is located in the complaints section of the Horizon site. Complaints can be made by customers abroad either using the above process or using the information on the individual UK embassy and consulate websites which can be accessed by the GOV website. 2.2 Roles and Responsibilities of the units involved in complaints process Customer Service Operations (CSO) has overall responsibility for complaints management. It sits within Customer Performance and Change and It s responsibilities include: Ownership of the complaint policy for the immigration businesses and for this guidance. End to end processing of complaints for UK Visas and Immigration and Immigration Enforcement. o Administration of the Complaints Management system (CMS) o Receiving, allocating and recording complaints o Investigating, writing replies to complaints and despatching these. o Reviewing local resolution decisions made by managers when customers remain dissatisfied with the outcomes and reviewing complaint decisions in general. Management or the handling of complaints referred to UK Visas and Immigration, Immigration Enforcement and Border Force by the Parliamentary Health and Safety Ombudsman. Monitoring and ensuring compliance with the complaints systems Providing management information to senior managers Communicating the complaints process to customers Central Point of Receipt (CPR) The CPR provides the single point of contact for all customers are directed to send in their complaints. Complaints are received either by [email protected] or by 8

9 post to Complaints Allocation Team, Central Point of Receipt, 11 th floor, Lunar House, 40 Wellesley Road, Croydon, CR9 2BY CPR forwards correspondence which does not meet the definition of a complaint to the appropriate team for handling under the relevant alternative process (e.g. handling of allegations) Hard copy letters received by the CPR are scanned or e-faxed so that they can be dealt with subsequently as electronic documents. Any local resolution complaints dealt with by the business are recorded and closed on the Complaints Management System (CMS) by CPR The CPR registers all complaints concerning asylum / humanitarian protection, permanent migration, temporary migration and visas on the CMS. Complaints are allocated within 48 hours to a Responder Hub for them to draft a reply and issue that reply to the customer. Once a case has been allocated by CPR all further administration on CMS becomes the responsibility of the Responder Hub The CPR forwards all serious misconduct complaints made to the Central Referral Team (CRT) to decide on allocation for investigation. Serious misconduct complaints which do not involve corruption are investigated by the Professional Standards Unit. At the end of the investigation, PSU will either close the investigation on CMS or will provide the relevant Responder Hub with the information to close the case on CMS. Complaints alleging corruption are passed by the CPR to the Internal Investigation Team which will decide whether a criminal investigation is appropriate. The CRT, Internal Investigation Team and the Professional Standards Unit investigate across the Home Office. Any written complaints received directly by staff in UK Visas and Immigration or Immigration Enforcement, which are not for their local resolution, should be sent to the Central Point of Receipt to be registered on CMS and correctly allocated. See section 4.7 for information on local resolution. Staff in CSO Responder Hubs may occasionally receive complaints from customers which have been forwarded via front line staff. If these are not already registered they should be sent to CPR for recording on the CMS. If complaints are allocated to Responder Hubs or Border Force or Detention Services CSU incorrectly after they have been registered on CMS, they can either be returned to CPR or sent on to the correct area for reply. The Central Point of Receipt does not provide replies to complaints On some occasions the CPR will receive a complaint which contains allegations that a foreign national has criminal convictions or other serious allegations. These are treated seriously as both third party complaints and as potential information received CPR will forward the original complaint the appropriate teams. If the complaint is not returned CPR close the complaint. If it is returned for a reply by CSO, responder hubs will follow any advice provided or follow guidance on third party replies if appropriate Responder Hubs (RHs) Responder Hubs are responsible for the investigation of complaints about the delivery of services. They also review local resolved complaints when customers request this. 9

10 All complaints which they receive should be recorded on Complaints Management System by Central Point of Receipt before allocation. London South & East RH deals primarily with Asylum and Humanitarian complaints and complaints about Immigration Enforcement service delivery North East Yorkshire and Humberside RH leads on Temporary Migration complaints North West RH manages Permanent Migration complaints Midlands, East of England & International RH investigates and replies to complaints concerning oversees applications and entry clearance Customer Service Operations (CSO) require Responder Hubs (RH) to work flexibly. Other Responder Hubs deal with other official correspondence, Treat Official and MP s correspondence and work within CSO structures. At times any Responder Hub may be asked to take on work from another Responder Hub s work stream CSO aim to reply to all complaints within 20 working days. Responder Hubs include within their responsibilities: Investigating, writing and despatching replies to complaints; Reviewing complaint decisions including local resolution decisions made by managers when a customer remains dissatisfied with the outcome (i.e. Stage 2 complaints as a reply has already been provided either through local resolution or by Customer Service Operations, Border Force or Detention Services CSU); Ensuring the quality of complaint replies i.e. are written in plain English, address the points made by the customer and are accurate; Liaising with the business to ensure lessons learned from complaints are communicated and work stream trends are assessed for business planning. Recording all the steps and detailed notes of investigations into complaints on CMS Negotiating with the business on the content of any complaint which cannot be answered by CSO without their input. Ensuring performance targets are met Assessing reimbursement issues where customers have made complaints and recording the information onto CMS in the Next Steps field. They do not provide a reimbursement service where there has been no complaint. Investigating and providing responses to PHSO (Section 9 refers) 2.5. Border Force Correspondence Team The Central Point of Receipt allocates complaints to the Border Force Correspondence Team for their action received via the Border Force at: [email protected]. Border Force Correspondence Team has a similar role to the Responder Hubs in that they reply to all complaints about the delivery of service in Border Force. They are responsible for recording the receipt of complaints onto CMS themselves Detention Services Complaints Team Separate arrangements exist for Detention Services Central Referral Team (CRT) 10

11 The Central Referral Team (CRT) provides a single point of contact for all complaints of serious misconduct made by customers, including allegations of fraud and corruption. (It also receives and records all allegations such allegations from internal staff; and the most serious /complex allegations of misconduct (Bullying, Harassment and Discrimination complaints) referred by managers with advice from the Shared Service Centre (SSC). The complaints are recorded and allocated for investigation either by Professional Standards Unit (PSU) or Corporate Security Criminal Financial Investigations (CSCFI). 11

12 Section 3 Types of complaint handled 3.1. What is a complaint? Definition of a complaint and main categories Complaints are defined as; Any expression of dissatisfaction that needs a response about the service we provide, or our about the professional conduct of our staff / contractors. For the purposes of this guidance CSO defines this as Immigration Enforcement, UK Visas & Immigration and Border Force staff, including contractors This guidance concerns complaints from members of the public and their representatives about the service delivery and professional conduct of our staff. It covers complaints about the conduct and efficiency of those contracted to act on behalf of Immigration Enforcement, UK Visas and Immigration and Border Force in the UK. Letters from an MP representing a customer are not dealt with as a complaint but should be dealt with under the guidance on Horizon dealt with under normal procedures for answering MPs correspondence. CM cb1a8c0RCRD Complaints are categorised as follows: Service complaints are related to the way that Immigration Enforcement, UK Visas & Immigration and Border Force work (typical complaints would be about delay, lost documents or administrative failings). These complaints are both about the actual service provided and the operational policies behind them. The handling of service complaints is covered in detail in section Minor misconduct is usually to do with isolated instances of rudeness and unprofessional conduct which are not serious enough to warrant a formal investigation and if substantiated they would not normally lead to discipline (misconduct) proceedings. The handling of minor misconduct (disciplinary) complaints is covered in section Serious misconduct is any unprofessional behaviour which, if substantiated, would lead to misconduct proceedings. Gross misconduct is serious misconduct which if substantiated on investigation or admitted could lead to dismissal. The handling of serious and gross misconduct complaints is covered in section How might a customer complain? Complaints are accepted in all of the following formats: Letter Telephone Fax Face to face How to complain form 12

13 3.2.1 Accepting complaints - languages Immigration Enforcement, UK Visas & Immigration and Border Force accept complaints in English and Welsh only (in accordance with the Welsh language Act 1993). If complaints are received in any other language, they should be returned, requesting they should be resubmitted in English or Welsh. Regardless of the language used all replies to complaints will be written in English or Welsh Complaints are accepted in languages other than English or Welsh only from those held in Immigration Removal Centres or Short Term Holding Facilities. Complaints forms are provided in other languages for this purpose. Detention Services will arrange for translation Accepting complaints children, vulnerable adults and under the Equality Act Arrangements for accepting, complaints, communicating with and engaging with customers should make the process accessible to all including those people with protected characteristics as set out in the Equality Act Where the usual arrangements are inappropriate for the individual circumstances of a particular customer s, reasonable adjustments should be made. Equality Act Timescales for the submission of complaints Apart from complaints about delay, complaints about service delivery or about misconduct should be made within three months of the date when the incident complained about happened or when the customer first became aware of it. Complaints made after three months are called out of time complaints. Customers will receive a reply to normal service standards explaining their complaint is out of time. There are exceptions to this: Responder Hubs will decide whether complaints about minor misconduct or service delivery should be investigated exceptionally due to their circumstances. Where a serious / gross misconduct case is received the PSU will decide whether complaints alleging serious /gross misconduct should be investigated due to the circumstances of the allegation Complaints about delay can be made from the point at which the action which should have been taken is outstanding; or within 3 months of the customer receiving notification that the action that had been delayed has been completed The timescales for the Parliamentary and Health Service Ombudsman (PHSO) to consider complaints referred by MPs are also longer than misconduct complaints. The PHSO normally won t investigate a complaint sent to an MP more than 12 months after the event although she does have discretion to do so Timescales and guidance for the handling and resolution of complaints are covered in Section 5, section 6 and section Factors to consider in deciding whether to investigate an out of time complaint The following is a guide of what factors to consider but is not exhaustive: Complaints concerning criminal activity, including corruption, should be sent to the 13

14 Central Referral Team (CRT) to consider and, if appropriate, allocate for investigation Cases where the customer could not reasonably have been expected to make their complaint within this timescale, e.g. they were out of the country or had medical issues Risk to the business if the complaint is not dealt with. The Equality Act 2010 may apply. 3.5 Issues that will not be dealt with under the complaints process The process set out here is not relevant for complaints about: The merits of an individual decision (e.g. refusal to renew leave to remain) for which there are established appeal routes, even where the grounds for appeal may be limited by legislation. Legislation or Government policy which would be dealt with under normal correspondence handling processes. (Complaints about operational policy i.e. how the Home Office directs and controls its officers and officials, should be dealt with as service complaints, see Section 5.) Refusal to disclose information requested under the Freedom of Information or Data Protection Acts; these should be referred to the appropriate team Allegations made against other customers A complaint lodged by an MP, as MPs letters are dealt with by a separate process. (However, if an MP s complaint alleges serious / gross misconduct then it should be referred to the PSU to consider investigation.) Complaints which following an assessment are considered to be frivolous or vexatious or are abusive, offensive or threatening will not be investigated. In some circumstances it may also be appropriate to curtail investigation if the complaint seems manifestly unfounded. For more detail please see Section Critical incidents Critical incidents are incidents and events outside usual business that could have serious consequences. Critical incidents may lead to complaints or may require investigation by PSU if they involve possible matters that could lead to discipline proceedings or the IPCC referral criteria have been met (see 3.9) e.g. because the incident involved death or serious injury Critical incidents can include: Death of a person Serious injury to any person Hostage taking of any person Attempt or threat of suicide Riot/public disorder If a critical incident involving Immigration Enforcement and UK Visas & Immigration is live (i.e. it is happening now) it must be relayed immediately to the Command and Control Unit (CCU). If it involves Border Force or Border Force personnel, it must be relayed to the Border Force National Command Centre (NCC) The CCU and NCU operate a 24 hour service, seven days a week The CCU is the single point of contact for the Independent Police Complaints Commission (IPCC) for Immigration Enforcement and UK Visas and Immigration and all live incidents MUST be referred by staff to CCU at the first possible opportunity. Where cases are referred to PSU by CCU, PSU will need to identify the area involved in the incident and notify 14

15 the respective business area. Border Force referrals are made direct to PSU during office hours or via the NCC outside of these Once a live incident is brought under control, CCU will then hand responsibility for managing any investigation and/or ongoing liaison with the IPCC to the PSU The policy on handling critical incidents can be found in Chapter 44 of the Operational Enforcement Manual Separate arrangements apply to critical incidents involving International Group staff or contractors working outside the United Kingdom. 3.7 Parliamentary and Health Service Ombudsman (PHSO) complaints The PHSO deals with complaints from members of the public who claim they have suffered injustice due to maladministration by a Government department or agency The customer is expected to should follow the internal complaints and review procedures set out in this guidance before referring their complaint to the PHSO. If the customer remains unhappy after their case has been fully reviewed through the complaints process they can ask their MP to refer their case to the Parliamentary and Health Service Ombudsman for investigation. Details about the PHSO and managing these complaints can be found in Section Prisons and Probation Ombudsman (PPO) complaints The PPO deals with complaints from people held in immigration detention by the Immigration Enforcement, UK Visas & Immigration and Border Force. Its remit covers complaints from people held in Immigration Removal Centres, short-term holding facilities, prison service establishments and those under escort. The PPO also produces an annual report detailing anonymised examples of complaints received; recommendations made and responses received; selected summaries of fatal incidents and number and type of investigations mounted As with the PHSO, the PPO will only usually get involved after the customer has been through the Agency s complaints process. Unlike the PHSO, people in detention can approach the PPO direct; the referral does not need to be made via an MP. See also and of this guidance The PPO will deal directly with the detention centre identified in the complaint. A copy of their report into the complaint is passed back to the detention centre as well as to the Detention Services 3.9 Independent Police Complaints Commission (IPCC) referrals The IPCC s statutory remit is limited to England and Wales In. In the case of serious complaints, incidents or conduct allegations the matter must be referred to the IPCC if certain criteria are met. The criteria for a mandatory referral to the IPCC are: a death or serious injury; serious assault; serious sexual offence; serious corruption; 15

16 criminal offence aggravated by discriminatory behaviour; or any incident which engages Articles 2 (the Right to Life) or 3 (against inhuman or degrading treatment) of the European Convention on Human Rights If the matter relates to a Immigration Enforcement, UK Visas & Immigration and Border Force officer, official or contractor performing immigration/asylum functions then a specified enforcement function (such as arrest, detention, search, etc) must also have been exercised. If the matter relates to an Immigration Enforcement, UK Visas & Immigration or Border Force official or contractor performing customs functions then the matter is referable whether or not a specified enforcement function has been exercised The specified enforcement functions are listed in section 41 of the Police and Justice Act 2006 and include: Powers of entry Powers to search persons or property Powers to seize or detain property Powers to arrest persons Powers to detain persons Powers to examine persons or otherwise to obtain information, (including power to take fingerprints or to acquire other personal data), and: Surveillance and associated activity The non-exercise of the above powers when it would have been appropriate to do so would also meet the criteria where it concerns the conduct of individual officers but not where a complaint is about Immigration Enforcement, UK Visas & Immigration and Border Force or Border Force policy e.g. where the Immigration Enforcement, UK Visas & Immigration and Border Force has issued instructions not to detain in certain cases. The powers do not include: The making of an immigration decision The making of any decision to grant or refuse asylum The giving of any direction to remove persons from the UK The IPCC also has the power to call in and oversee any complaint or conduct matter due to its gravity or exceptional circumstances. Similarly, Immigration Enforcement, UK Visas & Immigration or Border Force can voluntarily refer any complaint or conduct matter to the IPCC due to its gravity or exceptional circumstances Depending on the nature of the incident or complaint, the Professional Standards Unit (PSU) (see section 7) may be appointed by the IPCC to undertake an investigation into the matter. Alternatively, PSU will provide support and a single point of contact for a Police or IPCC investigation The Commissioner will inform PSU in writing of which of the following modes of investigation will be employed: IPCC independent investigation: in which the IPCC would use its own investigators to look into the incident or complaint but a PSU investigator might be required to compile some evidence and act as single point of contact for Immigration Enforcement, UK Visas & Immigration and Border Force. There is no right of appeal to the IPCC in these cases. IPCC-managed investigation: in which the Police or PSU undertakes the investigation under IPCC s direction and control. The IPCC would agree the Terms of Reference for 16

17 the investigation and monitor progress against them. There is no right of appeal to the IPCC in these cases. IPCC-supervised investigation: in which the Police or PSU would have control and direction of their own investigation. The IPCC would agree the Terms of Reference for the investigation and monitor progress against them. These cases give a right of appeal to IPCC. Local investigation: PSU carry their own investigations, with no further involvement from IPCC. These cases give a right of appeal to IPCC The Police Investigations and Review Commissioner (PIRC) The PIRC s remit is limited to Scotland. Until 2013 the PCCS had oversight of complaints but not of investigations into death and serious injury. From April 2013, the PIRC extended its remit to review all complaints and oversee the most serious incidents and conduct matters arising in Scotland involving Immigration Enforcement, UK Visas and Immigration and Border Force officials and contractors carrying out frontline immigration and customs activities. PIRC will now oversee complaints and investigations relating to immigration officers and customs officials who are enforcing specific functions. They will have their own investigation officers or refer cases to the Home Office for investigation with recommendations on how to proceed Where a customer is dissatisfied with Immigration Enforcement, UK Visas & Immigration or Border Force s final response to their complaint about staff operating in Scotland they have the right to ask the PIRC to review the matter where the following three criteria apply; the person whose conduct is the subject of the complaint must be someone directly employed by Immigration Enforcement, UK Visas & Immigration, Border Force or a contractor; the person whose conduct is the subject of the complaint must be undertaking immigration functions or customs functions whilst exercising specified enforcement functions at the time of the incident; and the complaint must have already been investigated by Immigration Enforcement, UK Visas & Immigration or Border Force and a final response issued, after it has undertaken its own review, a final response issued to the complainant There is no threshold of seriousness regarding the matters that PIRC will review. However, the PIRC will not review any complaints regarding direction and control matters, immigration decisions or matters occurring on the detention estate or during escorting If a request for a review is accepted, PIRC will undertake a complaints handling review in which it will examine how Immigration Enforcement, UK Visas and Immigration or the Border Force dealt with the original complaint. If it identifies areas of weakness with their handling of the original complaint it may choose to issue a reconsideration direction requesting that the matter is further investigated and an additional reply provided to the complainant. 17

18 A complainant should be advised in writing that they have a right of appeal to the PIRC, regarding a complaint meeting the criteria in , once the internal complaints handling process has been exhausted In practice, this means that replies following reviews by Responder Hubs / CSUs for minor misconduct and service complaints or the Head of PSU for serious / gross misconduct complaints, should include an explanation of the complainant s further right to seek a case handling review by the PIRC. The explanation should also set out the role of the PIRC and provide its contact details Further external oversight The Chief Inspector of Borders and Immigration routinely reviews complaints as part of his remit to provide independent scrutiny of the UK s borders and immigration functions The Children and Families Act was going through parliament gives the Children s Commissioner the remit to investigate the availability and effectiveness of complaints processes where they affect children. Although the legislation is not intended to provide an Ombudsman type function, it does provide for a role where the Children s Commissioner may provide advice or extra scrutiny for individual cases involving child welfare or education. Anyone dealing with complaints from children should ensure they are familiar with section 11 of this guidance and ensure that all complaints are dealt with regard to individual age and circumstances. Back to contents 18

19 Section 4 Dealing with complaints general principles 4.1 Introduction Some general principles apply to the handling of all categories of complaint. You should read this section in conjunction with the sections that discuss the specific handling of the different complaint categories (service, minor misconduct and gross / serious misconduct) When you receive a complaint decide whether the complaint is about standards of service or about the conduct of staff, or both. This will determine the process to be followed for resolving the complaint and will help to determine who should take ownership of it. 4.2 Using the Complaints Management System (CMS) The seven stages that a complaint will progress through are: (1) receiving the complaint (and any local resolution); (2) registering the complaint on CMS; (3) allocation; (4) consideration/ investigation; (5) drafting a response to the customer; (6) Quality review of the reply and: (7) completing any further steps such as ensuring ex gratia payments are made or lessons are learned and provided to the business Detailed guidance about how complaints should be entered, progressed and closed using CMS can be found in the CMS user guidance CMS automatically creates an audit trail, recording which member of staff has entered information relating to the action and outcome of cases. 4.3 Registering and recording All complaints must be registered on the Complaints Management System (CMS). CMS must be used by CPR, all CSO Responder Hubs Border Force and Professional Standards Unit (PSU) where it is available. All complaints, their outcomes and any ex gratia payments claimed and paid must be logged in order to track the progress of individual cases and report on the number and type of complaints received The Home Office website pages and How to complain leaflets direct customers to make their complaints to the Central Point of Receipt (CPR). The CPR is responsible for registering all the complaints they receive on to CMS and attaching any relevant electronic copies of documents. The CPR will then allocate the complaint to the relevant Responder Hub on CMS for them to manage the remainder of the process Some customers may have made complaints before or have the contact details for their relevant Responder Hub. They may therefore choose to send their complaints direct to the Responder Hub. Where this happens, the Responder Hub should send the complaint to the CPR and process as normal if the complaint is for the business area they cover Where the complaint is received direct by the business (e.g. on a casework team) and it is not for local resolution it should be copied to the CPR for inputting onto CMS. The role of the CPR will normally be to register the complaint and allocate it to a Responder Hub or send it on the 19

20 Central Referral Team (CRT). The role of the Responder Hub will be to consider, and, or, investigate the complaint and respond to the customer; PSU will investigate serious complaints allocated to it by the CRT CMS will only be available to people involved in managing complaints so it would be vital for others for notes about complaints and their resolution to be recorded on Case Information Database (CID), too All the complaints received using addresses / postal addresses provided as a channel for formal customer complaints should be recorded on CMS. Complaints made verbally, and in person, about service delivery or rudeness that are resolved immediately and no further action is required subsequently will not usually be recorded on CMS. These would include, for example, verbal complaints made by passengers about queuing times at Primary Check Points at ports or Reporting Centres, for which apologies or explanations had been given at the time, would not need to be recorded individually on CMS. However, managers should keep simple local records on volumes and types of complaint to allow trends to be identified and monitored, and from which lessons could be learned Where a complaint has been received verbally (other than in the circumstances described in 4.3.3), staff should record the details of the customer s complaint and resolution and copy this to the CPR [email protected] who will register the complaint directly onto the Complaints Management System (CMS) and close it When a service or minor misconduct complaint is resolved locally by the business such as a Reporting Centre, a copy of the response should be sent to the CPR, highlighting any outstanding ex gratia payments or other next steps, so that they can update CMS with the outcome (e.g. whether the complaint was substantiated or not, date of the response etc) and attach the response to the complaint record. A locally received complaint could be received and resolved in the same day. The Complaint Registration Form is available for staff not generally involved in complaints handling to use and this should be forwarded via the CPR to the RHs for the ex consideration of any ex-gratia issues related to complaints A Complaint Registration Form (CRF) is available from the Horizon website or as part of the How to Complain leaflet which the customer can use to make a written complaint. These can also be used by staff to log a verbal complaint from a customer. CRFs can also record each part of the process as the complaint is progressed so that the CPR can update CMS as required. 4.4 Ownership Serious misconduct complaints are never dealt with by the business area in which the alleged misconduct took place. Instead, these should be sent on immediately to the CPR for onward referral to the Central Referral Team (CRT) within 24 hours. Allegations of discrimination and racism are classed as serious misconduct under the complaint handling procedures and would be allocated by CRT to PSU to investigate; see section 7 and particularly 7.2 for further information. This varies from the discipline procedures where line managers investigate. Any complaints alleging racism or discrimination received by local managers should be referred to CPR and CRT for advice. (Any serious critical incidents that are live involving a member of staff using specified enforcement functions should be referred to the department s Command and Control Unit.) Complaints about service should be dealt with entirely by the relevant Responder Hub / CSU with responsibility for the work stream being complained about Minor misconduct complaints must be referred by the relevant Central Point of Receipt to the line manager of the subject of the complaint, or to another relevant manager if the line 20

21 manager is not available, to resolve through the local resolution process and in line with discipline policy on Horizon Discipline policy. Where a complaint makes a complaint which alleges both conduct and service elements a copy of the complaint letter may be forwarded to the relevant CSU / Responder Hub for a reply on the service part of the complaint, although in some circumstances this may be progressed as part of the local investigation as local resolution after consultation with the Hub. CSO retains ownership of the overall complaints process and the service complaint and should ensure information is available to make an appropriate reply Where a complaint contains elements of more than one category all separate elements should be investigated and resolved. It is the responsibility of the Responder Hub dealing with the primary work stream to co-ordinate responses on all the separate elements, liaising with other Responder Hubs / CSUs if necessary. 4.5 Transferring complaints Occasionally, the CPR may inadvertently allocate complaints to the wrong Responder Hub or CSU. When this occurs the Responder Hub or CSU should refer it back to the CPR within 48 hours for reallocation along with an explanation as to why the complaint is not for them (Annex C). The CPR will then ensure it is re-allocated on CMS to the correct Responder Hub within the following 48 hours. Alternatively a Responder Hub may reallocate, but should ensure CPR have been informed why the complaint has been reallocated and issues have been sorted out with the Responder Hub to which they are re-allocating Where there is disagreement between Responder Hubs as to which one should own the complaint, it will be for the G7 complaints lead to make a final and binding decision. 4.6 Acknowledgements If the complaint cannot be resolved within two working days of receipt by the relevant Responder Hub, it should send a written or acknowledgement to the customer with contact details of the person who is handling the complaint. (If paper files are being used, acknowledgements must be printed off and placed on the file). If it is likely that the response cannot be sent within the published timescale of 20 working days of receipt by CPR, the acknowledgement letter should tell the customer when they can expect to hear from us. 4.7 Local Resolution of minor misconduct or service complaints Local resolution is the primary means of handling all minor misconduct or service complaints. Local resolution is about solving, explaining, resolving or settling a customer s complaint. It involves a commitment to improving services and a willingness to acknowledge that a situation could have been handled differently and better. This should involve the member of staff or manager discussing the complaint/disagreement with the customer concerned and, where possible, attempting to find a mutually satisfactory resolution. The emphasis is therefore on the member of staff or line manager to ensure discussion with the customer at the earliest possible opportunity Local resolution may include: Providing information or explanation; Resolving misunderstanding; or Apologising on behalf of the business or the official against whom the complaint has been made if the official agrees. 21

22 4.7.3 The customer s acceptance and agreement of the resolution achieved is the prime objective. However, if all reasonable options have been discussed with the customer but there is still no agreement, it will be necessary to bring the matter to a conclusion through a final reply letter. Failure to reach agreement under local resolution does not mean that the same matter should then be looked at under any formal investigation. An extensive, investigative process would be disproportionate for minor misconduct and service complaints When dealing with complaints from children under the local resolution process all staff should be aware that some children may feel the rights and wrongs of a situation keenly whereas others might be less forthcoming about the details. Please read Section 10 of this guidance before investigating any complaints from children or from representatives making a complaint on their behalf. You should note it is not part of the local resolution process, when investigating complaints from children, to interview them. You can however ask in a non judgemental way for more information based on the details previously provided. It is important when communicating the outcome of a local resolution complaint to a child, particularly in a case of minor misconduct, that you provide the right amount of information in a way that is appropriate to the age of the child and to their understanding. All local resolution complaints from or involving children or made on their behalf which are resolved by line managers / caseworkers should be recorded to ensure they are auditable and to provide management information. The Complaints Registration Form (CRF) on Horizon should be completed and sent to [email protected] in addition to local processes on children set out by the Children s Champion The Central Point of Receipt /Responder Hubs / CSUs will need to be notified in writing of complaints that have been addressed through local resolution so that they can record the details on CMS. Including checking the box to say the complaint involves a child. This excludes the immediate resolution of complaints described in Responding to the customer Customers have to be informed of the outcome of their complaint - whether it is substantiated or not - as well as any steps Immigration Enforcement, UK Visas & Immigration or Border Force are taking as a result of it. (The only exception is where PSU investigate complaints containing corruption allegations and to which these procedures cease to apply - see 2.4.2) The response does not necessarily need to be in writing, sometimes it is sufficient to give a verbal response to a customer who has complained Where a written response is provided the HEO workflow manager must quality assure that response (whether for posting or ). A copy of the response, confirmation of who quality assured the reply and a summary of any other steps that need to be taken, including who is responsible for taking them, must be recorded on CMS by the Responder Hub NB: Failing to attach a response on CMS means the case is not recorded as closed and will therefore show as not having met the service standard target If the response was not in writing the CPR should be informed straightaway that the complaint has been resolved, whether or not the complaint was substantiated and any pertinent points arising from discussions with the customer. The CPR must log these details onto CMS Any written response is potentially going to contain personal information as defined by the Home Office s Information Management policy and must be protected accordingly. The full policy on handling personal data can be found at. Guidance and policy on personal data 22

23 Personal information should only be sent by electronic means where the customer is aware that the communication is not secured and is still content to use that method of communication. In no circumstances should customers be asked for bank account details to be sent to Responder Hubs, Immigration Enforcement or Border Force, or Detention Services through . Nor should those account details be recorded on CMS. Customers should be reminded use is at their own risk When any verbal or written response to the complaint is provided, the customer must also be informed about how they can take forward their complaints if they are not satisfied with the reply. If the customer is complaining about matters occurring on the detention estate or during escorting, then they have a right of appeal to the Prisons and Probation Ombudsman about the handling of their complaint For other complaints, once the complaint handling process, including a review by the Responder Hub. The first review gives the customer the opportunity for someone else to look at the complaint to ensure that the complaint has been fully assessed. It is vital this happens to avoid unnecessary escalation to the PHSO for investigation. When the review process has been exhausted the customer would have recourse, via their MP, to the Parliamentary and Health Service Ombudsman. This is fully explained in our leaflet How to Complain and on the How we will deal with your complaint page of the website. In addition, complaints about matters in Scotland involving certain staff will also have a right of appeal to the PIRC (see 3.10) and the most serious complaints involving certain staff in England and Wales will have certain grounds of appeal to the IPCC (see 3.9) In written responses to customers after a review has been undertaken and internal complaints processes exhausted, the following sentence should be used to explain this; If you are not satisfied with how your complaint has been addressed you can contact your MP and ask for your complaint to be referred to the Parliamentary and Health Service Ombudsman 4.9 When a customer remains dissatisfied If a customer is dissatisfied with how the department has dealt with their complaint, there are processes for reviewing this internally and in some cases externally as well. A customer has up to one month from the substantive reply to make any complaint to challenge the findings. See sections 5, 6 and 7 for the review processes appropriate to each type of complaint. The right to a review should be explained in any written response to complaints Ex gratia payments The Responder Hub / Border Force should consider whether the customer has been subject to maladministration by Immigration Enforcement, UK Visas & Immigration or Border Force and suffered an actual financial loss that should be reimbursed or extreme distress that would merit a consolatory payment. If so, the CSO Responder Hub / Border Force Complaints should then consider the appropriate level of financial redress to be paid in accordance with the guidance in section Learning from complaints Complaints may indicate areas of risk for the business or areas where they can learn lessons and make improvements. This may be through the nature of individual complaints (usually serious misconduct), the volume of complaints being received, or an increase in the number of complaints being received in a particular area or about a particular issue. Responder hubs are introducing a satisfaction survey tailored to those who have been through the complaints process. Data on complaints performance and productivity is being used through the Performance Hub process to identify key issues on performance. 23

24 The work stream expert should be alerted to risks regarding their specialist work stream. These should then be discussed with the relevant business area contact on a regular basis and issues addressed so that business is aware of trends from complaints being made and can take appropriate action or can provide information relevant to investigating and answering complaints Complaints surrounding detention and removals Complaints regarding services on the detention estate or the conduct of staff on the detention estate or undertaking escort duties will be handled under Detention Services complaints procedures, which follow Immigration Enforcement, UK Visas & Immigration/Border Force principles. This means that there are some differences. Staff and contractors working in immigration removal centres, short term holding facilities, holding rooms or escorting should read the Detention Services guidance manual in conjunction with this guidance. This procedure can be found using the following link: Complaints about immigration issues concerning International and commercial partners outside the UK Complaints regarding visa processing services involving Immigration Enforcement, UK Visas & Immigration and Border Force staff and commercial partners at sites outside the UK are subject to complaints handling policies and procedures which are consistent with their unique operating arrangements, but which are aligned with Immigration Enforcement, UK Visas & Immigration and Border Force s principles for complaints handling. Further guidance on these procedures can be found at: and from that point complaints are made to the individual consulates / embassies using the channel they recommend for each location Complaints from children For a detailed explanation of how complaints from children should be dealt with please refer to Section 11. It is particularly important that complaints from children are accepted, managed and resolved properly. Customer facing staff need to undertake the Immigration Enforcement, UK Visas & Immigration and Border Force s Keeping Children Safe training and be aware of the general and specific duties under Section 55 of the Borders, Citizenship and Immigration Act 2009 as set out in the statutory Guidance; Every Child Matters. These duties include ensuring that children with whom staff and contractors have contact have easy access to complaints procedures A complaint made by a child should be handled sensitively and staff should be alert to any indications that a child may be at risk and take appropriate action. Where there is a risk of harm, or harm has occurred to a child and a member of staff has been removed from their post because of this, information must be provided to the Independent Safeguard Authority (ISA) which is responsible for making decisions on who should be barred from working with children. See the Discipline policy for further advice Anonymous complaints Whether or not a customer chooses to disclose their identity does not affect the need for the complaint handlers to consider the issues raised and deal with them appropriately. Anonymous complaints should be dealt with under these procedures insofar as possible. The detail, available corroboration and seriousness of the anonymous complaint will determine the proportionality of any planned investigation. This includes the procedures for investigating a 24

25 complaint if there is sufficient information to do so and recording complaints in CMS using ANON Third party complaints Legal representatives, sponsors or others (e.g. family members or even casual observers) may complain on behalf of someone else. Disclosure of any personal or case information to third parties should follow the guidelines set out in IDI Chapter 24. If the person who made the complaint is not an authorised representative of the customer in question or legally responsible for them it may not be appropriate to disclose the outcome of a complaint investigation (e.g. if the response would update on the progress of an application), or even to conduct an investigation (where a misconduct case involves seeking further information from the customer). In these cases you should send an acknowledgement and explain that the complaint cannot be investigated without a written authorisation from the customer. However where serious / gross misconduct has been alleged, the case should always be passed to the CPR to refer to CRT for possible investigation Withdrawn complaints If a customer decides to withdraw their complaint efforts should be made to establish the reason for withdrawal. The fact that a complaint is withdrawn does not necessarily mean that there is no issue to address. If the complaint raises serious issues, particularly about the conduct of staff, consideration should be given to continuing an investigation into the complaint in the usual way Storing and Archiving Paper records will have been raised for all complaints but wherever possible, those paper records should be scanned onto CMS. Where an electronic record for service complaints and minor misconduct complaints has been raised on CMS, the paper file (which is now a duplicate of the electronic records) may be securely destroyed, in line with the Home Office information management rules. Where a paper file is the only retained record it must be held for a minimum of three years Customers bank account details should not be recorded on CMS. If Responder Hubs or Border Force have bank account details for a customer in hard copy these should be redacted from the document or the whole document shredded, once a payment has been made If the complaint becomes subject to litigation or compensation claim (compensation is awarded by the courts) the file should be retained for ten years to ensure relevant information is available to the court or relevant oversight body All paper files concerning PSU investigations should be retained for ten years. Back to contents 25

26 Section 5 Service Complaints 5.1 Categories of service complaints Service complaints are related to the way that the Immigration Enforcement, UK Visas & Immigration and Border Force work. They are usually categorised and recorded on CMS under one of the following headings: Delay (e.g. in delivery of a service) Administrative/process error (failings in the process, administrative error, poor service or failure to meet service standards) Poor communication (failure to keep customers informed; failure to answer correspondence, return calls etc) Wrong information (provision of poor, misleading, inadequate or incorrect advice) Lost documents (e.g. passports or birth certificates submitted by customers that have been mislaid) Customer care physical environment (complaints relating to tangible, physical aspects of the service such as access, up to date equipment and accommodation as well as the ease and convenience with which it can be used) Customer care availability of service (loss of access to services, for example IT or other equipment breakdown) Customer care provision for minors (failure to take the particular needs of children into account) Customer care complaint handling (failure to respond to a complaint or dissatisfaction with the response) 5.2 Timescales for dealing with service complaints If a complaint about service cannot be resolved straightaway then an acknowledgement should be sent within two working days of the receipt of the complaint within the Home Office and a substantive reply should be sent within 20 working days of the date that Immigration Enforcement, UK Visas & Immigration and Border Force first received the complaint. 5.3 File management and complaint storage procedures Where CMS is accessible, service complaints should be administered on CMS and all relevant documents stored electronically as part of the CMS record. Responder Hubs may choose to raise temporary paper files too but these are not obligatory Where CMS is not accessible, service complaints should be kept on the personal file (Home Office file) of the customer. They should remain on the file at all times along with copies of all replies to the customer If a customer does not have an existing personal file, a local file will need to be created in which to store the complaint. Files should carry the appropriate protective marking in accordance with the department s information management policies and should be held for a minimum of three years Where the customer has a CID record it is good practice to record in Notes on CID that there has been a complaint and provide a CMS unique reference number (if applicable). 5.4 Learning from complaints Complaints may indicate areas of risk for the business or areas where they can learn lessons and make improvements. This may be through the nature of individual complaints 26

27 (usually serious misconduct), the volume of complaints being received, or an increase in the number of complaints being received in a particular area or about a particular issue The Single Point of Contact should be alerted to risks regarding their specialist workstream / business area. These should then be discussed with the relevant business contact and issues addressed under the principles of the service level agreement between CSO and other business areas. 5.5 Review process Following the receipt of the substantive reply, customers may seek a review of the findings of the officer answering the complaint. All complainants have up to 1 month from the date of the substantive reply to their complaint to seek a substantive review of the findings. Reviewers may use their discretion if there appear to be exceptional circumstances to review a reply which is sent after 1 month, although there is no obligation to take on these cases.. The same Responder Hub (or Border Force Correspondence Team / Detention Services) will be responsible for reviewing the handling of service complaints but the review should be undertaken by an independent officer who was not involved in drafting or quality assuring the original response The Responder Hub or reviewer will acknowledge a request to review a complaint within two days of receiving it. The reviewing manager will review the steps taken to resolve the complaint and if they decide the investigation to have been insufficient they will consult the relevant responder to find out what went wrong and ensure that the issue is addressed If the reviewer judges that the process was so flawed as to affect the outcome of the complaint the Responder Hub / CSU will re-consider the complaint under the correct process The reviewer will provide a full response to the complainant with their findings within 20 working days of the request to review the complaint If the customer remains unhappy they can ask their MP to raise their complaint with the Parliamentary and Health Service Ombudsman (PHSO). For more information see section If a customer whose complaint concerned immigration detention or escorting is unhappy with the outcome of their complaint they also have the opportunity to take their complaint directly to the Prisons and Probation Ombudsman (PPO) Customers submitting their case to the PPO must do so within three calendar months of receiving a substantive reply through the Home Office s own complaints procedure, or no reply to their complaint after 6 weeks of making it. The PPO will not normally accept complaints where there has been a delay of more than 12 months between the complainant becoming aware of the relevant facts and submitting their case to the PPO, unless the delay has been the Home Office s fault and the PPO considers that it is appropriate to do so. However, the PPO has discretion to investigate those where there is good reason for the delay, or where the issues raised are so serious as to override the time factor Customers whose complaint has been through all internal processes including a review by Responder Hubs or Border Force Complaints and Correspondence Team, would also have a right to seek a case handling review by the PIRC if their complaint concerns staff (not contractors) undertaking immigration functions and using specified enforcement functions in Scotland. 27

28 5.6 Feedback from customers: definition of what is not a complaint under this guidance Direction and control A member of the public is entitled to ask questions about the way in which immigration, asylum and customs functions are delivered. These can provide valuable feedback about the public s view of our organisation but should not be treated as complaints. Such correspondence should be considered and responded to by the relevant business area Correspondence that relates to direction and control such as: Operational enforcement policies (where there is no issue of conduct) Organisational decisions General operational standards of relevant officers, relevant officials of the Secretary of State or officials exercising customs revenue functions Operational management decisions (where there is no issue of conduct) Local policies and operating procedures (where there is no issue of conduct) Direction and control is exercised by Immigration Enforcement, UK Visas & Immigration and Border Force managers who have legitimate independent operational responsibilities and discretion as to how best to fulfil those responsibilities. They operate by virtue of a formal delegated authority from the Secretary of State or Immigration Enforcement, UK Visas & Immigration and Border Force s Chief Executive Officer/Director of Border Revenue either directly or indirectly For example an Immigration Enforcement team manager has discretion about how they provide enforcement functions for their locality. They may develop local policies and operating procedures within the overall Immigration Enforcement, / Border Force framework. Such local policies and procedures are covered by the term direction and control. Operational enforcement policies may be national, regional or local in form and set out the standard expected and the ways of working which should ordinarily be carried out in prescribed conditions. It is accepted that in exceptional circumstances it is both appropriate and acceptable to depart from these policies. Such decisions are made by way of operational management decisions Operational management decisions are the result of decision-making in reference to an assessment of available evidence. Such decisions include: The agreement of business plans The decision to make specific recommendations to senior managers/ministers on policy and practical matters How to best manage resources (decisions relating to prioritisation) Those made in reference to available intelligence, gathered surveillance information and risk assessments (where there is no issue of conduct Back to contents 28

29 Section 6 Minor misconduct complaints 6.1 Introduction Line managers and anyone who is the subject of an allegation of misconduct can read this section to understand how the complaint will be investigated if it from a member of the public Misconduct complaints are those which allege that the behaviour of any member of staff or contractor has failed to meet acceptable standards Minor misconduct matters are those that, if substantiated, would not normally lead to criminal or misconduct proceedings against the subject of the complaint Some examples are: Incivility; Brusqueness; Isolated instances of bad language; An officer s refusal to identify themselves when asked; Poor attitude, e.g. being unhelpful, inattentive or obstructive. These types of complaints can be received verbally or in writing by line managers of frontline staff If complaints assessed as minor misconduct are received in writing by the CPR they will be registered on CMS and forwarded to the Responder Hub to identify the line manager and the details of the complaint to them. Where a line manager receives a minor misconduct complaint in writing directly from the customer they should forward a copy to the CPR to register the complaint on CMS. Any behaviour which, if substantiated, would lead to misconduct proceedings is classed as serious misconduct or gross misconduct and any such allegation must be passed via the CPR to the Central Referral Team (CRT). Section 7 sets out the kinds of behaviours which would warrant a formal investigation under the serious/gross misconduct procedure. If in any doubt, consult the CPR for advice Addressing minor misconduct has always been part of local line management responsibility. Many complaints concerning minor misconduct matters should normally be resolved through the local resolution process below. 6.2 Timescales for dealing with minor misconduct complaints If the line manager (or other relevant local manager) cannot resolve a complaint about minor misconduct straightaway (within two working days of the correct business area receiving it) they should send an acknowledgement within two working days and reply substantively within 20 working days of the date that the Immigration Enforcement, UK Visas & Immigration or Border Force first received the complaint. 6.3 Local resolution of minor misconduct or service complaints Local resolution is about resolving, explaining, clearing up or settling a complaint. The aim is to provide a speedy and satisfactory resolution to a complaint. It involves management commitment to improving services and a willingness to acknowledge that a situation could have been handled differently or better. It is not part of the procedures outlined in the Discipline policy and is not used for conduct which would be subject to those procedures.. 29

30 6.3.2 In many cases, if the customer is present, it offers the opportunity to resolve the complaint immediately by talking to the customer to clarify the issues, explain operating procedures, agreeing the actions to be taken and where appropriate offering an apology. 6.4 Guidance for managers The manager should act as quickly as possible to resolve a complaint. Resolving minor issues promptly benefits the customer, the official against whom the complaint was made, as well as the business If the complaint lacks specific details a telephone conversation with the customer may help to clarify issues and avoid additional correspondence. The line manager may also need to decide whether an investigation is required under the Discipline policy Local resolution should be proportionate to the complaint. Line managers will always need to talk with the staff member the complaint was about but have discretion to determine what further steps to take in accordance with the Discipline policy Managers should be pragmatic and recognise that in many cases the issue might be a matter of perception or feeling. For example, an officer may feel they have acted in an appropriately assertive manner when speaking to a customer: The customer may feel that the officer s tone was rude or aggressive. There is no objective way to prove or judge the officer s tone of voice and so the customer s feelings must be accepted as valid. It would be appropriate for an apology to be given to the customer for any unintentional offence caused by the officer, even if the officer believes they were not rude and states they did not intend to be When speaking to the staff member the line manager should explain: Why the matter is being treated as a minor misconduct complaint The purpose of local resolution That local resolution is not part of thediscipline policy. (If a formal investigation is required including PSU investigation - the staff member would need to be properly advised of this and informed that that the matter could potentially lead to a discipline hearing under thediscipline policy.) That any training needs that are identified will be followed up In a local resolution, the staff member does not have the same right to representation from a trade union or other colleague as in a discipline investigation. If at any stage serious issues emerge and a discipline investigation or PSU investigation is deemed necessary the Discipline policy will be followed Where the complaint is resolved verbally a note of all contact with the customer and actions taken should be maintained by the line manager. The line manager is required to copy the notes to the CPR for logging onto the Complaint Management System (CMS). Copies of all written replies to the customer should be sent to the CPR for logging onto CMS and closing down the complaint The customer should always be informed of how their complaint was resolved. If they are unhappy with the outcome they should be advised of the review process Care should also be taken to ensure that any disclosure of information relating to staff protects their personal information and meets the requirements of the Data Protection Act as well answering the points made in the complaint. 30

31 6.5 Review process If a customer is unhappy with the handling of a minor misconduct complaint they can ask the Responder Hub to review the process. Line managers should provide the customer with the address of the Central Point of Receipt and or the address [email protected] for Immigration Enforcement and UK Visas and Immigration staff For Border Force they can contact Border Force correspondence at [email protected] The customer should be clear that the complaint is submitted for review If the customer is present and wishes to request a review immediately line managers can provide them with a How to complain form or use the Complaints Registration Form for them if necessary. A customer has 1 month from the substantive reply to their complaint to seek a review of the findings of the line manager who responded to the customer. The review is at stage 2 and is by a Responder Hub, Border Force Complaints Team or by Detention Services The case must be reviewed within 20 working days. Reviewers will look at the paperwork to ensure that local resolution was appropriate and that the conclusions were warranted from the evidence provided Where staff with specified enforcement functions are involved the Responder Hub or Border Force or Detention Services will seek advice from the PSU. Only in cases where PSU decide that local resolution was inappropriate will they decide to carry out an independent investigation themselves If the evidence suggests that the manager handling the complaint showed bias; the investigation was incomplete, inadequate or flawed; or appropriate steps to address unprofessional behaviour were not taken; the Responder Hub should contact the line manager who responded originally (or their manager if the concern is about that manager s handling of the case) to take the matter further as appropriate. The customer retains the right to take their complaint to the Parliamentary and Health Service Ombudsman (PHSO) or, in the case of a customer who was, or still is, subject to immigration detention, to the Prisons and Probation Ombudsman (PPO). See sections 5.7 and section 9. All review letters will include this information. 6.6 File management and complaint storage procedures All paperwork relating to a minor misconduct complaint must be kept securely at all times, marked as Personal Protect. Files should be held for a minimum of three years by line managers / Responder Hubs or Border Force/ Detention Services The line manager of the person whose conduct was in question should also be advised of the complaint resolution. They may wish to retain that information on the Management file of the individual concerned. 6.7 Risk management Minor misconduct complaints are considered to be low risk cases. A risk assessment of individual cases is not required. However, as with service complaints, it is important to identify and manage risks associated with the most common categories of these complaints. Information on the categories of complaints received is accessible via CMS and will identify: 31

32 The highest volumes of complaints by category, region and business area Emerging trends Performance against tackling previously identified trends 6.8 Learning lessons Many minor misconduct cases will result in feedback or training for the individual staff member concerned. Some cases may additionally indicate points for wider learning or consideration within Immigration Enforcement, UK Visas & Immigration and Border Force The work stream expert - should be alerted to learning points regarding their specialist work stream by the Responder Hub or Border Force / Detention CSU. These should then be discussed with the relevant business area contact and issues addressed. Customers whose complaint concerns Immigration Enforcement, UK Visas & Immigration or Border Force or staff (not contractors) undertaking immigration functions and using specified enforcement functions in Scotland, and whose complaint has been through all internal processes including a review by the CSU, would also have a right to seek a case handling review by the PIRC. Back to contents 32

33 Section 7 complaints Serious /Gross misconduct General background for all staff Professional Standards Unit is responsible for investigating serious and gross misconduct issues raised by customer complaints in the Home Office Line managers and anyone who is the subject of an allegation of misconduct can read this section to understand how the complaint will be investigated if it from a member of the public. HR policy and guidance, Discipline: How to guidance, is a companion to this section of the guidance and sets out the framework, standards and process for investigations of serious misconduct and how the investigation will affect staff. Allegations of serious misconduct made by members of the public may be made to at any time to managers and colleagues of frontline staff or as part of service complaints which might otherwise be resolved locally through the local resolution process (section 6 of this guidance). Complaints also arrive via the Complaints Allocation Hub, either in or by post. Anyone in UK Visas and Immigration, Immigration Enforcement or Border Force who is approached by a member of the public wishing to make a complaint about the conduct of staff or contractors which does not meet the definition of minor misconduct provided by this guidance at should: Provide the [email protected] address or the Border Force [email protected] or the postal address for the Central Point of Receipt or the How to Complain leaflet so the customer can make the complaint in writing. Record the details of the officer subject to the allegations, details of the complaint and customer and other information onto a Complaints Registration Form on the customers behalf and send this to the Central Point of Receipt (CPR) at the same address. The Central Point of Receipt will register the complaint form or letter on CMS and refer the complaint to Central Referral Team (CRT). The CRT will make an assessment of whether the complaint should be passed onto the PSU or the Security and Anti Corruption Unit (SACU) for investigation. The CRT may refer the complaint back to the Central Point of Receipt if the issue is a minor misconduct issue which should be investigated by the line manager or an officer appointed by the line manager. See Section 6 for minor misconduct and local resolution. Within the Professional Standards Unit, external complaints, i.e. complaints from members of the public, have a completion timescale of 12 weeks. These investigations are not to be confused with discipline investigations. Whilst PSU investigating officers will adhere to the principles within the discipline guidance, for instance that staff members can be accompanied by a trade union representative, the purpose of the investigation is to establish the facts of the complaint, determine if it the complaint is substantiated, part substantiated or not substantiated and to provide a reply to the complainant. At the end of the investigation the investigating officer produces a detailed investigation report which is supplied to the relevant business areas involved in the investigation of the complaint. Where managers identify the need for a discipline investigation as a result of a 33

34 report produced by the PSU, there is no need for a second investigation. The discipline investigation process must be followed, however, the report can be used as the evidence and the process can move direct to the hearing stage. If further evidence is required or the report does not cover the appropriate areas as additional allegations are made, then an investigating officer should be appointed and further evidence obtained as appropriate. Please refer to Discipline: how-to guidance for further information. 7.1 Definition of serious misconduct Before line managers take action to resolve a misconduct complaint they need to consider whether an allegation is of minor or is serious / gross misconduct. Minor misconduct is defined in section 6. Serious or Gross misconduct is any action or behaviour of a Home Office staff member or contractor which, if substantiated, could require formal management action such as written warnings, dismissal or other penalty. All line managers who consider that complaints about the staff or contractors may or does meet the criteria for serious misconduct must refer the case to the Central Point of Receipt if they receive them directly from the complainant Serious / gross misconduct complaints are based on allegations that fall into one of the following categories and should be recorded as such on CMS: Criminal Assault Criminal Sexual Assault Criminal Theft Criminal Fraud or Corruption Racism or other discrimination. (NB: This category should be used to record all allegations of discrimination related to protected characteristics as defined in the Equality Act 2010.) Unfair treatment (e.g. harassment) Other Unprofessional Conduct (including any behaviour likely to bring the Home Office into disrepute; or which casts doubt on a person s honesty, integrity or suitability to work for the Home Office.) All serious / gross misconduct complaints received about, UK Visas & Immigration, Immigration Enforcement Border Force staff or contractors must be referred to the Central Point of Receipt who will liaise with the Central Referral team (CRT). If appropriate the CRT will allocate the complaint to PSU or Corporate Security Criminal & Financial Investigations (CSCFI). The Command and Control Unit (CCU) or the National Operations Command and Control (NOCC) for Border Force may also refer matters arising from serious incidents to PSU Once CRT has established which team will investigate the complaint, this will be fed back to the CPR. The accepting team will update CMS to reflect they are taking the investigation forward. On conclusion of the investigation the accepting team will close the entry on CMS. The PSU will add a copy of the complainants reply letter to the CMS entry, on closure of PSU cases If the complaint is referred back, but the allegations are serious, the line manager or Decision Manager (if not the same) should follow the guidance in the Discipline: How to guidance on formal investigations. 34

35 7.1.6 They should however follow the requirements of this section of the complaints management guidance for communicating with the complainant and for keeping Responder Hubs informed (7.7, 7.10, and ) When a reply letter is sent to the complainant by the line manager or DM, informing them the complainant of the outcome of their complaint, the line manager or DM should ensure that the process for review of the complaint by a Responder Hub is clearly written. Ensure that the address for complaints is provided to the customer so they can request a review within 1 month from the date of the substantive reply to their complaint Where the PSU conducts the investigation, they will provide details for who the complainant should contact in order to submit an appeal. The appeal avenue will differ by case and in each case the complainant will be informed, in their reply letter, of their avenue of appeal, regardless of the outcome of the complaint: Detention complaints Prison and Probation Ombudsman (PPO) Short Term Facility complaints Prison and Probation Ombudsman (PPO) Escorting complaints Prison and Probation Ombudsman (PPO) Non-detention complaints Head of Unit (HOU) Review then Parliamentary and Health Services Ombudsman (PHSO) Complaints re incidents in Scotland involving the Police or Home Office staff Police Investigation Review Commission (PIRC) (HOW Review must be conducted first). Complaints involving the use of police like powers Independent Police Complaints Commission (IPCC) Please see section 10.5 of this guidance for instructions on allegations of misconduct which include children. 7.2 Allegations of discrimination Not every complaint that alleges discrimination or racism will be for PSU to investigate. Of complaints alleging discrimination, racism is by far the most frequent type of discrimination referred to. CRT and PSU use the D x 3 + E formula, recommended by the Independent Police Complaints Commission (IPCC), for considering whether complaints show possible discrimination. The formula stands for: Has there been a Difference in treatment? i.e. was a customer subjected to different treatment than another customer in the same circumstances Is there a Difference in race? i.e. between the customer and subject(s) of the complaint Has the difference in treatment been to the Detriment of the customer? i.e. if the customer was treated differently was that a worse service or poorer treatment than others received Has there been an Explanation for these differences available from any source? i.e. would race appear to be the sole or major factor, or was there something about their circumstances that would account for them being treated differently If there is strong initial evidence available that the customer s treatment can be explained by factors other than race then the CRT may choose to refer the complaint for local action rather than referring it to PSU. This type of case would likely include complaints where no specific racist behaviour is referred to but the complainant states, for example, an immigration decision against them such as refusal of Leave to Enter at a Primary Check Point, or a provision of service in itself, indicates implicitly a racist attitude; correct application of the formula test is important. 35

36 7.2.3 If there is any doubt whether an allegation is about discrimination the line manager must refer the matter to CPR for referral; to CRT and possible allocation to PSU. CRT will then make the determination as to whether it requires formal PSU-led investigation. Where an allegation specifically states that an explicitly racist statement was made, CPR will always send this to CRT to arrange a formal PSU-led investigation. In cases of implicit racism, if in doubt, CRT must be contacted. 7.3 Investigation into allegations of criminal behaviour When a complaint alleges potentially criminal behaviour the complaint should be referred to CPR in the same way as serious misconduct complaints. Once the complaint has been allocated to PSU, PSU will then report the allegation to the relevant police service on the customer s behalf. For example, the PSU will report any alleged excessive use of force by e.g. enforcement officers or detainee custody officers, as they constitute allegations of assault In complaints including both criminal behaviour and inappropriate conduct, the investigation of the non-criminal aspect of the complaint may not always proceed where there is an outstanding criminal enquiry. This is to ensure the criminal enquiry is not prejudiced. It is important the Police are notified of criminal allegations at the earliest opportunity to ensure that neither investigation is prejudiced by the other A current live Police investigation is not necessarily a barrier to a PSU investigation proceeding or even concluding, however, close liaison is required. Single points of contact will be appointed, in the PSU, to liaise with a single point of contact in the Police investigation. This will ensure that both parties are fully aware of all relevant information and protect the integrity of each investigation Where specifically requested by the police, the PSU will suspend its enquiries until such time as the police advise it is possible for the PSU investigation to proceed. Due to the nature of criminal investigations, no timescale for the suspension of PSU investigations can be given The PSU investigation will make a finding on the balance of probability. The Police investigation will make a decision on proceeding to charge on the basis of reasonable doubt The police may be approached for information for inclusion in the PSU investigation. This ranges from sharing of evidence, in particular witness statements or CCTV. A PSU investigating officer may also request police custody and property sheets, or any other information that may assist in their investigation The PSU investigation is a civil investigation and not entitled to seize evidence. The Data Protection Act allows the PSU to request it from the police if it has been obtained in the course of a police investigation. It will be down to the individual Police Officer in Charge as to whether they will release this information, as its release may jeopardise their investigation or the safety of a witness or other involved person If the police hold evidence that cannot be released to the PSU investigation, a PSU Senior Investigating Officer will decide if the investigation should be pursued without the evidence. For instance when the evidence will not become available at all, or for such a prolonged time as would place undue hardship on the complainant or staff, or if the investigation should be suspended until the evidence becomes available, for instance on the imminent completion of a trial. 36

37 Professional Standards Unit Investigations 7.4 Who will investigate the complaint? All decisions on who investigates serious / gross misconduct complaints are undertaken by PSU. All investigating officers within PSU are trained and have appropriate level of knowledge, skill and experience to plan and conduct investigations; including those into allegations made against officers who exercise specified enforcement functions. Investigating officers are at least HEO grade or equivalent. The Investigating officers are overseen by Senior Investigating Officers of at least SEO grade or equivalent. The investigating officer will have had no prior social acquaintance with the officer under investigation They will not have had any operational involvement in the circumstances surrounding the complaint They are not obliged to answer questions from interviewees or their representatives about their personal career history or experience The role of investigating officers is: To establish the facts of the complaint and reach a conclusion, on the balance of probability, whether the evidence available substantiates the complaint. To highlight any procedural shortcomings that may become apparent during the course of the investigation In some cases they may be asked to recommend whether there is misconduct case to answer Investigating officers do not decide what action should be taken as a result of their investigation. See 7.12 below. 7.5 File management of serious misconduct cases Where the complaint was received by the Central Point of Receipt, the complaint will have been recorded on CMS; The PSU will ensure that cases allocated to the PSU are updated on CMS to show ownership. On closure the PSU will ensure that the closure date is shown on CMS and a copy of the reply letter is attached to CMS A paper file must also be created for each serious misconduct complaint. Investigators of serious misconduct complaints must: Classify files as Official sensitive and store them securely at all times. Request additional files with a new IMG reference if files become outsized. Hold all files relating to the same case together and, in case they become separated, all files should be marked with the IMG references of the files they are linked with. Keep all paperwork related to the complaint on the file, including the original complaint, the investigation report and a copy of the reply letter to the customer. PSU has the responsibility for creating these files by raising a request with General Registry Completed files will be sent to General Registry, but will be retrieved where necessary for review by the Head of Unit, PPO, IPCC, PIRC or PHSO. Copies of final investigation reports may also be held on the management files of the person(s) whose conduct was in question by their line manager(s). 37

38 7.5.4 If a misconduct complaint file is raised in error and needs to be cancelled a full and detailed minute must be written and kept on the file to explain why the file is being cancelled. (These files are retained in the General Registry store). For example: A complaint mistakenly classified as a misconduct complaint that should be dealt with as a service complaint the minute should state that this is the reason for the cancellation request, why it is being dealt with as a service complaint, who has authorised the reclassification and give the details of the file the service complaint will be kept on A file is raised and then it is realised that a file already exists for the complaint the minute should state this reason and give details of the file that has already been raised Hard copy files for serious complaints should be retained for ten years. The date of intended destruction of the file should be written in the top right hand cover of the file cover A serious misconduct complaint file cannot be destroyed within that ten year period without the authorisation of head of PSU. If a decision is made to go ahead with the destruction of the file the requestor must complete a pro-forma to send to General Registry authorised by the Head of PSU. 7.6 The investigation preparation PSU will draw up the terms of reference for investigating the complaint; in cases where it is appropriate this will be done in consultation with the Independent Police Complaints Commission (IPCC). PSU will appoint a senior investigating officer and an investigating officer to undertake the investigation. In IPCC cases that have a supervised or managed mode of investigation the IPCC must approve the proposed investigation officer. Further advice about IPCC investigations can be found using the following link; IPCC Misconduct investigations The investigation should be proportionate to the matter under investigation. There will be some cases where the facts are not in dispute and others where it is an issue of inference. The amount of investigation, including questioning of all parties, will be greater in these inference cases to establish on balance of probability what has occurred The investigating officer should: Undertake a pre-investigation review to determine a proportionate level of investigation and seek agreement to this from an appropriate manager. If the investigation exceeds, or is expected to exceed, 12 weeks PSU will provide the relevant parties the complainant as a minimum and CPR updated on the progress. Once the 12 week timescale has been reached, the complainant will receive an update letter every 28 days informing them of the reason for delay, progress and anticipated completion date It is essential that, wherever possible, the investigation is undertaken within this timeframe, or sooner, while events are still fresh in the minds of those interviewed and to avoid any subsequent complaint about delay in the process The investigating officer will need to consider the information contained in the complaint to decide who to interview so the full facts can be established. The subject of the complaint and the customer should always be interviewed. There may however be reasons why this is not practical (for example the customer is abroad) but in these situations alternatives such as telephone interviews should be considered. If the investigating officer decides not to interview certain individuals pertinent to the complaint they should provide reasons for this in their report. 38

39 7.6.6 The investigating officer should obtain files, electronic records or papers relevant to the investigation as required. These may include, but are not limited to, completed forms (e.g. reasons for refusal or notice of seizure), notebook entries or witness statements; electronic evidence e.g. CID records, s from POISE and Indigo, text messages and voic on Agency-issued mobile phones; and, CCTV, including from third parties. The investigator will obtain and preserve all relevant evidence if it is available. All information obtained, will be stored and/or shared or disclosed in a manner consistent with internal guidelines and with relevant legislation e.g. the Data Protection Act When deciding which people to interview or obtain evidence from, due consideration` will be given to any witnesses put forward by either party. 7.7 The investigation - communication It is essential that all parties involved with the misconduct investigation process are kept informed about how matters are proceeding. The key communications during an investigation are as follows: Notification Letters PSU will send an acknowledgement letter to the customer within 2 days of receipt of the complaint at PSU. The acknowledgement letter also informs the customer that they have 7 days in which to provide any further relevant information for consideration Once the full details of the complaint have been established the issues being investigated should be put in writing to the subject of the complaint. This notification letter should also state that the officer may have committed a criminal offence or behaved in a manner which would justify the bringing of disciplinary proceedings. Details about the complaint usually a copy of the complaint letter, an excerpt from it, or a summary of its contents will be included with the letter.. Some complaints/allegations are made against a specific team and it will not be clear which member of the team is the actual subject of the complaint. In these cases the notification letter will be amended to reflect this. Where a specific individual has not been identified as the person at whom the complaint (s) are made, all issues mentioned in the complaint will be put to all the staff members being interviewed, so that those involved have the opportunity to respond to all the allegations In investigations under IPCC arrangements the subject of the complaint, has a right to make a submission to the investigator once they have received the notification letter. The investigator has a duty to consider that submission. It is good practice to follow these procedures on a voluntary basis for non-ipcc cases. Any submission does not remove the ability of the investigating officer to interview the staff member(s) concerned. Suspension from duty Where the complaint is about a contractor within Detention Services the PSU sends a copy of the complaint letter to the relevant contractor s Complaints Co-ordinator for forwarding forward to the contracted staff. It is the responsibility of Detention Services to consider whether any contracted staff accredited to work with detainees should have their accreditation suspended pending the outcome of the investigation Contractors without accreditation cannot work as a detention custody officer with detainees. 39

40 7.7.6 In all cases, apart from Detention Services complaints, the PSU will write to the relevant Assistant Director (AD) to inform them of the complaint received and the staff members it concerns (if identified at that stage). It is the AD s responsibility to inform the relevant line managers within their command and in liaison with HR Business Partner or Advisor, decide whether to suspend any member of staff pending further enquiries. The PSU will send an initial letter informing the staff member of the complaint as soon as possible. Invitations to interview Once the allegation has been set out in the notification letter, the investigator will arrange any interviews required with the customer(s), the subject(s) of the complaint and any witnesses within an agreed timescale. If the subject(s) of the complaint wishes, they can provide a written response to the allegations that can serve as a basis for, not an alternative to, the interview. However, the investigator will inevitably ask additional questions during the interview until they are satisfied that all relevant information has been obtained. The investigating officer will determine who the relevant people are to interview. If the complainant or staff member have any names of people they wish to be interviewed, these should be identified by the investigating officer at an early stage of the investigation, for consideration for interview. Staff members should volunteer this information at the earliest opportunity. Where alternative strong evidence exists or there are large numbers of witnesses, it may not be necessary to interview everyone identified, so long as the evidence gathered is proportionate and unbiased In keeping with the principles of the invitation letter to a member of staff, as the person being complained about, will normally give at least five days notice of an interview and advise them of their right to be accompanied by a trade union representative or workplace colleague. This may not always be possible where significant allegations have been made in the complaint and an immediate response is required by the business however investigating officers will try to assist with this wherever possible. There is no right for a staff member being interviewed as witnesses to be accompanied by a trade union representative; however the investigating officer will consider any requests to be accompanied. Where ever possible the notification letter sent out to staff members will make it clear in what capacity they are to be interviewed, either as the subject of the complaint or a person who may be able to assist with the investigation (witness). Details of the rights to be accompanied in certain circumstances are set out in section 12 of Discipline How to guidance and in HIN03 Discipline Investigation Interview - discipline template letter on Horizon. Update letters Although it is the intention to complete all investigations within 12 weeks this will not always be possible. If a case is delayed beyond 12 weeks everyone involved should be informed in writing of progress and, if possible, a revised timescale for completion, at least every 4 weeks. (In IPCC investigations all parties will also be updated in writing at least every 4 weeks from the outset of the investigation.) 40

41 7.8 The investigation process interviews and evidence gathering The purpose of the interview is to establish the facts of the case. All aspects of the complaint and any corroborative evidence must be put to the subject(s) of the complaint during the course of the interview and they should be given every opportunity to respond to each individual allegation. If there are allegations against more than one officer they should be interviewed separately. The PSU Investigating Officer may choose to disclose other evidence available to them at interview. This will be done in line with the Disclosure guidance at section Ideally witnesses should then be interviewed either face to face or over the telephone, depending on the extent of the information sought, with due consideration given to any witnesses put forward by either party. If it is not practicable to interview the witness the investigating officer may require a written statement instead All interviewee should be asked if they are fit and well enough to be interviewed before the interview is begun. Interviews themselves should not last longer than an hour and a half without a break. After an agreed interval the interview can then recommence. The investigator should also allow other reasonable requests for breaks e.g. to allow private consultation between the interviewee and their representative It is important that an accurate record of the information provided at interview by customers, subject(s) of complaint and witnesses is produced. How the information is recorded will be decided by the investigating officer in advance. The investigating officer s decision is final and must be co-operated with. In the majority of cases interviews will be recorded so that a full objective record of the interview is available for reference and audit. The recording will be used to prepare either a full verbatim transcript, interview summary or a statement. The interviewee will be provided with a copy of the recording on request (unless they waive that entitlement) and a copy of the transcript or statement which they will be asked to agree with amendments if necessary If it is not possible for the interview to be recorded, the investigating officer or an independent person appointed by the investigating officer will take a written note of the interview. The notes will then be used to draft a statement which will be provided to the interviewee to sign off as an accurate summary The investigating officer must remain objective and act in the interests of natural justice and fairness and should bear in mind that those interviewed are likely to be apprehensive. Equal consideration should be given to all accounts. Assumptions and conjecture should be avoided and an officer s previous conduct or a customer s immigration history should not be taken into account unless it is fully justified in having an important bearing on the case All staff members interviewed in connection with the complaint will be expected to give the investigating officer their full co-operation and be open and honest in providing their account of events. Any attempt to obstruct the investigation process by any member of staff could lead to the consideration of misconduct action by line management. Refusal to attend interviews for example by the subject of the complaint or by witnesses would be almost always interpreted as an attempt to obstruct the investigation. Any attempt to obstruct the investigation process by a trade union representative should be reported to the HRD Employee Relations Team who will take the matter forward under agreed procedures. 41

42 This also applies if at any time during the investigation it becomes apparent to, or is reported to, the investigating officer that there has been an attempt to intimidate or interfere with witnesses. If this occurs it should be reported to the CSO Responder Hub, Border Force Complaints and Correspondence or Detention Complaints Section who should refer the matter to the individual s line manager. The investigating officer should also ensure there has been no breach of confidentiality or collusion between the subject(s) of the complaint and witnesses. If any breach of confidentiality or collusion is suspected this should be referred to in the investigating officer s report. Grievances raised during the course of a discipline investigation will normally be considered under the Grievance Resolution policy and procedures. Grievances which are raised with the intention of evading or detracting from legitimate investigation of the complaints will be considered malicious The investigating officer should explain to the subject(s) of the complaint that they can be accompanied by one recognised trade union representative or one trade union official or one workplace colleague if they so wish. The role of the representative is to provide support, ensure the officer is aware of procedures and is treated fairly. They are not there to answer questions on the officer s behalf or behave in a way that prevents the investigating officer from establishing the information required. 7.9 The investigating officer s report The investigating officer should submit a full report to the business area responsible for the staff member subject to the complaint. The report must set out the following: The terms of reference for the investigation Details of evidence obtained and witnesses interviewed (with the reasons listed if was not appropriate) and observations where appropriate on the relative credibility of the evidence A summary, consideration and balancing of the evidence addressing each point of the complaint objectively and an assessment of the extent to which they are justified If the issue turns solely on the credibility of the parties involved this should be made clear with comment made as to why the account of one party is given greater credence than the other. Whether any local procedures or instructions might need to be changed or modified as a result of the conclusions reached. Whether there is any suspected breach of confidentiality or collusion. A conclusion based on the balance of probability of whether the complaint has been substantiated or not. Details of any recommendations made The investigating officer will not make conclusions as to whether misconduct has been committed, only whether, on the basis of the evidence and a balance of probability, there is a case to answer in respect of their conduct. In IPCC cases where complainants have a right of appeal, the line manager will inform the investigating officer whether, on the basis of the investigation report, they intend to hold a misconduct hearing. This is required so that the investigating officer can inform the complainant and enable them to consider whether they wish to exercise their right of appeal The investigation process Disclosure of evidence It is in the nature of investigations that more evidence becomes available to the investigating officer during the course of an investigation than is available at the beginning when 42

43 only a complaint letter or form has been received. If this arises the terms of reference may require revision Before an interview, the subject of the complaint should have been provided with sufficient evidence to allow them to make representations to the investigating officer. This means the investigator will provide the subject of the complaints with details of the complaint e.g. time, date, location, persons involved; and the actions, conduct or behaviour which has been alleged Beyond that, the investigating officer determines at what stage any further evidence should be provided to relevant parties. The investigating officer will consider, for example, whether disclosure of certain information before an interview may lead to the contamination of the evidence of the interviewee or have other adverse effects on the investigation The investigating officer must in all cases, put all allegations and corroborative evidence to the subject of the complaint at some point during the investigation process in the spirit of natural justice. The subject of the complaint must have the opportunity to respond fully The investigation report and annexes must include all the evidence available to the investigating officer. It will also include how the consideration of this evidence led to the conclusion about the alleged misconduct. Detailed findings of the report will be provided to the subject of the complaint by their line management as soon as possible Any disclosure made by a child which indicates safeguarding concerns should be reported to the police or the local authority children s social services / social care The outcome of the investigation Once the investigation has been completed, the PSU will, send a response to the complainant unless the relevant Director has indicated that they wish to send the reply.. This will include detailed findings of the investigation, on each aspect of the complaint. It will also set out any relevant review and appeal procedures e.g. to the Head of PSU, Independent Police Complaints Commission (IPCC), Prisons and Probation Ombudsman (PPO) or Police Complaints Commissioner for Scotland (PIRC) The line management of the employee being investigated will be provided with a copy of the investigation report, via their Grade 7 or above, to enable them to decide what action to take i.e. whether or not they intend to hold a disciplinary hearing. IPCC cases In IPCC cases the complainant has a right of appeal against a local or supervised IPCC investigation. This additional guidance applies. The appeal must be made within 28 days of receipt of the Home Office letter which informed the complainant of the investigation outcome. There is also a right of appeal if The Home Office fails to notify the IPCC of a relevant complaint or if The Home Office fails to record such a complaint. The appeal must be made within 28 days of the date on which notification of that failure is made or sent to the complainant. There is no right of appeal against an IPCC independent investigation or an IPCCmanaged investigation. The complainant has the right to appeal to the IPCC on the following grounds: 1. Failure to notify or record a complaint. 43

44 2. Appeal with respect to an investigation: Not being provided with adequate information (either about the findings of the investigation or about the taking or non-taking of action; including disciplinary action) The findings of the investigation The determination as to whether the subject of the complaint has a case to answer Any determination as to whether or not actions recommended in the report should be taken or not taken Any determination not to refer the investigation report to the Director of Public Prosecutions (CPS) If IPCC upholds part, or all, of the appeal it may ask for: the complaint to be re-investigated; it may request that further information be provided to the complainant; or it may direct the Home Office to undertake certain actions, which could include requiring that a disciplinary hearing be held. The IPCC can not direct the outcome of such a hearing only that it be held. In order to implement the arrangements, investigation reports must state clearly whether the fact that a complaint has been substantiated, results in a case to answer concerning serious misconduct. The PSU should send the investigation report to the relevant line manager(s) and then ask the line manager(s) of the subject(s) of complaint to confirm what disciplinary action they intend to take having read and understood the investigation report. Once the line manager has confirmed what action, if any, they are taking, it is the responsibility of the PSU to inform the complainant as to whether or not a disciplinary hearing is being undertaken. The complainant then has 28 days in which to appeal against that intended action in practice this is most likely to be an appeal against a decision not to hold a disciplinary hearing after PSU has indicated that there is a case of serious misconduct to answer. The line manager should be advised not to arrange a disciplinary hearing until PSU confirms to them that either: no appeal has been made; an appeal has been made but IPCC has not upheld the appeal; or an appeal has been made which has been upheld by IPCC but the outcome does not pertain to proposed disciplinary action. In IPCC cases the Investigating officer should ensure their investigation includes: Information to show that relevant parties were updated on the progress of the investigation at least every 4 weeks from receipt of the complaint. All relevant information to address the complaint is included in the investigation report. A reply letter that contains sufficient information from the investigation report to address the complaint whilst maintaining the appropriate security on Intelligence matters and personal data. 44

45 A reference in the final reply letter to show that matters outside the remit of PSU are being addressed and who is addressing them. Failure to do so may result in PSU being asked to respond on them. Evidence to show that all relevant enquiries have been made. For example, if there are witnesses to an incident that the investigator is informed of, or could reasonable be expected to have known of, and decides not to obtain information from them, the investigator would need to explain the reason for their decision in the report. Unbiased gathering and assessment of evidence. Ensure that all evidence both for and against subjects of the complaint are fully considered. When the credibility of sources of information are important to the findings, the investigator should explain why more credence was given to one party rather than another. An outcome that is based on a fair assessment of evidence. The final decision on whether a complaint is substantiated or not must be consistent with and flow from the evidence referred to in the report. An outcome, including whether disciplinary action is being recommended. The report must be clear and transparent to show why the complaint is substantiated or not. This will allow the complainant to understand how the investigator came to their decision Once the report is completed the investigating officer will write to the customer advising them of the investigation s findings, The letter should state that if they are dissatisfied they should seek a review by the Head of PSU. If applicable, the letter should also inform them of any right of appeal to the Prison and Probations Ombudsman (PPO), Independent Police Complaints Commission (IPCC) or the Police Complaints Commissioner for Scotland (PIRC) (the customer must have first sought a Head of Unit review before they can appeal to the PIRC) and include any relevant leaflets for doing so The relevant Assistant Director (AD) will be notified of the outcome of the investigation and provided with a copy of the report and reply letter. The AD will be responsible for ensuring the relevant managers and those subject to the complaint are informed of the outcome and the review process In Detention Services cases, the completed report and a copy of the letter to the complainant should be sent to the Detention Services Complaints Section who will be responsible for sending copies out within Detention Services, including to the relevant contractors and, where appropriate, to the Independent Monitoring Board. All findings should also be shared by the Investigating Officers with the line management of the subject of the complaint, ordinarily Assistant Director for the operational office or Immigration Removal Centre (IRC) manager concerned. Data Protection Act and Freedom of Information Act requests The investigating officer s report and witness statements and any other documents gathered during the course of the investigation are management documents. These documents contain personal information about individuals that would be considered for disclosure under the Data Protection Act (DPA) or under Freedom of Information (FOI). Requests for this information would need to be considered on a case by case basis in discussion with the Data Protection Unit, FOI team or the Information Access Policy Team. See also section 8.4 and 8.5 of this guidance Staff members who are the subject of a complaint are entitled to see all relevant evidence gathered in the course of the investigation, subject to redaction in specific sensitive cases. PSU are not required to disclose witness statements to other witnesses unless strictly necessary to assist with the investigation 45

46 Additional papers (for example, copies from casework files) should not normally accompany an investigation report unless the investigating officer considers it essential. The issues within these papers should be fully addressed within the body of the report Possible action following an investigation Discipline action When an allegation is substantiated the line manager is responsible for considering whether action under the discipline policy is appropriate (see the Discipline: How to guidance). With regard to Detention Custody Officers (DCOs) employed by contractors, any disciplinary action is one for the contractor, however, the decision to suspend a DCOs accreditation is made by the local manager, with a final decision taken by Detention Services Accreditation Team The HRD Employee Relations Team must be consulted immediately if discipline action is being considered in relation to a trade union representative and a senior official in the relevant union will be notified by them. Discipline action against a trade union representative can lead to a serious dispute if it is perceived to be linked to legitimate trade union activities Where a complaint concerning harm, or the risk of harm, to a child or vulnerable adult is substantiated, and the subject of the complaint is removed from their post, information must be referred to the Independent Safeguarding Authority (ISA). Further guidance can be found using the following link: Guidance on referrals to the ISA Under IPCC regulations where a complaint has been referred to and overseen by the IPCC, the IPCC has the power to direct the Home Office to hold a discipline hearing if it feels it to be appropriate. It cannot however direct the outcome of that hearing Similarly, the PIRC has the power to give a direction to Home Office to reconsider a complaint or any part of it. Under the voluntary arrangements with PIRC, the investigator should address any issues brought to their attention by PIRC Any complaint alleging a criminal act is referred to the police by the PSU, for their action. If the PSU establishes during the course of an investigation that a criminal act may have occurred, an investigation will be suspended and a referral made to the police, prior to any recommencement of PSU enquiries A police force may inform the PSU that they intend to take no further action but ask to be informed of the PSU s investigation outcome. If during the course of the investigation it becomes apparent that further evidence is now available that may influence the police s decision to conduct a criminal investigation, then the PSU will re refer the case back to the police force for consideration of the new evidence available Where the police have decided to take no further action and asked to be informed of the outcome of the PSU investigation, the PSU will advise of the outcome of the investigation, and in a substantiated complaint will provide all evidence gathered to the police to assist in their enquiries. Other action Investigators will always consider whether there are lessons to be learnt by anyone who was the subject of the complaint or by the organisation more widely and make recommendations, whether or not the complaint was found to be substantiated. Local line management will also consider those recommendations and decide how to take these forward and whether advice, guidance or further training is appropriate. 46

47 CSO reviews recommendations made by PSU and identifies those of national significance and looks for common themes. It then works with professionalism leads across the Immigration Enforcement, UK Visas & Immigration or Border Force to ensure actions are taken to improve business processes or remedy weaknesses Risk management Serious/ gross misconduct complaints can be anything from low to high risk with potential for serious reputational damage to the Home Office as well as potential legal action taken against us. A risk assessment of each case will need to be conducted. PSU should assess each misconduct case for potential risk upon receipt of the case and upon completion of the investigation. The Immigration and Borders Secretariat should be notified whenever there is a risk of adverse publicity Learning lessons The Assistant Director responsible for the business area which generated the complaint should review the report into the serious / gross misconduct investigation. The report should be reviewed as soon as possible after it is available to ensure the lessons identified and the recommendations made by investigating officer are considered and actioned The lessons learned from serious / gross misconduct investigations will range from looking at individual line management through to the operational processes used by Immigration Enforcement, UK Visas & Immigration and Border Force. It is important for each unit to keep a detailed record of the lessons learnt from each investigation and what action they have taken to prevent its re-occurrence CRT Lessons Learned prepares reports on lessons learned to bring issues of national impact to the attention of Regional Directors, Heads of Profession and other senior managers. It also holds monthly meetings and a quarterly lessons learned meeting with representatives of relevant business areas to agree appropriate actions in line with the investigators recommendations and monitor delivery of those actions against agreed timescales. Lessons Learned can be contacted via [email protected] Review process A customer has up to 1 month from the date of the substantive reply to their complaint to challenge the findings. It is important that a customer responds within this timeframe due to the storage and archiving of such cases. (See 4.18). Unless the customer provides evidence as to why an investigation was flawed or the conclusion unsound a review will not be undertaken. Where the customer does provide sufficient grounds for reviewing a serious misconduct investigation these must be raised with the Head of PSU The customer retains the right to take their complaint to the Parliamentary and Health Service Ombudsman (PHSO) or, in the case of detainees, to the Prisons and Probation Ombudsman (PPO) or where the complaint involved an Immigration Enforcement, or Border Force officer exercising specified enforcement functions the Independent Police Complaints Commission (IPCC) or the Police Investigations and Review Commissioner (PIRC). See sections 3.8, 3.9, 3.10 and section 9. All replies to requests to reviews by complainants should include contact information for the PHSO, PPO, IPCC or PIRC. Back to top Back to content 47

48 Section 8 Special circumstances 8.1 Closing complaints before resolution There are some circumstances in which complaints may be closed after registration without a substantive reply being provided. These are: Complaints where the customer has not provided enough information and it is not possible to even begin any necessary investigation of the complaint. In these cases the Responder Hub should write to the customer requesting more information. Where no information is provided within the required timescale the case should be closed on CMS. If at a subsequent date the customer provides sufficient information to investigate then a new complaint should be raised on CMS. Service complaints more than three months old where the customer has been removed from the UK and the department is out of contact. If the complaint is solely about the delay in making a decision, the complaint can be closed when a decision is made on the case. The customer should be told, either in the decision letter or by separate letter, that their complaint has been closed. If there are other elements to the complaint they must be addressed separately In these circumstances a case can be marked as closed and resolved but a clear audit trail should be kept explaining why the complaint could not be provided with a full substantive response e.g. by typing the reasons into Additional Information (Public) text box the Attached Response documentation page on CMS Serious / gross misconduct cases should not be closed without an investigation even where circumstances limit the type of investigation that can be made. 8.2 Action while a complaint is under investigation The fact that a complaint has been made and is under investigation should not interfere with the consideration of the immigration or Customs aspects of a case. Removal or excise seizure action, for example, should not be postponed pending the outcome of the complaint unless it is likely that criminal charges may be brought and the customer required as a witness. In cases of doubt the business area concerned should consult with the Professional Standards Unit (PSU). 8.3 Complaints received in grounds of appeal Complaints about service received or the conduct of members of staff can be contained in grounds of appeal. In such cases the fact that a complaint has been lodged should not delay the appeal process; nor should it be assumed that the complaint would be dealt with as part of those procedures. Preparation of the appeal statement should continue in the normal way, with the following sentences being included: "Included in the grounds of appeal was a complaint about the service provided by /conduct of Immigration Enforcement/ UK Visas & Immigration and/border Force [delete as appropriate] staff. This is being dealt with separately under the UK Visas and Immigration/Immigration Enforcement/Border Force s [delete as appropriate] complaints procedure." A copy of the grounds of appeal, together with copies of all other relevant correspondence/minutes, and a note explaining the current situation, should be sent to the relevant Responder Hub (CSU). The appeal should not be delayed and appeal statements should be prepared, and the appeals process adhered to in the normal way. 48

49 8.3.3 The area dealing with the complaint will liaise with the relevant Presenting Officers Unit (POU)/Post Seizure Unit and ensure the complaint is investigated and a reply prepared to cover the complaint aspect of the case Where the resolution of the complaint casts doubt upon the validity of the decision under appeal it will be for the business area and the POU/Post Seizure Unit to agree the appropriate action. Cases of doubt should be discussed with the CSU. 8.4 The Data Protection Act A customer may refer to the Data Protection Act (DPA) and request details of personal information held on paper or in computer records. Under the Act such requests have to be processed within strict guidelines and within a time limit of 40 days from receipt of a properly made request. (Requests must be made in writing and the customer must also pay a fee of 10. There is no obligation to process any request for subject access until these two requirements have been met.) The Immigration Enforcement /UK Visas & Immigration faces legal action if this is not adhered to. All such cases should be brought to the immediate attention of: Data Protection Unit 17th Floor, Lunar House, 40 Wellesley Road Croydon, CR9 2BY Fax: [email protected] Request for access to such information should not be dealt with by any other section. 8.5 Freedom of Information Act The Freedom of Information (FOI) Act came into force on 1 January It provides the public with a right of access to information held by all public authorities. Any request for such information should be responded to within 20 working days, starting on the date the request is received by Immigration Enforcement, UK Visa & Immigration or Border Force A User s Guide for dealing with FOI requests is available on Horizon. Enquiries can be addressed to: Information Access Team Information Management Services 2nd Floor, Lunar House 40 Wellesley Road Croydon CR9 2BY 8.6 Complaints mentioning legal action and County Court claims When the CPR or Responder Hub or CSU receives a letter from solicitors mentioning pre action protocol or letter before action these should be faxed or ed as soon as possible, to Litigation Operations for their consideration. It will be for the Appeals & Litigation Operations to decide who should then deal with matter e.g. it may return simple matters to the business area for consideration as the legal representative is using the complaints procedures or in other cases it will instruct Treasury Solicitors. 49

50 8.6.2 Claims for compensation following on from these letters may be considered once the issue in the letter has been concluded. It may either fall to the Responder Hub to deal or remain with the Treasury solicitors (T/Sols) depending on the nature of the case/legal issue/ amount of compensation being claimed Claims for compensation in the County Court are governed by the Civil Procedure Rules and in particular the practice direction relating to pre-action conduct. A customer must have made a complaint to the Immigration Enforcement, UK Visas & Immigration or Border Force given reasonable time for an ex gratia payment to have been determined and paid before consideration will be made to paying court fees and other costs incurred Before commencing proceedings for compensation against Immigration Enforcement, UK Visas & Immigration and Border Force each party must exchange sufficient information about the matter to; allow them to understand each other s position and make informed decisions about settlement and how to proceed, and must make appropriate attempts to resolve the matter without starting proceedings It must be remembered that the obligation under the practice direction extends both ways, namely that the Home Office must engage with correspondence or any approach made before proceedings are commenced i.e. it is important to respond to a pre-action letter The court has the power to ask the parties to explain what steps have been taken to resolve the issues before the case can proceed before the court and if the practice direction has not been complied with the court can impose sanctions such as suspending the proceedings until the practice direction is complied with or ordering the non-compliant party to pay the other party s costs in the court proceedings. The court however is required to act proportionately and will therefore only impose such sanctions where the effect of non-compliance justifies it Immigration Enforcement, UK Visas & Immigration or Border Force cannot insist that a customer adhere to the requirements of the practice direction as outlined above. The customer may be penalised by the court if they do not adhere to it but they are not necessarily prohibited from bringing proceedings if they do not. Back to top Back to contents 50

51 Section 9 Complaints involving the Parliamentary and Health Service Ombudsman (PHSO) 9.1 Introduction The Parliamentary and Health Service Ombudsman (PHSO) investigates complaints that government departments, and a range of other public bodies in the UK, have acted improperly, unfairly, or have provided a poor service The PHSO is independent of the Government and is not a civil servant. She is an officer of the House of Commons, appointed by the Queen, and reports to Parliament. The PHSO has statutory responsibilities and powers to report directly to Parliament In February 2009 the Ombudsman republished her Principles of Good Administration, Principles of Good Complaint Handling and Principles for Remedy. These are broad statements of what she considers public bodies should do and how to respond when things go wrong. The same six principles apply to each of the three documents; they are: Getting it right Being customer focused Being open and accountable Acting fairly and proportionately Putting things right Seeking continuous improvement For more information please see: The PHSO s underlying principle is to ensure that the service provider restores the customer to the position they would have been in if maladministration had not occurred. This may include financial redress and/or an apology. They may also recommend that procedural changes are made to avoid similar problems happening again The PHSO's recommendations are not binding but there is an expectation that public bodies will abide by them. If the PHSO feels that Immigration Enforcement, UK Visas & Immigration or Border Force have failed to remedy an injustice, or is not satisfied with our response to their enquiry, the PHSO may draw the matter to the attention of Parliament. From time to time the PHSO also reports specifically on individual examples of maladministration. 9.2 Overview of PHSO complaints process There is an expectation that customers will have followed the complaints procedure set out in this Guidance to its conclusion before they refer their complaints to the PHSO. Customers should lodge their complaint with the relevant Member of Parliament within 12 months from the day on which their attempts to resolve the matter with Immigration Enforcement, UK Visas & Immigration or Border Force was concluded e.g. the date they received a final substantive reply letter Complaints must be made through a Member of Parliament (MP) and cannot be made by customers direct to the PHSO. It is the MP s decision whether to refer a complaint to the PHSO 51

52 and the PHSO is not obliged to investigate every complaint that has been referred to her by an MP If the PHSO decides to launch a full investigation into a complaint against the Immigration Enforcement, UK Visa & Immigration or Border Force it will send a summary of the complaint to Permanent Secretary and the relevant principal officer (i.e. the Director General responsible for Immigration Enforcement, the Director General responsible for UK Visas & Immigration and the Director General responsible for Border Force) to give them the opportunity to comment; it will state exactly what further information is required or ask for comments The PHSO can contact the relevant principal officer directly about cases which appear capable of swift resolution and/or raise key or systemic issues. In the main these cases are sent direct to Parliamentary and Health Service Ombudsman (PHSO) team which is part of Customer Service Operations (CSO) in Croydon. CSO PHSO team, will alert the relevant business area directly, ask for a response to be prepared, and return the response to PHSO within the agreed deadline The PHSO investigator can inspect Immigration Enforcement, UK Visa & Immigration or Border Force files and interview relevant officers in person, either at PHSO or Immigration Enforcement, UK Visa & Immigration or Border Force offices. They may also conduct interviews by telephone. When it has considered the information Home Office operational business areas have provided, the PHSO will send a copy of her draft report and findings, giving the business areas a further opportunity to comment on the facts and provisional findings before the final report is issued. The CSO PHSO team, co-ordinate between the PHSO and business areas which have an opportunity to comment and agree or disagree with the recommendations The PHSO's report sets out whether it has found maladministration causing injustice and whether that injustice has been remedied. If it has not she will recommend what should be done to put things right. 9.3 Premature complaints The PHSO receives a number of complaints where customers have not received a substantive response to their complaint from Immigration Enforcement, UK Visas & Immigration or Border Force in accordance with published service standards. In such cases the PHSO will refer these complaints back to Immigration Enforcement, UK Visas & Immigration or Border Force for resolution rather than launching its own investigation. 9.4 Handling premature complaints The PHSO will details of the complaint to PHSO team CSO in line with existing procedures for handling PHSO cases. The PHSO team will acknowledge and allocate the cases to the named contact in the relevant business area or Responder Hub as appropriate within two working days of receipt The business area or Responder Hub must deal with the complaint in accordance with the standards set out in sections 4, 5, 6 and 7 of this guidance and a copy of the substantive response should be ed to the CSO PHSO team Where a substantive response has already been sent (but which the customer has not received) the part of the business which dealt with the complaint originally should send the customer a copy (copying to the CSO PHSO team) If there are next steps arising from the premature complaint such as an apology letter or an undertaking to make a decision on the case CSO PHSO team, will arrange with the business area or CSO Responder Hubs, Border Force or Detention Services for it to be done within an 52

53 agreed timescale. The business area or CSO Responder Hubs, Border Force or Detention Services depending at what point the case has reached, should provide evidence to PHSO team to demonstrate that any next steps have been completed. 9.5 Requests for further information The PHSO sends requests for further information in cases where she is deciding whether to launch a full investigation into a complaint. In some cases the information supplied enables the PHSO to conclude that a full investigation is not necessary. It also gives Immigration Enforcement, UK Visas & Immigration or Border Force the opportunity to resolve matters. 9.6 Handling requests for further information The PHSO will the request for information to CSO PHSO team, in line with existing procedures for handling PHSO cases. CSO PHSO team will acknowledge and allocate the request to the relevant contact within the business area or Responder Hub as appropriate within two working days of receipt The business area or Responder Hub as appropriate is responsible for returning the requested information to the CSO PHSO team within five working days The CSO PHSO team will draft a response and reply to the PHSO within two weeks of the request being received from the PHSO If there are next steps arising from the request for further information such as an apology letter or an undertaking to make a decision on a case, PHSO team will arrange with the business area, or complaint handlers depending on the circumstances of the case for it to be done within an agreed timescale. The business area should provide evidence to CSO PHSO team, that any next steps have been completed. 9.7 Full investigations Full investigations tend to have three stages in the process: Proposal to investigate Draft report Final report In some cases there might also be some further enquiries following the Home Office s response to the initial enquiry If the PHSO decides to fully investigate a complaint against Immigration Enforcement, UK Visa & Immigration or Border Force an investigator will the initial enquiry to the relevant Permanent Secretary for immigration matters, copied to PHSO team, CSO and relevant Director General, summarising the complaint, asking specific questions and requesting the Immigration Enforcement, UK Visas & Immigration or Border Force provide a response. The PHSO usually asks us to respond to the enquiry within 10 working days. 9.8 Handling full investigations The CSO PHSO team will acknowledge and allocate the case to the contact within the relevant business area copying in the relevant Director and the appropriate Responder Hub within two working days of receipt The business area should draft a reply to PHSO s enquiry ensuring that the draft reply covers the following: 53

54 Chronology: The PHSO usually asks for a full chronology of the customer s immigration history and the Immigration Enforcement, UK Visas & Immigration/Border Force s dealings with them. Even if a chronology has not been requested it is good practice to provide one as it will enable the complaint to be put in context, establish why certain actions were taken, and reach a balanced conclusion about the Immigration Enforcement, UK Visas & Immigration s or Border Force s role in events. Answer all questions fully: Be objective even if it does not reflect well on Immigration Enforcement, UK Visas & Immigration or Border Force. In some cases it will not be possible to fully explain why an error was made or why a particular course of action was taken (for example when a file contains inadequate or incomplete minutes). If it is not possible to fully explain the actions of Immigration Enforcement, UK Visas & Immigration or Border Force staff, this should be honestly stated. Identify whether correct procedures have been followed: It is good practice to set out any actions taken against the policies or procedures that were in place at the time. If the response states that a particular course of action was taken because of a policy that was in place at the time the PHSO should be provided with a copy of that policy. An explanation should always be given as to whether the correct actions were taken. Explain delays: Full explanations of any delays that have occurred in cases should be provided. If cases have been caught up in any backlogs then a full explanation should be given of how and when these backlogs formed; how many cases are caught up in the backlog; what steps are being taken or have been taken to address the situation; what has been done to inform applicants of the situation (e.g. notices put on website, Contact Centres being informed so they can inform applicants when contacted, informing applicants when they write in); and if there are any timescales in place for the backlog to be cleared. Be consistent: Responses to the PHSO should be consistent. Many PHSO complaints involve the same issues, such as delay. If lines taken in previous cases relating to similar, or the same, are to be reiterated, checks should be made to ensure they are still relevant and accurate. Remedies: o If Immigration Enforcement, UK Visas & Immigration or Border Force accepts that a customer has suffered as a result of its maladministration a remedy should be offered in the response to the customer (e.g. if a customer has been unable to claim benefits because documents confirming a grant of Indefinite Leave to Remain (ILR) were not served, the Department for Work and Pensions should be contacted and asked to consider making a payment for backdated benefits.) o Consider if a consolatory payment is appropriate even if the PHSO has not specifically asked for it. Guidance on consolatory payments can be found in section 12in particular section o Was the correct decision on the case made (e.g. was someone granted discretionary leave but actually, upon review, should have been granted ILR)? The business area or relevant Responder Hub as appropriate should return the draft reply and the customer s files to CSO PHSO team, within one week of the case being received by Immigration Enforcement, UK Visa & Immigration or Border Force. The PHSO team will quality assure the draft and send the final reply to the PHSO. 54

55 9.8.4 When the PHSO has considered our response it may have further questions. If this is the case, the investigator will these to the CSO PHSO team and, will usually, specify when a response is required. The CSO PHSO team will acknowledge receipt and forward the questions to the relevant business area or Responder Hub as appropriate within two working days and agree a deadline for when the response needs to be provided. The business area or Responder Hub as appropriate is responsible for returning the response to the CSO PHSO team, within the agreed deadline, who will in turn submit it to the PHSO When PHSO has considered the full response it will send the relevant principal officer, copied to the CSO PHSO team, their draft report of their findings by and ask for comments, usually within two weeks. The CSO PHSO team will acknowledge receipt of the report and forward it to the relevant business area or Responder Hub as appropriate within two working days of receipt agreeing a timeframe for comments to be returned, usually within one week. A copy of the draft report will also be copied to the relevant Director. The business area or Responder Hub as appropriate is responsible for returning the comments to the CSO PHSO team, within the agreed deadline, who will in turn submit them to the PHSO The business area should pay particular attention to the following: That the PHSO has interpreted the Immigration Enforcement, UK Visas & Immigration/Border Force s response correctly. That the dates referred to in the report are accurate. That any legislation, immigration rules, casework guidance, Immigration Directorate Instructions referred to in the report have been correctly interpreted That any recommendations made by the PHSO e.g. an apology letter, redress issues, reviewing decisions, reviewing guidance can be dealt with within the timescale set down by the PHSO. If not an explanation will need to be given and a new timescale suggested When the PHSO has considered the comments it will send the relevant principal officer, copied to the CSO PHSO team, a copy of its final report by . CSO PHSO team will acknowledge receipt of the report and forward it to the relevant business area or Responder Hub as appropriate within two working days of receipt. The CSO PHSO team will also send a copy to the relevant Director If Immigration Enforcement, UK Visas & Immigration or Border Force accepts that the customer suffered an injustice arising from maladministration the CSO PHSO team, will liaise with the business area with their response to the customer. The letter should identify any errors, offer an apology and explanations and, where appropriate, offer the customer the agreed financial redress. In cases where financial redress is offered the PHSO will confirm whether it is accepted by the customer and will obtain payment details. The PHSO team, CSO will liaise with the business area or Responder Hub as appropriate to ensure payment is made within agreed timescales. The CSO PHSO team will also liaise with business areas to ensure other recommendations e.g policy changes are considered as appropriate The CSO PHSO team will be responsible for ensuring that all recommendations made by the PHSO in its final reports are taken forward and will provide evidence to the PHSO that the recommendations have been complied with. Back to top Back to contents 55

56 Section 10 Unreasonably persistent customers and unacceptable behaviour The Home Office are committed to dealing with all complaints made by or on behalf of our customers fully, impartially and quickly and expects customers to work with us to help resolve their complaints There are some situations where a customer s behaviour or actions are unacceptable to Immigration Enforcement, UK Visas and Immigration or Border Force, or where it would be inappropriate for complaint handlers to undertake any significant enquiries It would not be appropriate to devote significant time and resources to investigating matters which preliminary enquiries have shown to be manifestly unfounded. The decision not to undertake further investigation should be taken by the SEO / Grade 7 business lead (business), PSU in consultation with the Responder Hub / as appropriate : Un acceptable behaviours or actions by the customer will fall into two main categories Behaviour that is threatening, abusive or offensive. The Home Office does not expect staff to tolerate this behaviour from customers. This principle extends to written as well as verbal communications Customers who, because of the frequency of their contact with the Home Office or their making of frivolous or vexatious complaints, may hinder effective consideration of their own or other people s complaints. These are termed unreasonably persistent customers When a customer s behaviour is considered unacceptable they will be told why their behaviour is unacceptable and they will be asked to change it. If the unacceptable behaviour continues action will be taken to restrict the customer s contact with the business Where behaviour is so extreme that it appears to threaten the immediate safety and welfare of staff, consideration will be given to other options, which may include, for example, reporting the matter to the Police or taking legal action. In such cases prior warning of that action will be given to the customer The decision to restrict access is taken by the Assistant Director working in the particular area of the business with who the customer is in contact, PSU in consultation with the / Responder Hub as appropriate. Any restrictions imposed should be appropriate and proportionate to the circumstances. The options to be considered will be: Requesting contact in a particular form (e.g. letters, s) Requiring contact to take place with a named officer only Restricting telephone calls to specified days and times Asking the customer to enter into an agreement about their conduct and/or future contacts with UK Visas and immigration, Immigration Enforcement or Border Force In all cases it will be explained to the customer in writing by the Assistant Director why their behaviour is considered unacceptable, what action will be taken, and the duration of that action. They will also be informed they can write to the Responder Hub or Customer Service Unit, Border Force Complaints and Correspondence Team and Detention Services CSU challenging the decision should they disagree. 56

57 Where a customer continues to behave in a way which is unacceptable, it may be decided to terminate contact with that customer and discontinue any investigation into their complaint Where a customer whose case is closed persists in communicating with the business or Responder Hub / Border Force or Detention Services a decision may be taken to terminate contact with that customer. In such cases the complaint handler will read all new correspondence from that customer but unless there is fresh evidence which affects the decision on the complaint the correspondence will simply be acknowledged or will be placed on file with no acknowledgement. New complaints from those who come under this policy will be treated, and decisions made, based on their merits. Back to Top Back to contents 57

58 Section 11 Complaints from children This section of the guidance is intended to provide awareness for: Anyone handling local resolution complaints, including minor misconduct complaints in Immigration Enforcement, UK Visas and Immigration and Border Force. This is particularly relevant for front line operational staff. Professional Standards Unit progressing and managing Serious or Gross Misconduct. Responder Hubs and Direct Communication Unit responsible for replying to service complaints or service and misconduct complaints. Purpose The complaints handling arrangements of Immigration Enforcement, UK Visas & Immigration and Border Force are intended to ensure that children are not disadvantaged in using the complaints system and are treated fairly through reasonable, age-appropriate adjustments being made to processes where necessary. In particular, any child making a complaint should feel confident in doing so and feel safe from repercussions and understand that the making of a complaint will not affect the consideration of any claim made by the child or their family Whilst it is intended that the complaints handling process should be made accessible to, and usable by, children directly, it will almost always be in the best interests of the children to be supported and helped by a responsible adult When a child makes a complaint that raises complex issues or issues that could have serious Implications, the responder or PSU investigator should contact the child to clarify whether they want or need adult support. If the child does want help the responder or PSU investigator should, where possible, suggest and offer to facilitate contact with appropriate parties including; parents, teachers, voluntary organisations, etc Explanation of the Safeguarding Children The specific functions covered by the duty include: immigration, asylum and nationality functions of the Secretary of State; functions conferred by virtue of the immigration acts on an immigration officer; as well as general customs functions, and customs functions conferred upon designated customs officials. Services provided by contractors have to be provided having regard to the need to safeguard and promote the welfare of children. Immigration Enforcement, UK Visas & Immigration and Border Force staff and contractors now have a specific duty to have regard to the need to safeguard and promote the welfare of the children with whom staff have contact or who are directly affected by Immigration Enforcement, UK Visas & Immigration or Border Force activities. In order to fulfil that duty they must; (a) ensure that children are not disadvantaged in using the relevant complaints system and are treated fairly through reasonable, age-appropriate adjustments being made to processes where necessary; and (b) take appropriate actions to share information with, and report concerns to, appropriate bodies such as the Police or Local Authority Child Welfare Services. (This 58

59 will be undertaken in line with the Information Sharing Policy statement see Appendix C.) Staff working for devolved administrations or overseas are expected to follow the same principles.. Back to top Back to contents 59

60 11.2. Explanation of the Safeguarding Children duty in complaints handling Customer Service Operations (CSO) has overall responsibility for complaints management within the Immigration Enforcement, UK Visas & Immigration and Border Force including; communicating the complaints process to customers, staff and contractors ownership of the complaint policy and supporting guidance, End-to-end processing of complaints including administration Complaints Management System (CMS); drafting and issuing response letters; considering ex gratia payments; undertaking reviews; and, liaising with Parliamentary & Health Services Ombudsman (PHSO) investigation of serious misconduct complaints through Professional Standards Unit The processes managed by CSO for complaints handling are set out in this Complaint Management Guidance.. This section provides further guidance as to how all staff can help the complaints handling process be consistent with the Section 55 duty by ensuring that; information about the complaints is readily accessible and easily understood by children and/or their responsible adult (see Section 4) the complaints process ensures gathering of best evidence from children, keeps them informed regularly of progress and conveys the findings in a clear but sensitive manner (see Section 4) anyone who has contact with children can identify children who are being harmed or are at risk of harm and knows how to report their concerns to the appropriate authorities (see Sections 5 & 6) Every person within Immigration Enforcement, UK Visas & Immigration and Border Force not just in CSO - will either currently be, or potentially could be, involved in complaints handling. The frequency and extent of that involvement will depend on our roles within the department. The section 55 duty applies to all Immigration Enforcement, UK Visas & Immigration and Border Force and Border Force staff and contractors handling complaints For example, staff having face to face contact with customers or receiving correspondence direct from customers are likely to be required regularly to identify complaints and ensure they are recorded and handled appropriately. Other specialist staff, such as Professional Standards Unit investigators, will meet complainants, including children, in face to face interviews Any staff member who communicates with the public, particularly those who have face to face contact, will need to ensure that they take reasonable care to identify possible abuse, neglect or harm of children and know how to instigate child protection measures by the Local Authority and/or Police. Back to top Back to contents 60

61 11.3. Training Immigration Enforcement, Border Force and UK Visas and Immigration require all staff to complete the mandatory courses, which apply to their responsibilities and to keep their knowledge of children s issues up to date. All staff must complete the e-learning course Keeping Children Safe. This is a mandatory course and must be refreshed every two years. Tier 1 consists of 2 separate e-learning modules: Keeping Children Safe: Core Model. Keeping Children Safe: New Children s Duty. Border Force staff must also complete Keeping Children Safe - Border Control Keeping Children Safe Detention Services. Keeping Children Safe (Tier 2) is intended for those staff who make decisions involving children as part of their job, whether it is face to face or on paper. You can find the OCC intranet page on which includes a link to Discover from the Office of the Children s Champion (OCC) page here) Keeping Children safe (Tier 3 - POISE / INDIGO) is intended for staff who regularly have face to face contact with children. E.g. PSU investigators conducting investigation interviews regarding serious complaints to critical incidents. You can find the OCC intranet page on KCS training here) Human Trafficking. National Referral mechanism Process. These courses explain the Council of Europe Convention on Trafficking and describes how to identify children who may be victims of trafficking and how to refer using the National Referral Model. In addition, Professional Standards Unit staff will complete the National Investigative Interviewing Tier 3 course if required. The course contains information about dealing with issues relating to vulnerable persons, which could include children Back to contents Guidance concerning reasonable adjustments to the complaints handling process The complaints handling arrangements of Immigration Enforcement, UK Visas & Immigration and Border Force are intended to ensure that children are not disadvantaged in using the complaints system and are treated fairly through reasonable, age-appropriate adjustments being made to processes where necessary. In particular, any child making a complaint should feel confident in doing so and feel safe from repercussions and understand that the making of a complaint will not affect the consideration of any claim made by the child or their family Whilst it is intended that the complaints handling process should be made accessible to and usable by, children directly, it will almost always be in the best interests of the children to be supported and helped by a responsible adult When a child makes a complaint that raises complex issues or issues that could have serious implications the member of staff handling the complaint or PSU investigator should 61

62 contact the child to clarify whether they want or need adult support. If the child does want help, the responder or PSU investigator should, where possible, suggest and offer to facilitate contact with appropriate parties including; parents, teachers, voluntary organisations, etc. Back to contents Ensuring children and their representatives are aware of the complaints process The Home Office website ( provides a useful source of information about how to make a complaint for complainants with access to the internet. Contact centres should also provide simple and clear advice to any callers, including children, about how to make a complaint Posters should be placed in a prominent position at all Immigration Enforcement, UK Visas & Immigration and Border Force buildings to which the public have access including ports, immigration removal centres, short term holding facilities and reporting centres. Leaflets (which contain Complaints Registration Forms) should also be displayed or, at a minimum, be offered immediately upon request at these same locations Posters and leaflets are already available in plain English and should therefore be understandable to older children with a basic standard of English. Younger children or children with less developed English may need to have an adult explain the complaints process and help them write down their complaint. (Leaflets must be made available in other languages in Immigration Removal Centres) Officers engaged in enforcement work should keep copies of the Immigration Enforcement branded How to Complain leaflet in their Ops Kits. They should ensure that they provide contact details for their Immigration Compliance and Enforcement teams to at least one person at any address they visit (including if that person is a child on their own). Where the person has specifically expressed a wish to complain, despite initial attempts to resolve the problem, they should be given a copy of the How to Complain leaflet. This will enable any person who is dissatisfied with the service or behaviour of those officers to either make a complaint verbally, or be advised how to make a written complaint direct to CSO. Back to contents 11.6 Receiving and accepting complaints Having made potential complainants aware of how to make a complaint, Immigration Enforcement, UK Visas & Immigration and Border Force must ensure that any attempt to make a complaint is properly facilitated. Complaints will be received through one of the following ways; Verbally, face-to-face, to a member of staff or a contractor (e.g. mentioned during an asylum interview) Verbally, by phone to e.g. call centre, enforcement office, port, etc In writing; o on a complaint form (Complaints Registration Form or DCF9) o as a letter o by o by fax 62

63 All staff receiving a complaint from a child should be pro-active in ensuring that the complaint is recorded and accepted. It may be necessary to provide additional help to a child complainant or have a greater degree of flexibility in accepting complaints. Appropriate adjustments might include; Writing out a complaint form on a child s behalf when they express their dissatisfaction verbally either face to face or over the telephone and taking time to explain the complaints handling process. When considering the seriousness of a complaint bear in mind that a child may not have the vocabulary of an adult to express what has happened to them. Similarly, a child may experience events in a different way from an adult: apparently trivial matters may assume a far greater importance in the eyes of a child and be the cause of significant distress. Attempts should always be made to see the event from the child s perspective. Where an allegation is imprecise or unclear it would be sensible for the business, Responder Hub or PSU investigator to assume a higher level of seriousness and then seek further information from the child (it can always be reclassified as being of less seriousness as new information is obtained). When considering whether to accept a complaint made over three months after the incident, the all staff should bear in mind that a child might have faced more difficulty than an adult in finding out about the complaints system; or have felt less confident in talking to someone about their issues. Complaints may be received from adults acting on behalf of a child where they are not a legal representative for that child. Any member of staff handling or replying to the complaint should confirm where possible that the child is content with the complaint being made and that it reflects accurately that child s views. The person looking into the complaint should also consider whether the representative is suitable to act in that capacity or has sufficient interest in the child s welfare. If, on consideration, the representative does not have sufficient interest, the person handling the complaint should write to the representative explaining that they will not be involved further in the process. The person looking into the complaint should then consider whether to pursue the matter further and, if so, consider whether a more appropriate adult could be identified who could represent the child s interests in the matter. The decision and reasons for this should be recorded. The box on CMS should be ticked to indicate a complaint directly from a child has been received. Back to contents Communicating with the complainant All written communication with a child throughout the complaints process should be as simple and clear as possible. It would not be appropriate to issue standard acknowledgement and invite to interview letters to younger children. Instead, it would a reasonable adjustment, to prepare bespoke letters which explain matters in simple terms and that also advise the child to ring up and ask further questions if they remain unsure of anything It may be necessary or desirable for the investigating officer in serious misconduct complaints or line manager for minor misconduct complaints (requiring Local Resolution) to 63

64 speak with a child either on the phone or in person, for example, to explain the complaints process, provide progress updates, or seek further information During such conversations the person investigating the matter should ensure that their verbal communication is simple and understandable for the child as far as possible. They should ask the child to explain their understanding of what has been said to them as a check that they have understood the key points discussed The frequency of communication will also be particularly important to children especially in the case of serious misconduct investigations that last up to 12 weeks. (Depending on other priorities, PSU should consider whether it would be possible to conclude a complaint from a child more rapidly than 12 weeks if this can be achieved without compromising the quality of the investigation.) A child complainant should be provided with updates at least every 4 weeks and it might be preferable to do so more often It should not be assumed that the child would prefer to be updated using hard copy letters. Updates on progress do not need to be lengthy and so could be communicated using, s or a brief telephone call if the child is happy to use these methods and the responsible adult gives permission. Records should be kept of the content of all communications and their date to ensure all of the complaints handling relationships are transparent and auditable Local resolution of complaints involving children should be recorded and sent to the Complaints Allocation Hub. Although children may make complaints during interviews or verbally which require local resolution, staff should not seek to interview the child as part of the investigation of the complaint Service complaints from children or concerning children should be progressed in the same way as complaints from adults. However CSI requires responder hubs to complete CMS to indicate that a complaint is being handled which is from or affects a child. Back to contents 11.8.Serious / gross misconduct complaints Interviewing a child complainant The only staff who will need to undertake face to face interviews with children concerning complaints will be PSU investigators looking into allegations of serious / gross misconduct. Where it is necessary to interview a child to obtain their account of events, the child should always be accompanied by a responsible adult. The responsible adult should enable the child to express their views, wishes or feelings; they may also speak on the child s behalf All PSU investigators should complete appropriate training such as Keeping Children Safe Tier 3 or Police training for interviewing vulnerable people; as well as having an enhanced Criminal Records Bureau (CRB) clearance. Alternatively, they must be accompanied by someone who has who can act as the lead interviewer supported by the PSU investigator The investigator should consult with the child about the possible time and location of the interview. When agreeing the timing of the interview, where possible, the investigator should try to identify dates or times which do not prevent the child attending school or undertaking planned activities. 64

65 In general, investigating officers should not conduct interviews at the home of the child but this might be the most suitable location for younger children discussing sensitive allegations. Other suitable locations might include the child s school; nurseries, school rooms or play rooms in detention centres; or child-friendly video interview suites at some Police stations There are many issues to consider when planning and undertaking an interview with a child regarding a serious misconduct matter. Further information is provided in PSU Instructions Explaining the outcomes from complaints The possible outcomes from the complaint should be made clear during communication with the complainant, particularly in the case of serious misconduct investigations, during the interview. It should be explained clearly to a child who has made a complaint that the complaints system is entirely separate from issues regarding their immigration status: a complaint will neither further their cause nor result in any form of reprisals It should also be established the child understands what is truthful i.e. factual. Consideration of their age should be made and their understanding of what a fact is, particularly with young children. They should be advised that the interview is to establish the facts i.e. what happened and the facts should be correct. It should be explained that it is important to try and get the information right as it could have a serious impact on the jobs of the staff or contractors being complained about Conversely, they should be informed that there are a variety of disciplinary actions which can be taken short of dismissal. There is a balance to be struck between ensuring that the child knows that their complaint will be taken seriously without making them feel guilty about the consequences for others In communicating the decision to a complainant who is a child, the main issue is again the clarity and simplicity of how this is set out in writing. A child may not fully understand the subtleties of distinction between stating that a complaint was not substantiated to the required level of proof in comparison to stating we do not believe you told the truth about the incident In order to address this, and make clear that Immigration Enforcement, UK Visas & Immigration or Border Force are not being judgemental about their actions, where practicable and proportionate it would be useful to follow the IPCC practice of delivering findings on serious misconduct investigations in person. This would allow the child to ask questions directly of an investigator and for the investigator to explain things as positively as possible. The investigator should take the opportunity to state that even where a complaint is not substantiated the investigation might have raised other lessons to be learned and the complainant did the right thing in raising their concerns. Back to contents Monitoring complaints & risk assessment To understand fully the involvement of children within the complaints handling system and to identify further possible reasonable adjustments - CSO will seek to compile management information specific to child related complaints from its Complaints Management System (CMS) It is possible to determine whether a case concerns a child when looking at CMS as there is a tick box entitled From or Affecting a Child which must be filled in by the Responder Hub or Border Force Correspondence unit when the complaint is first registered. This allows 65

66 CSO to compile management information about the number and type of allegations involving children received by the Home Office. Back to contents Making a child welfare referral Who should make a referral It should not be assumed that the caseowner for a family s or child s application is solely responsible for identifying whether a child is at risk. Any contact, e.g. interviews, phone calls, or written correspondence, between an individual child or the adults who care for them and Immigration Enforcement, UK Visas & Immigration or Border Force, present another opportunity to re-evaluate whether that child may be being harmed or at risk of being harmed. Safeguarding Children is an ongoing process and just because a child did not appear to be at risk of harm when first encountered does not mean that the situation has not changed since Every member of staff, including those handling complaints, has a duty to apply the training they have received to identify children at risk of neglect, abuse or harm whilst undertaking their normal duties. If during the normal course of their duties in this case, whilst handling or responding to complaints a child at risk is identified, staff should contact Police and/or Social Services about their concerns, if there is no record of a referral having been made previously. Home Office paper and electronic records should also be updated to ensure others in Immigration Enforcement, UK Visas & Immigration and Border Force are aware of the referral. Annex C contains more detailed information on how a child welfare referral might be made. It includes how to identify a child at risk of harm and when to make a referral. Back to contents Annex B contains information about private fostering arrangements 66

67 Even if a role does not involve personal contact with a child there are Indicators that may raise concerns if the child: is in the UK without their natural parent(s); has been abandoned by their parent(s); arrived in the UK with family members but has since left the family unit and made an application in their own right; arrived in the UK with an adult but has since submitted an application in their own right; was part of a family unit on a previous application but has left the family unit and there is no evidence of where the child is now (see ) appears to be in a private fostering arrangement but there is no evidence of this arrangement being registered with Children s Services and/or no referral to Children s Services has been made; has changed their principle carer since they last had contact with the Immigration Enforcement, UK Visas & Immigration and Border Force; has an application made on their behalf by someone who is not their natural parent; or there is evidence on file that the child has previously come to the attention of Children s Services, Educational Welfare, Police or other agencies that have had concerns for any aspect of a child s welfare/safety. Victims of human trafficking - operational guidance Department of Education and Skills Working together to safeguard children provides useful information on key definitions and concepts when dealing with complaints affecting or involving children. E.g. Concerning children in need, or at risk of significant harm. Working together to safeguard children

68 Section 12 Financial redress 12.1 Introduction An ex gratia payment is a sum of money paid when there is no obligation or liability to pay it. ( Compensation payments must be awarded by a court.) The Immigration Enforcement, UK Visas & Immigration and Border Force make ex gratia payments to customers, beyond any legal or statutory requirements, as redress for maladministration. These payments are made at the discretion of the Home Office and depend on the individual circumstances of each complaint. Responsibilities The Responder Hubs, Border Force Complaints and Correspondence team are responsible for assessing claims for ex gratia payments and authorising payment where appropriate. Claims can be made by customer directly, through representatives or by the Parliamentary and Health Service Ombudsman (PHSO). Each claim is judged on the merits of the evidence provided by the person making the claim and the internal records and guidance available to the person asked to investigate the claim. The business area responsible for the maladministration is responsible for the payment from their budget, although the handling of the process to enable the claim to be made is usually delegated to the Responder Hub or Border Force Complaints and Correspondence team. Delegated Authority All ex gratia payments need to be considered in line with managing-public-money (July 2013).. If there are concerns that part or all of a claim for an ex gratia payment may be fraudulent please refer to section 12.8 of this guidance. Specific written approval from the Treasury must be received for all proposals to make an ex gratia payment above 50,000. With claims under this amount authority has been delegated as follows: Home Office senior directors: 1-50,000 Grade 5 / Directors 1-20,000 Grade 6 5,000-19,999 Head of Unit (G7)/ Responder Hub (G7) 1-4,999 Staff in Responder Hubs should ensure that they have the right level of financial approval to allow them to approve payments from the UK Visa & Immigration or Immigration Enforcement business budgets when claims are assessed as substantiated or partially substantiated. Each should hold a letter of authority from the budget holder which lists the cost centre codes from which payment may be made. This should be renewed periodically [annually?] with the business to ensure everyone is clear about the responsibilities and agreed payments can be made quickly. Disputes over the amount or which business is responsible should be resolved by work stream experts and the Grade 7 responsible for complaints in the Responder Hub / CSU, their business area contacts, under the terms of the service level agreement between CSO and other business areas Collective claims This guidance is intended to apply to the consideration of individual claims for financial redress as a result of the maladministration of their case (see ). In some cases there may be 68

69 many individuals who claim to have been affected by maladministration under the same circumstances e.g. due to a decision to administer certain applications in a particular way. In such cases the potential cumulative cost of ex gratia payments could exceed 50,000 - sometimes substantially. In such cases, which fall outside the scope of this guidance, legal advice should be obtained from Legal Advisers Branch (LAB) about the legal liabilities. Authorisation for payments which in total, but not individually, exceed 50,000 should be signed off by the UKVI Director General, Immigration Enforcement Director General or Border Force Director General. Although the Responder Hub / Border Force Correspondence unit will assess the amount to be paid, and will complete the paperwork to ensure the payment is made quickly, the payments will be made from the budgets of the business area which was responsible for the maladministration. When we decide an ex gratia payment should be paid, a letter informing the customer of the amount should be sent to them asking them to formally accept the offer. (NB: The letter must not refer to the offer being in full and final settlement as this is misleading and, in any case, not binding.) Once the customer accepts the offer, the amount offered should be paid within a reasonable time Record keeping in reimbursement cases. All complaints made to the formal postal and addresses in section 2 and meeting the definition of a complaint made in section 3 must be recorded on the Complaints Management System (CMS). CMS guidance refers. Complaints which also claim financial redress which have been received by the Central Point of Receipt either through the Complaints or postal address will have their complaint registered on CMS as usual but indicating that a request for redress has been made. Staff in Responder Hubs should investigate the complaint, drawing together any Home Office information available. They should then send a letter apologising to the customer if maladministration has occurred and to obtain any evidence to support the claim. This letter should close action on the complaint and open action on the reimbursement request. Activity to record activity in examining the costs should be carried out using the Next steps screen on CMS. Reimbursement and ex gratia cases are considered completed in the following circumstances: When a decision letter either offering redress has been made and two letters repeating the offer have been sent with no reply from the customer within 1 calendar month of the last letter. When a decision letter has been sent refusing financial redress and no request for review has been received within 1 calendar month of the decision letter. In cases where payment has been offered and accepted the date the payment was made into the bank account of the complainant by BACS transfer Principles for consideration of ex gratia payments Parliament makes no provision in legislation concerning ex gratia payments. As there is no statutory framework, deciding whether to make a payment (in any case or situation) and, if so, how much, is a matter of judgement. The rationale for any such decisions must therefore be clearly documented as part of the consideration process. 69

70 The Responder Hub should consider whether the customer has suffered an actual financial loss or non-financial loss that is sufficiently compelling to warrant financial redress: Where maladministration has been identified by the department an ex gratia payment will be considered. Generally, each decision must be given on the facts as they exist at the date of the decision. A decision may be revised when fresh facts become known or where, for example, an impartial review concludes that a different conclusion can be reached from the same set of facts Consider the type or form of evidence. The weight given to each piece of evidence needs to be carefully judged in the light of the circumstances of the case. The sooner evidence of an alleged incident or event can be gathered and considered the more helpful it is likely to be in informing decision making Although there is no time limit for claiming an ex gratia payment it is reasonable for an application to be made within three months of a complaint being resolved. However, documentary or incontrovertible proof is not an essential requirement for the authorisation of an ex gratia payment so the fact that documents may have been routinely and correctly destroyed, or an officer cannot remember the case, would not in itself justify a refusal to make a payment. In such instances, a decision can and should be made on the balance of probabilities In cases where the process of gathering evidence has been exhausted, but it remains unclear from the available evidence whether a particular event/incident occurred, or whether a particular assertion is true, it falls to be decided on the balance of probability. This is not the same as "beyond reasonable doubt": the standard test of proof in criminal trials The balance of probability involves deciding whether it is more likely than not that an event/incident occurred, or that an assertion is true. If the evidence is contradictory it should be decided whether there is enough evidence in favour of one conclusion or another. This may either mean a conclusion on the balance of probability or a conclusion that there is insufficient evidence to substantiate a complaint. The reason for reaching any conclusion should be clearly recorded, including the rationale for favouring one account over another If the HEO Responder Hub manager is still unable to decide the matter s/he should seek a view from their SEO or G7 manager The Responder Hub will consider the appropriate level of any ex gratia payment and ensure it is authorised, offered and paid according to their relevant local procedures and always in accordance with the guidance in concerning levels of delegated authority Maladministration There is no definition of maladministration in law but it is generally agreed to be a lack of care, judgement or honesty in the management of something. If a decision is made on an application which is reasonable (given the case law and, or, Home Office guidance, at the time) which is subsequently held not to be sustainable, maladministration will not have been found. This is because the original decision is considered to have been made using due care, judgement and honesty. 70

71 The following are normally considered to be maladministration and may be considered for ex-gratia payments. This list is not exhaustive and each case should always be taken on its own merits Losing documents These can include the loss of documents such as passports, driving licences, marriage certificates, birth certificates, college certificates etc that have been submitted by customers and have been lost or misplaced whilst in our care If the envelope used to return documents is incorrectly addressed and this causes the loss of documents by a third party, e.g. Royal Mail, Home Office business area responsible for sending it out would be liable for that loss Defacing/invalidating documents Examples may include punching a national passport which invalidates it, or marking/defacing a document in any way leads to it being invalidated Taking incorrect action An example of failing to take correct action could be endorsing a passport with the wrong conditions resulting in a person being unable to take up a work placement Failure to respond to correspondence An example of failing to respond to correspondence can be where a customer has written to a business area in Immigration Enforcement, UK Visas & Immigration, Border Force on a number of occasions, or over a period of time regarding action that they needed us to take such as returning a passport, confirmation of right to work which has then led to the customer incurring financial cost Correspondence examples can also be considered under non-financial loss where staff haven t responded to correspondence which could cause the customer anxiety and inconvenience (see section 12.5 on non-financial loss for further guidance) Giving incorrect advice An example of giving incorrect advice would be the customer making an application too early or submitting an incorrect application based on incorrect advice, particularly if it incurs a charge. 71

72 The department DOES NOT class as maladministration Delays Targets, other than mandatory ones, are taken as indicators of a satisfactory or unsatisfactory performance rather than a firm commitment that a specific performance will be achieved in every individual case. Delays that have occurred due to operational constraints and limited resources i.e. where a backlog of cases have incurred this is not classed as maladministration by Immigration Enforcement, Border Force or UK Visas and Immigration directorates Forms of redress such as apology or remedial action may be called for when the complaint is about delay. Financial redress would only be appropriate in exceptional circumstances where the delay has also had a financial impact. Examples can include failure to take action on repeated requests from applicants regarding the return of a passport which then leads to financial loss, or a decision being made on an application and failing to serve that decision which then leads to financial losses such as loss of access to benefits or being unable to take up a proven offer of employment or employment being terminated. Whether a delay should be considered as reasonable will be dependent on the circumstances and decision makers will take a case by case approach. Policy changes/cases put on hold Where further action on cases has been temporarily suspended whilst awaiting a court judgement that is relevant to the appropriate administration of those cases, and/or where new policies are being developed to reflect a relevant court judgement this is not maladministration Exceptional circumstances There may be circumstances when no maladministration has occurred but there has been a situation which has led to a customer incurring expenses that they would not otherwise have incurred. For example: Flooding of a valuable document hold which resulted in a large number of passports and other documents being water damaged. Computer systems have gone down over a number of days and customers who have attended one of the Contact Centres have incurred additional expenses to make or travel to a subsequent appointment. Immigration Enforcement, UK Visas and Immigration and Border Force would not accept liability in these cases, as there was no maladministration. Decision makers may offer redress exceptionally to customers whose documents were affected or incurred travel costs due to making further appointments The Responder Hub will consider the appropriate level of any ex gratia payment and ensure it is authorised, offered and paid according to their relevant local procedures and always in accordance with the guidance concerning levels of delegated authority. 72

73 12.5 Actual financial loss Actual financial loss applies to cases where maladministration has directly caused the customer to incur additional expenditure that would not have been incurred otherwise Most cases are likely to fall into three broad categories: Where the customer has lost in whole or in part an entitlement to a government grant, subsidy, benefit payment, allowance or other payment; Where the customer has been put to additional expense; Where payment of a grant or benefit etc has been delayed and a payment has been sought on account of the delay Immigration Enforcement, UK Visas & Immigration and Border Force make ex gratia payments for financial loss for reasonable costs that have been necessarily incurred. The aim is to restore the customer to the position he or she would have enjoyed had the maladministration not occurred. Where claims are made for costs occurred in foreign currencies the exchange rate at the time of expenditure should be used to determine the appropriate level of payment. A history record of currency exchange rates can be found at Financial remedies should not, however, allow recipients to gain a financial advantage compared to what would have happened with no service failure Immigration Enforcement, UK Visas & Immigration and Border Force do not pay interest on ex gratia payment claims. Interest is only considered on payments where it has been recommended by the PHSO at the rate paid by the county courts The following are typical examples of financial loss. These are not exhaustive and are used to demonstrate general principles in deciding the appropriate levels of redress for financial loss. Passports The majority of claims for reimbursement received concern lost or misplaced passports. The cost of a passport can vary from less than 50 to over 800 depending on the issuing country In addition to payments for replacing a lost passport customers will often seek redress for: Travel costs to their Embassy or High Commission in order to obtain a new document (this may include rail, road and sometimes air fares) Passport photographs Signed affidavits (confirming their identity) Loss of earnings (on the grounds that they had to visit their Embassy or High Commission when they could have been at work) If the immigration businesses accept that a passport has been lost whilst in its care the decision maker should consider all costs associated with replacing it. Customers are required to supply evidence to support their claim in this respect. This includes: Receipt for the cost of the passport from the Embassy or High Commission Proof that travel to the home country was required and the replacement passport or other document could not have been obtained by post from the UK Proof of travel costs (train, coach and airline tickets and receipts for petrol costs) 73

74 Receipts from solicitors in respect of affidavits Receipts for passport photographs if they are available If a customer is unable to provide a receipt for the cost of a passport a photocopy of the pages of the new passport showing the identity details and date of issue should be requested When the evidence has been received the Responder Hub should check the cost of the passport with the relevant Embassy or High Commission. This can be done via the websites of the various Embassies. High Commissions can be contacted for this information via , fax, letter or telephone. Contact details for the various Embassies and High Commissions can be found at the Foreign and Commonwealth website. Staff who have access to the Knowledge Base can find the information there The decision maker in ex-gratia cases should always check the expiry date of a passport that has been lost or misplaced. In general, if a passport expires whilst the Immigration Enforcement, UK Visas & Immigration or Border Force is holding it in connection with an application, the applicant is responsible for its renewal. Some Embassies and High Commissions charge the same amount to renew a passport as they do to replace one. If a passport that has expired is lost, and the renewal fee is the same as the replacement fee, an ex gratia payment should not be offered. If the replacement fee is higher than the renewal fee, the difference between the two fees will be paid In some cases e.g. some asylum applications where the nationality and circumstances are known and not in dispute, it may be more appropriate to provide the customer with travel documents and an ex-gratia payment or in some rare cases, a new UK passport and payment of the cost of the naturalisation process rather than to replace their foreign passport. Claimants should not assume that they can automatically replace a lost foreign passport with a UK passport. Each case will be considered on its merits. Travel costs In most cases customers will provide evidence of travel costs such as receipts or the actual travel tickets. If a customer is unable to provide proof of travel costs but there is evidence that they visited their Embassy or High Commission, the Responder Hub should consider offering an ex gratia payment. Train costs Enquiries about the cost of train fares should be made by contacting National Rail on or through National Rail Enquiries. Petrol costs Some customers choose to travel by car and submit receipts for their petrol costs however the decision maker in ex-gratia cases should only pay for the petrol needed to make the essential journeys in relation to the maladministration i.e. replacing their passport. This can be difficult to establish accurately but the calculation below provides one way to achieve a reasonably accurate estimate The decision maker in ex-gratia cases should work out how many miles the customer has had to cover. This can be done by using the AA Route Planner. Then divide the journey length in miles by 30 (i.e. to give an assumed fuel consumption rate of 30 miles per gallon). Then multiply by 4.55 to establish the number of litres of fuel required (there are 4.55 litres to the gallon). Then multiply by the most appropriate price per litre of fuel as obtained from: 74

75 Some customers may claim the cost of travelling by taxi. In general the business will not meet the cost of taxi fares. However, the Responder Hub should consider these costs in exceptional circumstances. For example, Where the customer is disabled. Where the customer is heavily pregnant or ill. Where there was no public transport alternative at the time the customer needed to travel. Evidence of this must be provided, including appropriate medical evidence. Hotel costs will only be reimbursed where these are considered reasonable to incur such costs. If options for day return travel exist, the decision maker will always consider these as a viable alternative to hotel accommodation. Accommodation abroad Decision makers should consider whether documents can only be replaced if travel to the country in person and should consider evidence from the embassies or educational establishment as to whether reasonable alternatives exist. Customers approaching decision makers for advice prior to travel abroad where the decision maker has agreed there is no alternative, may submit evidence of likely costs prior to booking to ensure there are fewer disagreements over what is considered reasonable. They should be informed that this does not commit the decision maker and all cases involving financial cost will be considered on a case by case basis and on the basis of the expenses incurred. For example if travel is taken later than the estimate and resulting expenses are lower than estimated the decision maker will not refund costs on the basis of the estimate, but on the basis of the expenses incurred. If costs are significantly higher however the decision maker will consider on the basis of what would be reasonable based on the paragraph below Customers who claim hotel costs should be aware decision makers will look at three quotes for budget hotels and consider the average current rate for the country/ city or the Home Office capped rate whichever is lower at the time of the travel. Decision makers will also consider whether the length of stay and other factors are appropriate on a case by case basis. Unless there are exceptional events, it is reasonable to expect return to the UK within two days of the date of the issue of the documents which have been replaced. Costs cannot be reimbursed if they have not been incurred. Other valuable documents Immigration Enforcement, UK Visas & Immigration and Border Force will consider offering an ex gratia payment to replace other lost or misplaced documents. This includes: Marriage certificates Birth certificates Police Registration certificates Exam certificates i.e. diplomas, degrees etc The Responder Hub must request receipts before offering an ex gratia payment to cover the costs of replacing these documents. If the customer cannot provide receipts the Responder Hub should request copies of the documents and information about where they were obtained from. If necessary, the Responder Hub can then contact the provider to confirm authenticity. Losses by Royal Mail 75

76 Immigration Enforcement, UK Visas & Immigration and Border Force despatches documents by Recorded Delivery or Secure Mail System (SMS) unless applicants provide a pre-paid self-addressed Special Delivery envelope The Home Office decision maker will only consider offering an ex gratia payment if correspondence was incorrectly addressed and has been either subsequently lost by Royal Mail or delivered to the incorrect address by Royal Mail and subsequently became lost. If the package was correctly addressed the Responder Hub should not offer payment Royal Mail will usually reimburse applicants for a lost package even if it has been addressed it incorrectly. However, it will not offer any more than the equivalent of the current cost of a First Class stamp. In these cases, as there has been maladministration the excess above the cost of the first class stamp should be paid. Where a passport hotline or business area takes longer than the Royal Mail limit for making a claim, then the department should seek to redress the customer as they have not been able to submit a claim to the Royal mail in time. Letter to the Royal Mail confirming reimbursement should be paid Case Study 1 The Agency despatches Mr X s status papers and his family s passports by recorded delivery to the address recorded on the Case information Database (CID). Mr X enquires about his application and is informed that the decision letters and documents have been despatched and that he should check with Royal Mail. Mr X establishes that the package had not arrived. The Responder Hub discovers that the package was incorrectly addressed. Mr X had informed us of a recent change of address but this had not been recorded on CID. Royal Mail subsequently sends Mr X a first class stamp as a good will gesture The total cost of the passports was 336 plus a further 16 for passport photographs. Pay the difference between the total cost and the 46 offered by the Royal Mail ( ). Mr X should be offered Case Study 2 Miss Y s status papers and passport are dispatched by recorded delivery to the address recorded on the Case Information Database (CID). Miss Y enquires about her application and is informed that the decision letter and her documents have been despatched and that she should check with Royal Mail. Miss Y establishes that the package has not arrived. The Agency issues evidence of, along with proof of the Royal Mail collecting the package. Miss Y makes a claim to Royal Mail who subsequently offered a payment of 46. Unfortunately the 46 offered by Royal Mail does not cover her costs and she puts in a subsequent claim to the Agency claiming that the Agency should be using Special Delivery to despatch valuable documents. The total cost of replacing her passport comes to As there has been no maladministration on the part of the Agency, in that the Agency correctly addressed the package and sent it by recorded delivery as no Special Delivery pre-paid envelope was provided, the Responder Hub should refuse this 76

77 Missed travel or holiday Immigration Enforcement, UK Visas & Immigration and Border Force advise all applicants that they should not make any non-urgent travel plans whilst their applications are being considered. Applicants who are exercising their rights under the European Economic Area (EEA) Regulations may have their documents returned to them while an application is pending enabling them to travel abroad. Applicants also have the option to withdraw their applications if they need to travel urgently Applicants who have not been able to make an essential journey abroad or missed a travel opportunity because their documents have been lost should be offered payment by Immigration Enforcement, UK Visas and Immigration or Border Force staff. This includes situations where we failed to return them in time and where reasonable notice has been given The following information is of use in assessing a claim for missed travel or holiday: Unused flight tickets. Confirmation of cost of holiday or flight from travel agents or airline. Confirmation that no refund was given by the travel agent or airline. Confirmation that the holiday or flight was non-transferable or non-refundable. The airline or travel agent can provide this information. Loss of Earnings Some applicants may claim for loss of earnings where they have had to take a day (or a number of days) off work to visit their Embassy or High Commission, or to travel to one of the Contact Centres, or because their employment has been lost or suspended, due to maladministration by Immigration Enforcement, UK Visas & Immigration or Border Force Customers must supply evidence to support their claim of loss of earnings. This includes, but is not exclusive: Original wage slips, or certified copies, covering the period of loss Letter from employer confirming time off and loss of earnings (net) Copy of contract providing details of wages When considering refunding loss of earning evidence provided by the customer should be carefully considered so that the gross and net salary payments are properly understood. Wage slips from some employers deduct tax at source, others do not. In making any payment based on wage slip evidence or consultancy contracts or for the self employed care should be taken to ensure that the tax position is understood. Reimbursements will not include an element for the tax customers would have paid had they worked that day as the payments are ex gratia. Self employed Anyone requesting redress for loss of earnings that is self employed, should be asked for evidence to prove the basis of their loss of earnings. This may possibly include a tax return / letter from HMRC. However Responder Hubs should advise claimants that they make any payment based on net pay and any evidence they have submit should include their tax banding. 77

78 Where holiday or annual leave has been taken, perhaps to visit an embassy or premises after lawful entry, confirmation should be sought on what basis leave is accrued and reimbursement provided on that basis. Payments on the grounds of maladministration for potential loss of earnings where employment had not commenced are not generally made. However, where a customer claims exceptional circumstances these will be considered on a case by case basis If a claimant has only provided evidence of gross pay the following calculation can be used to assess the net loss: Basic tax rate payer Annual gross pay (up to) 32,010 minus 9440 (personal tax allowance) multiplied by 0.68 (to account for 20% tax and 12% National Insurance), add back 9440 = Annual Net Pay. Divide by 52 for weekly net salary and then again by the amount of days normally worked each week for the daily net salary (customer may work less than five days a week). Basic tax payer Annual gross pay (up to) 31,865 minus 10,000 (personal tax allowance) multiplied by 0.68 (to account for 20% tax and 12% National Insurance), add back 9440 = Annual Net Pay. Divide by 52 for weekly net salary and then again by the amount of days normally worked each week for the daily net salary (customer may work less than five days a week) Higher rate 40% band , , , ,000 Higher rate 45% Over 150,000 for and To calculate salary for a Higher rate tax payer ( figures used) The Responder Hub should use the Basic Rate calculation for the first 32,011and the following for the remaining amounts over 32,011, but below 150,000; Annual gross pay (over) 32,011 minus 9440 (personal allowance) multiplied by 0.48 (to account for tax and National Insurance), add back 9440 = Annual Net Pay over 35,000 only. Add the Higher Rate Annual Net Pay (HRANP) amount to the Basic Rate Annual Net Pay (BRANP) amount for the total Annual Net Pay. (NB: You will also need to account for a further 2% of National Insurance contributions on all pay above 797 per week or 41,444 per annum Divide by 52 for weekly net salary and then again by the amount of days normally worked each week for the daily net salary (remember that the customer may work less than five days a week). The personal tax allowance stated above ( 9440) applies to the tax year. This allowance will increase each year. Information about the personal tax allowance can be found at All these tax rates will be subject to at least annual change. We should change the guidance to give a worked example but state that the actual rates and thresholds must be checked and give links to the HMRC website.] 78

79 Loss of National Insurance Contributions (NICs) Where maladministration has caused a customer loss of earnings the customer will most likely also not have paid National Insurance Contributions (NICs). However, they would be able to voluntary class contributions to make up the gap(s) in their contribution history Customer Service Operation responder hubs on behalf of Immigration Enforcement and UK Visas & Immigration directorates and Border Force complaints handlers should consider requests for NI contributions when supporting evidence is submitted by the customer. This ensures consistency with the policy that a customer must provide receipts for losses incurred Customers can obtain information directly from HM Revenue & Customs which will highlight any NI gaps in the last six years and what payments they would need to make to HMRC in order to bridge that gap. Customers should be advised that they can obtain this information via the National Insurance Hotline on Customers will be expected to make payment with HMRC and to obtain evidence of this payment has been made. The customer should submit this evidence to the complaint handler for payment. Student loan deductions Customers will be expected to make payment with student loan company themselves and to obtain evidence of where this payment has been made but a proportional adjustment did not occur when the day s salary was deducted. The customer would need to submit this evidence if this situation occurred. Loss of benefits / The Department for Work and Pensions (DWP) will not generally pay benefits unless a person can show that they have indefinite leave to remain (ILR) or they are an EU citizen exercising their treaty rights. Tax credits may be claimed by customers who are in work but are low paid. Tax credits and benefits are paid directly into bank accounts or into post office card accounts In some circumstances a customer may request reimbursement of benefits or in work tax credits due to maladministration. People who have been granted ILR as a refugee may claim backdated Tax Credits and Child Benefit if they make a claim through HM Revenue and Customs (HMRC) within three months of the grant of leave. Ex gratia payments should not be made where the customer could have made a complaint within the three month period and failed to do so without reasonable cause In some cases decision letters may have been sent to the wrong address or may not have been served them at all. This could have prevented applicants from claiming backdated benefits from the DWP or HMRC within the requisite timescale. The Responder Hub should consider offering an ex gratia payment for loss of benefits in these circumstances The Responder Hub needs to obtain the following information in order to assess claims for loss of benefits: Date applicant would have been entitled to payments (this is the date they claimed asylum) Date ILR was granted Whether the applicant received asylum support payments, Local Authority or a charity (this will determine whether they are in fact entitled to any other benefit) 79

80 Date asylum support ended, or from the Local Authority or charity (if support was received) How much benefit the applicant would have been entitled to: Frequency of the benefit payments (Job Seekers allowance is paid every two weeks, but carers allowance is paid weekly in advance) Information regarding entitlement to Income Support or Job Seekers Allowance can be obtained from the Information regarding any support the applicant received can be obtained from the case owner, the applicant s Local Authority or the charity in question. Requests to Local Authorities or other third parties should make clear the request is, in the requestor s judgement, consistent with the Data Protection Act Suggested wording for the request is provided below; The Data Protection Act operates to safeguard information which states that personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless one condition in Schedule 2 is met, and, in the case of sensitive personal data, Schedule 3 also. The UK Visas & Immigration [Responder Hub name] / Border Force requires a copy of [insert details of required document(s)] for [insert legitimate reason for requiring the information]. Any disclosure made will comply with the Data Protection Act should we require it for our immigration function as the processing is for a government function therefore Schedule 2(5)(c.) and Schedule 3(7)(c.) are met, respectively If the applicant has been receiving asylum support payments and or the Local Authority payments or a charity, complaint handlers should establish how much they received during the period in question and establish how much benefit the DWP would have paid during the same period. If the applicant would have received more money from the DWP the difference should be paid Claims involving maladministration prior to 14 June Prior to 14 June 2007 those granted refugees status or humanitarian protection were able to claim backdated payments if the complaint handler accepted that the delay in deciding their status was a result of maladministration. They would have been paid the difference between the Job Seeker s Allowance rate at that time and actual payments they had received in asylum support from their local authority and NASS during the time that their asylum claim was being determined. On 14 June 2007, following the introduction of the integrated loan scheme for those granted humanitarian protection or refugee status this ceased. There may still be some cases where maladministration occurred before 14 June 2007 which resulted in the applicant being unable to claim backdated benefits with the Department of Work and Pensions before the change in policy. These cases require consideration of whether financial redress including backdated benefits may be granted by the Home Office. Case study Mr B is a higher rate tax payer who applied for a Tier 1 visa. He attended PEO on June 2013 and completed his biometrics but unfortunately there were IT failures in PEO and his biometrics failed. He B was asked to attend PEO again in August

81 Mr B requested return of his application fees for both days paperwork and parking charges. He also requested 2 days reimbursement of salary and provided a wage slip as evidence. Mr Bs employer was asked to provide details of his contract or confirmation of his gross salary and the basis on he was employed which as his wage slip did not provide this information and how many days per week / per year Mr B worked. Mr B is paid on a monthly calendar year basis. Calculations are done on annual gross pay, but we do not make payments including tax and therefore the net rate is used. A higher rate tax payer has a personal allowance, pays tax on the basic rate and then on the higher rate of tax. Consideration Mr B is higher rate tax payer earning 140,000 during First calculate Mr B s basic tax rate as he earns more than this. 32,010 minus the personal tax allowance of 9440 multiplied by 0.68 (to account for 20% tax ) = x 0.68 = Add back the personal allowance. = Basic rate annual net pay. 140,000 minus 9440 =130, ,560 multiplied by 0.48 = now add back the personal tax allowance of 9440 = Higher rate annual net pay Add the two rates of pay together to get the total rate of pay = 96, % national insurance rate on all earnings above 797 per week ( 41,444) ,444 = 55, ,452.4 divided by 100 X 2 = = 54, Add in national insurance rate based on weekly rate 54, ,444 = divided by 52 and then again by the amount of days worked 5 = Variations when calculating salaries. The Home Office only reimburses for actual loss of 81

82 salary. Had Mr B been part time and attended one of the appointments on one his non working day. Evidence would have been needed of his working pattern from his employer. The first appointment would have been necessary for his visa processing; the second would be a direct result of an IT failure. If Mr B s attendance fell on both his non working days we would not reimburse for salary he would not have been paid, but would consider the impact of the inconvenience for one of the day s attendance. Had Mr B been paid gross on a 3 month contract based on days worked per week, excluding weekends, the calculation would have been based on the average net day pay rate based on 60 working days for the contract. If Mr B were self employed, his appointments or work would generate a gross payment. Unless he earned below the personal allowance and provided evidence of this, a net (tax deducted) payment would always be paid. Legal fees Responder Hubs and Border Force will only consider reimbursing customers for legal fees if the costs have been incurred as a direct result of its maladministration and the customer could not reasonably have been expected to take any further steps of their own in trying to resolve the matter without recourse to legal assistance A customer must have made a complaint to the Immigration Enforcement, UK Visas & Immigration and Border Force and allowed them a reasonable opportunity to resolve the matter before consideration will be made to paying court fees and other costs incurred The Responder Hub should obtain the following information in order to assess a claim for an ex gratia payment for legal fees: A detailed breakdown of the legal fees from the solicitors including what the fees were for (letters, telephone calls, meetings, preparation of documents). Confirmation that the bill has been settled by the customer (the Home Office cannot pay the representatives directly as the contract is between the representatives and their client). Refunds of application fees Chapter 1A of the Immigration Directorates Instructions (IDI s) details the policy with regard to refunds & fee exemptions for Immigration applications and claims There is no current power in law to refund the fee paid for any application for which a fee is specified in the Fees Regulations. However, in certain circumstances, it is appropriate to refund the fee Immigration Enforcement, UK Visas & Immigration and Border Force will not refund a fee if someone applies for something even though they do not meet the requirements of the immigration rules or other relevant legislation If an error amounting to maladministration is made by the Home Office, there is a legal obligation to take suitable remedial action. Where a fee is involved, the Responder Hub should 82

83 take such action as may be necessary to ensure that the applicant is not disadvantaged financially by the maladministration. Some examples of maladministration are: Handling Errors: A customer s passport has been lost within the UK Visas & Immigration directorate, and as a result an endorsement has been made on a status document. The applicant has subsequently obtained a new passport and submitted a paid application for a No Time Limit (NTL) stamp or Transfer of Conditions (TOC) endorsement. Misleading Advice: A customer has been given misleading advice by Immigration Enforcement, UK Visas & Immigration and Border Force. In any cases of this sort, there will need to be supporting evidence. If it is alleged that the incorrect advice was given by an Immigration Enforcement, UK Visas & Immigration or Border Force source, confirmation of maladministration should be obtained from that source to determine if a refund is appropriate. Other factors should also be taken into account, such as any relevant information on the Home Office website or in the application form (or accompanying guidance notes) An applicant has been given misleading advice by an entry clearance officer. An example of this was the misleading information given by entry clearance officers in Islamabad and Bombay to people issued with spouse visas between 2002 and This particular example, which resulted in premature applications for ILR by visa holders who had travelled late, is one where there was an alternative to refunding the fee - the premature application was held until the qualifying period had been completed. Other circumstances justifying a refund of fees In addition to cases involving maladministration there are other circumstances in which, as a matter of policy, a refund will be appropriate. The customer would not necessarily be entitled to a refund of other expenses but each case would need to be decided in its own right. NTL or TOC applications where the passport is not one recognised by UK authorities Applications by members of the home forces or diplomatic staff who are still exempt from immigration control Unnecessary applications for ILR by people with indefinite leave to enter or remain in the UK who have misread the residence permit in their passport and do not realise that they already have indefinite leave Applicant applies for TOC/NTL but has no passport to transfer the endorsement into TOC applications where the applicant asks for a multiple entry visa to be endorsed in a new passport. This is not a service which the Immigration Enforcement, UK Visas & Immigration and Border Force can perform Applications for leave to remain from within the Common Travel Area but outside the UK Applications for leave to remain submitted from outside the Common Travel Area An application for leave to remain or NTL by someone who is a British citizen or had the right of abode in the UK at the time of application Applications for a certificate of approval for marriage or civil partnership by any of the following: an EEA national a family member of an EEA national exercising treaty rights a person who is exempt from immigration control a British citizen or other person with the right of abode in the UK a person who has indefinite leave to enter or remain a person who entered the UK with an entry clearance to marry the same proposed spouse or civil partner 83

84 Where a postal or online application has been withdrawn within a short time of being made, that is before it has been entered onto the case working system (e.g., CID), or within 7 calendar days of the date of application, whichever is the earlier date Where an applicant dies before the decision on their application is despatched Whilst the above scenarios are not a comprehensive list of situations where a refund would be considered, circumstances beyond these should only be based on compelling reasons. Circumstances where a refund will not be considered: Application or claim is withdrawn Application or claim is refused Applications made too early Where an application is made for limited leave to remain, but it appears that the applicant already has the appropriate period of leave Where an applicant applies for NTL and they have been naturalised before the date of decision, but after the date of application Where someone granted leave as a refugee is applying for that leave to be transferred into their national passport Where an EEA national or their family member makes a charged application for leave to remain in the United Kingdom Case Study Ms F wished to get married. Ms F entered the UK on a fiancées visa, intending on return to her country for 5 months. She then intended to apply to return to the UK as a spouse in line with the requirements of her visa. Ms F contacted the Croydon contact centre and was told the advice from the UK embassy in her home country was incorrect and she could apply for FLR (M) The marriage went ahead and Ms F, now Mrs F contacted Solihull and was told again that she could apply for FLR (M) in the UK. She double checked this by calling again and was put through to another section. Mrs F submitted her application, supported by her husband and this was refused. The refusal letter apologised that the advice from the contact centre was incorrect. Evidence included supporting information from the original application and contact centres recording which had resulted in the apology being issued and an acceptance that the information provided had been misleading. On this basis redress was offered which included the cost of the application fee as part of the ex gratia payment as the application was made on the basis of incorrect advice, plus a payment for distress. (See section 12.6) Appeal Fees.. Reimbursement of appeal fees fall under the remit of Ministry of Justice in cases when the judge makes a direction as part of the appeal hearing. If you receive a claim where the fee is due to be paid by Ministry of Justice you can the details to appeals fees enquiries and advise the customer that you have chased this payment on their behalf. There will be occasions when the complaint handler/ex-gratia officer will see requests for reimbursement of the fees paid.. These will be judged on a case by case whether it is appropriate for reimbursement to be made. 84

85 12.6 Claims for non financial loss The usual approach to complaints where there is no financial loss or no evidence of a financial loss is to offer an apology and explanation. This may be appropriate is many cases and sufficient - people complaining may also want reassurance that mistakes will not be repeated In cases where maladministration has directly caused the customer exceptional distress, embarrassment, inconvenience, damage to health etc decision makers may consider whether an ex-gratia payment, a consolatory payment is appropriate Ex gratia payments for non-financial loss will only be paid in exceptional circumstances and only where there is sufficiently compelling circumstances to justify such a payment Responder Hubs should consider issues and the level of distress. However the payments are consolatory payments and not intended to be based on a comprehensive assessment of the distress actually suffered as these are consolation payments only. These consolation payments are not intended to be based on a comprehensive assessment of the distress actually suffered. A consolatory payment should be offered when: Serious or persistent errors have been made. The Responder Hub / decision maker is reasonably satisfied that maladministration led to the distress as the customer has claimed Care should be taken to differentiate between ex gratia payments for actual financial loss and a consolatory payment. It is not appropriate to offer a consolatory payment instead of an ex gratia payment for actual financial loss where it has not been possible to obtain sufficient evidence to support the claim Each case must be considered on its own merits both in respect of whether a payment should be made and the amount that should be offered. This is necessarily subjective but should reflect the degree of distress experienced by the customer. Not everyone will react to the same circumstances in the same way; a harrowing situation for someone could be a minor inconvenience to somebody else When deciding claims for non-financial loss a Responder Hub would need to look at: How serious was the error caused by maladministration; How long the error has persisted; What is the impact of the error; What is the duration of the impact on the customer If there is an allegation that the maladministration has affected the customer s health, objective evidence of the impact on their physical/mental health will need to be provided. This may take the form of a report from their GP or evidence from an employer that they have been unable to work as a direct result of the ill-health. Decision makers should approach LAB for expert advice in physical / mental health cases such as: Complex cases, where evidence is difficult to assess, or; Cases where there have been multiple instances of maladministration causing distress; or 85

86 Cases where costs for financial loss AND non financial loss added together would approach 20,000 with a significant proportion potentially for non financial loss In some cases objective evidence won t be necessary where it is self-evident that severe distress would have been caused. An example would be a parent incorrectly being informed of their child s death. Case study Ms Z was seeking reimbursement for maladministration by Immigration Enforcement officers for damage to her property. Ms Z is resident in Scotland, but her rental property is located in London. A warrant was issued to an enforcement team on for 8 June 2013 for Ms Z s rented London property for then arrest of a suspected immigration offender. No-one answered at the property on that date and entry was made through a window. A copy of the warrant was not left on the premises on this visit. Because of this officers visited the property 2 days later. On this occasion the officers were let into the property by one of the tenants and during this visit damage was caused to internal doors which were forced and during the search of a false ceiling. Tenants were provided with their own keys to locked bedrooms within the property Ms Z claimed for 1 return flight, damage to the property during the execution of the search warrant and overnight accommodation. She also claimed for telephone calls stationery and postal costs. She further claimed that the tenant s property had not been left secure and this had caused additional stress and distress. The Home Office has no legal liability to pay for damage during the execution of a search warrant for an immigration offender. The damage in this case was caused during the visit 2 days later. An internal admitted that the warrant was out of date. The consideration On the basis of the evidence provided by Ms Z and the damage being done during the 2 nd visit for which the damage was out of date : Ms Z s return flight from Scotland to London, taking the average of 3 quotes for the dates she travelled and considering the distance and costs of rail travel. Accommodation costs again taking the average of 3 quotes from budget hotels. Damage to internal doors 50 ex gratia for distress and inconvenience. Ms Z s appeal Ms Z felt that 50 did not cover the distress and requested a higher consolatory payment on the basis the tenants property was not secured as directed in enforcement policy. This was refused as no damage had been done to the property to enter it one of the tenants had let the officers in. The whole property was therefore secure with no locks broken when the officers left it. Locks were broken during the search as tenants had locked rooms and officers wanted to ensure the immigration offender was within the locked accommodation, however the property itself was considered to be one property and was secure. A legal warrant would have covered all of the property Landlords & the Immigration Bill The Immigration Act 2014 provides responsibility for landlords to ensure tenants have the correct status to be within the UK before renting to them. This is being rolled out from 1 December

87 Effectively, the landlord will be required to check the immigration status of every adult who will occupy the premises as their only or main home, before they grant a tenancy agreement. If the person/people who will live there are all British, or EEA citizens, the landlord will not have to undertake any follow up checks and can rent the premises. They have to keep a copy of the documents they have checked for at least 1 year after the tenancy comes to an end. If a person who will live there has limited leave to remain in the UK, the landlord will have to undertake follow up checks, to confirm that the person continues to have the right to remain in the UK. When these checks will be required will depend on the length of the person s leave at the time that the tenancy agreement is first granted. If they are a visitor and only have six months leave, the landlord the landlord does not have to undertake the follow up check for a period of 1 year a 6 month follow up check would be disproportionately burdensome on the landlord. If the person is a student with 3 years leave, the landlord would not have to do the follow up check for a full 3 years. If, when they come to do the follow up check, the person s leave has expired, the landlord has to report that person s presence to the Secretary of State to maintain an excuse against a civil penalty for allowing occupation by an illegal migrant. While the landlord is not allowed to rent to an illegal migrant, or if they are in occupation, must report their presence to the Home Office, the landlord is under no obligation to evict an illegal migrant. They may choose to do so, but the scheme does not require them to. The scheme will not be retrospective. When it comes into force, landlords will only be required to check the status of new tenants and occupants; they will not have to make any checks on persons already in occupation. Decision makers will consider reimbursement or ex-gratia payments only as a result of maladministration. Decision makers in responder hubs are responsible for progressing cases as usual but should notify the owners of this guidance (BIU) and Borders & Enforcement Team Legal Advisers Branch of the types of cases being received. While a landlord will be under obligation to report any illegal migrants to the Home Office after follow up checks, the Home Office is not placed under any reciprocal agreement. It would not be considered maladministration for enforcement officers to legally and properly obtain entry to rented premises without notifying the landlord, even if the landlord has properly notified the Home Office of their presence in accordance with the act (once enacted). In considering whether reimbursement /ex-gratia payments for maladministration whether a penalty has previously been issued to a landlord should be considered as background information unless it is directly relevant to case for example if the penalty notice was issued in error and the landlord had notified the Home Office but the information was incorrectly registered for example. However multiple penalty notices issued to the same landlord or to the same company may possibly indicate claims for reimbursement/ ex-gratia which have been created without due care, inflated or to be fraudulent in some aspects. Decision makers are asked to examine the evidence submitted carefully Claims for unlawful detention All requests for reimbursement or for ex-gratia payments alleging unlawful detention should be referred to the Judicial Review and Litigation Team. 87

88 They will either take the case or provide their advice for Responder Hubs to consider. As the customer or legal representative has used the internal complaints process, their complaint if referred back should be considered within the complaints management guidance and the processes applied Death of a customer In the event of the death of a customer who has submitted a claim for an ex gratia payment because of maladministration and it is decided that compensation is appropriate then payment should be issued to the deceased person s estate If the next of kin submits a claim for compensation because he or she has suffered actual financial loss and that loss was incurred because he or she helped support the deceased person then redress should be offered in respect of the actual financial loss to the next of kin. Case Study Solicitors on behalf of Mr Xs estate requested consolatory payment as Mr X had wished to visit his country of origin to visit his mother s grave prior to his death. They provided background information as to Mr X s illness. Mr X had requested return his passport s return and this had been provided, although the search had taken a few weeks. Mr X s date of death and confirmation that he would have been fit enough to travel were requested. As this was not forthcoming, after 3 requests the case was closed. Back to top Back to contents 12.8 Ex gratia payment claims where there is a suspicion of attempted fraud The Home Office is committed to the prevention of fraud and the promotion of an antifraud culture. Like all Government departments it has a responsibility to protect public funds, Home Office directorates, Immigration Enforcement, UK Visas & Immigration and Border Force operate a zero-tolerance policy to all instances of actual, attempted and suspected fraud. The Home Office will investigate all instances and, in appropriate cases, will seek criminal prosecution and the recovery of its funds and assets The Fraud Act 2006 includes three classes of fraud: Fraud by false representation Fraud by failing to disclose information Fraud by abuse of position Fraud is considered to be any attempt to knowingly cause a financial loss to Immigration Enforcement, UK Visas & Immigration or Border Force All those who work for or on behalf of Immigration Enforcement, Visas & Immigration or Border Force have a responsibility to protect the financial interests of the Home Office and its assets. All members of staff are expected to ensure that Immigration Enforcement, UK Visas & Immigration or Border Force s reputation and assets are protected against fraud and to report any suspicions of fraud to their managers. All managers are expected to support staff members 88

89 who discover fraud and to ensure that all allegations are forwarded on to relevant unit for investigation or to the police Immigration Enforcement, UK Visas & Immigration and Border Force expect their staff, corporate partners and customers to act honestly at all times and to report immediately any suspicions that they have of any wrong doing. Immigration Enforcement, UK Visas & Immigration and Border Force will treat all reports in confidence and investigate all allegations to establish any wrong doing and protect its finances and assets Service complaints may result in an ex gratia payment to reimburse complainants for their time or lost property such as birth certificates and passports. There have been some instances of individuals submitting falsified receipts and bank statements in attempts to deceive the Home Office into making a larger ex gratia payment than would be due. This is a criminal act and all members of staff and managers should be aware of the potential for fraud when dealing with claims for ex gratia payments. Any member of staff who has suspicions about the validity of any claim for an ex gratia payment must make their manager aware without delay to limit any potential losses to Immigration Enforcement, UK Visas & Immigration and Border Force. Where it is suspected that the customer has supplied documentation that is false the National Document Fraud Unit should be consulted. Further details can be found on the National Document Fraud Unit webpage on Horizon Whilst all genuine claims for ex gratia payments must be paid within current guidelines a policy decision on how to proceed with a suspected fraudulent claim will need to be made by the Responder Hub. The general principle to be applied is that an ex gratia payment should only be paid where the evidence provided in support of that claim is valid. Where some of the evidence is valid and some of it suspect, an ex gratia payment should be paid for those parts for which the evidence is valid; no payments should be made where, on the balance of probability, the evidence is thought to be fraudulent The reasons for any delay in making an ex gratia payment must be written down and authorised at the appropriate level as these decisions may be subject to scrutiny at a latter date. The question to ask ourselves when making these decisions is are our actions reasonable in light of the facts we have? Investigations into potentially fraudulent ex gratia payment claims must be undertaken in a timely manner and the actions taken should be justifiable and fully-documented. Where there is good evidence that fraud may have occurred, the case should be referred to the police for investigation as soon as practicable Those involved in the processing of a suspected fraudulent claim should keep auditable notes of their actions and decisions. Any documents and correspondence received could potentially be used as evidence in a criminal trial and should be stored in a secure location with limited access Claimants should not be informed that they are under suspicion as this could compromise any potential criminal investigation. 89

90 Complaints Registration Form This form is available for use by all staff in the Immigration Enforcement, UK Visas & Immigration Home Office to record complaints: Where local resolution has been tried and been successful Where local resolution of complaints has been unsuccessful and a record is required On behalf of customers who wish to make a complaint, but are unable to write down the details themselves. Under the Equality Act 2010 staff should be prepared to be flexible in ensuring customers with a disability are able to make complaints about the standard of service provided by the Home Office. It is also includes complaints about the professional conduct of our staff and contractors. Please provide as much information as possible, continuing on as many pages as necessary or attaching documents if these are available. 1. Details about the complainant. Surname Date of Birth Nationality Address First name HO case reference Tick box if this affects children Post code Telephone Contact address if different from above Post code Mobile 2. Details of the complaint 90

91 2. Details of the complaint continued Please send to: Central Point of Receipt, 11 th Floor, Lunar House, 40 Wellesley Road, Croydon, CR9 2BY Or they may send an to: 91

92 Appendix B - Features that may indicate abuse The following is a brief list of features highlighted in the Home Office Code of Practice on Keeping Children Safe from Harm (available on Horizon) that can be used as signs in identifying cases where a referral may be appropriate. They include: Bruising; Scarring; Burns; Very poor hygiene including untreated infections and infestations; An unusual level of withdrawal or lack of communication and engagement with adults; Fearful attitude to carers; Inappropriate approaches to strangers; Inebriation of adult carers; Signs of domestic violence between adults and carers; Rough handling or contemptuous attitude to the child by carers; Evidence that adults in the household have convictions for sexual or drug offences. Unexplained names changes Parents who register a birth under an alias When dealing with applications on paper, caseworkers must look beyond the principal applicant and take full account of any child on the application. Relationships and the date of birth must be checked as well as the history of applications and, if a child is suddenly included or dropped when compared to a previous application, caseworkers must explore the circumstances Remember this list is not exhaustive and decisions should be made after taking into account and weighing individual factors. Children without adult care Unaccompanied children When an unaccompanied child approaches the Home Office for asylum they will be screened and immediately put in the care of the local Children s Services Department, who will assume responsibility for their welfare. However, in some cases where a child has entered as part of a family or with a carer, these relationships may break down or parent(s) can abandon children in the UK. If this happens, referral will need to be made to Children s Services as soon as possible if they are not already aware of the situation. If it is not immediately apparent that this has been done, checks should be made with the case owner. Children who arrive separately from their parents or guardians Where a child has entered the UK after their parent(s) (or other responsible adult) particular care should be taken. Where the child arrived in the UK after their parent(s) and the parent(s) have a previous asylum/human rights claim that has been refused, the requirement is that the child must be presented in person at a LEO or Local Immigration Team where they will be fingerprinted, interviewed on method of entry and relationship to the adult and recorded on CID. In all cases, it will be necessary to obtain the parent(s) file. The child s relationship to and the identity of their parent(s) must be established by the caseowner and recorded on CID notes and on the file. For example, there may be evidence from: 92

93 If the case owner has established that the child is in the care of their parent(s), or an acceptable adult carer, or is covered by an adoption arrangement recognised in the UK, and there is no evidence to suggest that the child is at risk, then no further referral action would be necessary. If it is not apparent that this has been done, checks should be made with the case owner. Where the child is not in the care of their parents nor in a recognised arrangement (adoption or private fostering) and the child is deemed to be in immediate danger, an immediate referral to Children s Services or Child Protection Teams should be made. Children who entered the UK as part of a pre-existing family group are less likely to fall into one of the risk categories listed above however, the nature of the relationship with the adult(s) responsible for their care, usually their parent(s), but which may also be an adult sibling, should be established before continuing with the case. If it is not apparent that this has been done, checks should be made with the case owner. Private fostering A private fostering arrangement is essentially one that is made privately (between the birth parent(s) and foster carer without the involvement of a local authority) for the care of a child who is under the age of 16 (under 18, if disabled) by someone other than a parent or close relative for 28 days or more. Private foster carers may be from the extended family such as a cousin or great aunt or may be a friend of the family or someone unknown to the family (i.e. not a relative under the Children Act, so not an aunt, grandparent, step-parent or sibling). It is a legal requirement for a private foster carer to notify the local authority of a private fostering arrangement, and is an offence without reasonable excuse, to fail to do so. Where it is believed that an arrangement may be a private fostering arrangement and the caseworker is satisfied that the local authority has not, or will not, be notified, the situation should be reported to Children s Services. If you cannot see that this has already been done, please contact the case owner to check. Back to contents 93

94 Annex C Making a Child Welfare Referral 5.1 Who should make a referral? It should not be assumed that the case owner for a family s or child s application is solely responsible for identifying whether a child is at risk. Any contact, e.g. interviews, phone calls, or written correspondence, between an individual child or the adults who care for them and Immigration Enforcement, UK Visas & Immigration and Border Force, present another opportunity to re-evaluate whether that child may be being harmed or at risk of being harmed. Safeguarding Children is an ongoing process and just because a child did not appear to be at risk of harm when first encountered does not mean that the situation has not changed since Every member of staff, including those handling complaints, has a duty to apply the training they have received to identify children at risk of neglect, abuse or harm whilst undertaking their normal duties. If during the normal course of their duties in this case, whilst handling or responding to complaints a child at risk is identified, staff should contact Police and/or Social Services about their concerns, if there is no record of a referral having been made previously. Home Office paper and electronic records should also be updated to ensure others in Immigration Enforcement, UK Visas & Immigration and Border Force and Border Force are aware of the referral. 5.2 Identifying children at risk of harm The Keeping Children Safe E-Learning courses and Children in Need guidance issued to Immigration Enforcement, UK Visas & Immigration and Border Force should help staff to recognise child protection issues and identify cases where referral is appropriate Staff have a responsibility to make a referral to Local Authority Child Safeguarding Services if there are signs that a child is: experiencing or may already have experienced, abuse or neglect; under 18 and has no adult to care for them; under 16 and is not living with adult parent(s) or adult siblings; or in the case of an unborn child, likely to experience harm or abuse. A potential victim of exploitation or trafficking Staff may also make a referral if young people, parent(s) or carers: require the assistance of a welfare agency to support the family; or need help to cope with a disability or other special need All cases involving children (whether accompanied or unaccompanied) must be assessed against a list of basic indicators that may show that they meet one of the categories listed above. Although in most cases this will already have been done by the case owner or by staff at the point of arrival in the UK, complaints handlers should still consider whether any information that has been provided as part of the complaints process might indicate a change in circumstances that now places a child at risk of harm Indicators that may raise concerns could be where there is evidence that the child: is in the UK without their natural parent(s); has been abandoned by their parent(s); arrived in the UK with family members but has since left the family unit and made an application in their own right; arrived in the UK with an adult but has since submitted an application in their own right; was part of a family unit on a previous application but has left the family unit and there is no evidence of where the child is now (see ) 94

95 appears to be in a private fostering arrangement but there is no evidence of this arrangement being registered with Children s Services and/or no referral to Children s Services has been made; has changed their principle carer since they last had contact with the Immigration Enforcement, UK Visas & Immigration and Border Force; has an application made on their behalf by someone who is not their natural parent; or There is evidence on file that the child has previously come to the attention of Children s Services, Educational Welfare, Police or other agencies that have had concerns for any aspect of a child s welfare/safety. Child s identity is in question or of concern If a member of staff receives or identifies information during the handling of a complaint, e.g. whilst checking Home Office electronic records, that could be an indicator that a child is at risk of harm and it is not apparent that a child safeguarding referral has been made, the case owner should be contacted to confirm what the position is and, if appropriate, agree who should make the referral Similarly, where a member of staff identifies that a referral to local authority child safeguarding services has been made in the past but there is no clear outcome, they should make contact with the department that were previously dealing with the case to ensure that there is no ongoing action. The Home Office file and CID should then be updated to record any exchanges and proposed further action. 5.3 When to make a referral If a member of staff notes any of the above indicators they should discuss their concerns with their line management and seek agreement to making a child welfare referral.the type of referral will depend on the urgency and whether immediate steps to protect the child should be taken In cases where it is believed the child is in immediate danger the relevant Duty Social Work Team or Duty Child Protection Team should be contacted. This may involve an emergency call 999 call to the Police A referral to the local authority Child Safeguarding Services must be made in the following circumstances: When there are any visible features of abuse (see Appendix B: features that may indicate abuse); When a child appears to have no adult to care for them and Children s Services do not appear to have been notified; (see Appendix B: Children without adult care) When a private fostering arrangement has been identified; (see Appendix B: Private Fostering) When a child is a potential victim of trafficking; (see Appendix B: Trafficking) When a child is identified as having gone missing; (see Appendix B: Missing Children) Where there is evidence that adults in the household have convictions for sexual or drug offences If a member of staff has concerns about a child that do not fall into one of the above categories, they should discuss their concerns with their line management and decide 95

96 whether to make a referral. The Office of the Children s Champion (OCC) would be able to offer advice on particularly difficult or sensitive cases. 5.4 How to make the referral Initial phone call The referral must be made immediately by telephone to the Local Authority. (Contact details for each Local Authority can be found in the Social Services Yearbook.) In that call the person making the referral must: where possible, agree the proposed course of action to be taken by the Local Authority; and note the names of people (and contact details) with whom contact has been made; and state in the telephone call that the referral will be confirmed by sending through an of a completed Home Office Referral to Child Welfare Services Form (ASL.2558) A written record must then be made on the HO file of when and how the referral was made and a copy of the completed Referral to Child Welfare Services form on Horizon should be retained on file. The referral must also be noted on the applicants CID notes so that this information is available to all Immigration Enforcement, UK Visas & Immigration and Border Force and staff who may have contact with the relevant child or family. Completion of the Referral to Child Welfare Services form All referrals to Children s Services should be made using Referral to Child Welfare Services form available on the Keeping Children Safe from Harm webpage. Referral to Child Welfare services Use the Guidance on Referring Children to Welfare Agencies is located on Horizon to assist in its completion. Referral to Child Welfare services Remember to: include as much accurate information as possible on the form; obtain consent (if required) to share the information; ask for written acknowledgement of the referral; confirm any agreed proposed course of action to be taken by the Local Authority. 96

97 5.5 After the referral has been made Once the local authority has confirmed that they have received the Referral to Child Welfare Services form POISE / INDIGO, a copy of the confirmation should be placed on the investigation file. The HO file and the CID record should also be updated with: the confirmation of receipt; any decisions taken (clearly timed, dated and signed); and the names (and contact details) of the people with whom contact has been made The child may already be known to Children s Services. However, only when there is written confirmation from Children s Services that the child has been removed to a place of safety or that Children s Services have checked that the child is safe and no further action will be taken by them should it be considered that there is no further action required by Immigration Enforcement, UK Visas & Immigration and Border Force Any further discussions and/or correspondence with Children s Services should be recorded on the HO file and on CID. Similarly, any advice provided by line management and any agreed action and review dates should be recorded, too. Finally, the Children s Co-ordinator should also be provided with details of the referral and confirmation of the final outcome A referral to Children s Services does not automatically preclude the continuation of a PSU investigation or prevent a line manager from resolving a minor misconduct complaint. The purpose of the referral is to notify the Children s Services that there may be a child at risk in their area and that they are responsible for the welfare of that child However, there may be circumstances where it is appropriate to delay making or issuing a decision until the local authority have completed any action they are taking. This will depend mainly on whether the child s circumstances have a direct bearing on the matter complained about, or they have an impact on how the child can be involved in the complaint investigation or resolution process. 6. Reporting professional abuse 6.1 Immigration Enforcement, Visas & Immigration and Border Force may receive complaints or allegations from the public about the behaviour towards children of a staff member who has contact with children as part of their official duties. These should be categorised as serious misconduct complaints and sent to the Professional Standards Unit (PSU). 6.2 In all cases in which it is alleged that a person who works with children has: Behaved in a way that has harmed, or may have harmed, a child Possibly committed a criminal offence against or related to a child; or Behaved towards a child or children in a way that indicates s/he is unsuitable to work with children a Senior Investigating Officer will report the matter to the Public Protection Unit of the relevant Police force. 6.3 A Superintendent for that force will decide whether the matter has reached the threshold for referral to the relevant Local Authority Designated Officer (LADO) within Children Services; or, alternatively, whether to refer the matter for PSU to investigate Back to contents 97