The Home Office often makes mistakes when exercising its immigration powers. The high appeal success rates bear testimony to this: as many as 50% of some categories of appeal are allowed. However, there are only some limited circumstances where it is possible to extract compensation from the Home Office by means of a court case. Unlawful detention is one example and retention of a passport can be another but pursuing a case is fraught with difficulty and risk.

What about other situations, such as loss of documents, mistaken identity, ruining a wedding based on duff “intelligence” or losing a job?

There is a little known scheme operated by the Home Office that enables compensation claims to be made without the intervention of the court. This is set out in the “Ex-Gratia Payments Financial Redress Guidance”. This explains that “An ‘ex-gratia’ payment is a sum of money paid when there is no obligation or liability to pay it.” A distinction is drawn between this and ‘compensation’ payments that “must be awarded by the court”.

The guidance explains that these claims are expected to be made within three months of the complaint being resolved or an issue taking place and no later than six years from the date of the event giving rise to the claim.

Documentary evidence is explicitly not required [paragraph 1.2.3 of the guidance] and where it is unclear about whether or not the event occurred or an assertion is true then a decision will be made on the balance of probabilities [1.2.4].

There are two grounds on which a request for an ex gratia payment can be made. The first is maladministration and examples given in the guidance include losing documents (less likely now that most documents are provided electronically), incorrectly addressed correspondence (including where grant letters have been sent to the wrong address leading to a loss of ability to claim backdated benefits), defacing or invalidating documents, taking incorrect action (such as endorsing a grant of leave with the wrong conditions), failure to respond to correspondence and giving incorrect advice.

Issues that are expressly described in the guidance as not amounting to maladministration include delays and cases that have been put on hold pending a policy change.  

The other basis on which an ex gratia payment can be claimed and made are where there are exceptional circumstances. This is where there has not been maladministration but someone has incurred expenses, the example given is if computer systems go down and people with appointments at contact centres incur additional expenses to make or travel to another appointment.

The general position is that payments will only be made for financial losses, the guidance states that “Consolatory payments for non-financial loss will only be paid in exceptional circumstances and only where there are sufficiently compelling circumstances to justify such a payment.” Consolatory payment can be made where the person has suffered injustice or hardship arising from “serious and persistent errors” [1.6.4].

A table in the guidance provides a list of circumstances where an ex gratia or consolatory payment may be made. This includes where interviews have been cancelled without notice, where delays have been caused by errors for example files being passed between directorates without action being taken and enforcement officers visiting an address wrongfully and incorrectly removing a person from the UK (the suggested payment for this last one is a woeful “Up to £1000”).

Earlier versions of complaints procedure were explicit about the ability to claim for reimbursement of financial loss directly resulting from Home Office errors as well as in exceptional circumstances where there was no financial loss, however the current version merely alludes to it by saying that people should provide “details of any reimbursement issues including papers and receipts to support your claim”. The ex gratia guidance is linked to without further explanation.

Payments from the Home Office can be expected to be few and far between, though, and only where it can clearly be established that the Home Office made a mistake of some sort. If you think you have a case for a payment, it should be pursued through the Home Office complaints process and the losses should be spelled out as clearly as possible and backed up with evidence. The guidance says that the complaints team:

should then send a letter apologising to the customer if maladministration has occurred and ask the customer to submit an ex-gratia claim if they wish along with any evidence to support their claim.

A review process is set out in the guidance and is available where the complainant is unhappy with the outcome of the ex gratia process and if still unhappy following the review, a case can be pursued to the Parliamentary Ombudsman. Substantial compensation can be ordered this way, both for direct financial losses and inconvenience or hurt feelings. There is a procedure that must be followed, which requires the Home Office complaints process to have been exhausted and for a referral to be made via your local Member of Parliament.

The process of seeking an ex gratia payment can be protracted, but all this can be done without the assistance of a lawyer and with no risk of having to pay the legal costs of the other side.

This article was first published in 2014 and has been updated by Sonia Lenegan.