THE IMMIGRATION AND ASYLUM ACT 1999
THE IMMIGRATION SERVICES TRIBUNAL
APPEAL NO. IMS/2003/007/RCD
APPEAL NO. IMS/2003/008/RCD
APPEAL NO. IMS/2003/010/RCD
TOTAL LEGAL SERVICES
APPELLANT
-V.-
THE IMMIGRATION SERVICES COMMISSIONER
RESPONDENT
BEFORE:
GEORGE MARRIOTT CHAIRMAN
MAHMUD QUAYUM
SUSAN ROWLANDS
sitting at
48/CHANCERY LANE, LONDON WC2A 1JR
HEARING DATES
9 TO 12 Sep 2003
DECISION AND REASONS (RULE 24)
Background
1. Reference to documents is by reference to the paginated bundles, prepared by the Respondent, sent to the parties before the hearing, and added to during the hearing.Where the number is prefaced by the letters “ws”that means a reference to the bundle containing witness statements.We were able to read all the documents placed before us and many were referred to by counsel during the course of the hearing.It is not intended to refer to them extensively in this decision.
2. The Commissioner made three determinations, the first two dated the 12th of March 2003, and the final one dated the 16th of May 2003. The determinations followed investigations by the Commissioner, which led him to conclude that there had been a number of breaches of the rules, and the code of standards which he had issued. The extent of the breaches are set e in the determinations at pages 15, 71, and 152.
3. With regard to appeal 007 the allegations were that the Appellant contravened paragraph 16 (e), and (j);and paragraph 50 (d), (e), and (f) of the Code of Standards.
4. With regard to appeal 008 the allegations were that the Appellant contravened paragraph 16 (e)and (j);and paragraph 50 (d) and (e) of the Code of Standards; and paragraph 12 of the Rules.
5. With regard to appeal 010 the allegations were that the Appellant contravened paragraph 16 (e), and (j);and paragraph 50 (e) of the Code of Standards; and again paragraph 12 of the Rules.
6. At anearlier stage the Tribunal had made a ruling that all three appeals should be heard together as there was a considerable overlap of the evidence, and it seemed to the Tribunal that it was in the interests of justice and the expedient dispatch of Tribunal business that the three matters should be heard together. We were concerned to note that there was a 4th appeal. We were told it was part heard before a differently constitutedTribunal. We remind the parties that they have a duty to notify the Tribunal of all cases they have before the Tribunal so that consideration can be given ,if appropriate, to consolidation. We were surprised to note that although the Commissioner had notified the Tribunal of these three , he had made no mention of the 4th. The matters came before the Tribunal because following the determinations the Appellant exercised his right to appeal pursuant to section 87 (2) of the Immigration and Asylum Act 1999.
Burden and standard of proof
7 . Pursuant to rule 22 of The Immigration Services Tribunal Rules 2000, the burden of proof was upon the Appellant who had to prove to us the facts upon which he relied on the balance of probabilities. However at early stage, we asked the Respondent's Counsel whether criminal or fraudulent conduct was being alleged against the Appellant in view of the wording of the determination pursuant to paragraph 50 (d) which reads as follows:
“ not knowingly mislead the immigration authorities, any court, tribunal or adjudicator nor knowingly permit themselves to be used in any deception”
8. Whilst Counsel for the Respondent, made it plain that she was not alleging a criminal or fraudulent conduct, it seemed to us following the authority starting from Derry v Peek and ending in the case of Twinsectra, that that was precisely what was being alleged against the Appellant. Counsel for the Appellant agreed with us. If fraudulent or criminal conduct was being alleged, then the burden of proof shifted from the Appellant at to the Respondent, and the standard was raised to beyond reasonable doubt.
9. During the course of the hearing, Counsel for the Respondent abandoned the two allegations contrary to paragraph 50 (d) which affected appeals 007 and 008 respectively.
Interpretation
10. Counsel for the Respondent encouraged us to take a broad view with regard to the evidence that we would hear; and also take a broad view over the structure of the determinations. She also submitted that the determinations embraced a breach of paragraph 49 of the code of standards (acting in the best interests of the client) and section 84 of the Act (the criminal prohibition of providing immigration advice or services unless registered). Counsel for the Appellant submitted that the determinations amounted to the exercised by the Commissioner of a disciplinary function and therefore they should be given a restrictive meaning. We agreed with that submission. The appeals before us were appeals from a disciplinary function exercised by the Commissioner, and therefore these proceedings amounted to an appellate procedure from a disciplinary function of the Commissioner and therefore the Appellant, upon whom the burden of proof now lay, was entitled to assume that he need only deal with the determinations as found by the Commissioner, and was entitled to assume that any ambiguity would be construed against the Commissioner.
The facts in brief
11. Total Legal Services (TLS) was a partnership between two individuals YO, and EF operating from Lewisham. They were registered with the Commissioner. Early in 2002 they were introduced to OO who was not registered with the Commissioner, and who had inherited a number of immigration files. Because he was not registered, he could not progress the files. An agreement was entered into whereby TLS opened a new branch in Battersea and employed OO as branch manager.NI was engaged by EF as a secretary and receptionist at the Battersea branch. The branch was to be closely supervised by YO and EF
12.NI described herself as a senior caseworker (27) and attended at Eaton House in April 2002 to represent Mr and Mrs K.. It appears that she was instructed to do so by OO, but only to take notes. She also had a business card. FMcG,an immigration officer, reported her concerns which amounted to NI giving advice when she was not registered.
13. TLS wrote a number of letters concerning NM ( 91,95 98,104,and107.) The letters should only have been written by registered individual. OO stated that they were so written , but the Commissioner thought otherwise.
14. At the same time the Commissioner was concerned that TLS had not notified him of the opening of the Battersea branch.
15. TLS also wrote a number of letters concerning Mr and Mrs K. (pages 191, 193, 209, 211, and 213 ) . It was suggested that those letters were also written by OO. In so far as the letters amounted to standard letters OO accepted that they came from him poorly adapted, but that any letter which progressed the case came from EF.
16. The Commissioner had these matters drawn to his attention, decided to investigate TLS and sent a summary of his concerns to which EF responded. The Commissioner was dissatisfied that with the responses, and issued the determinations.
17. At the same time criminal proceedings were commenced against OO for providing immigration advice or services when not registered contrary to sections 84 and 91 of The Immigration and Asylum Act 1999. It appeared that there were two counts on the indictment in the Crown Court; one concerned a time before OO was employed by TLS, and the other whilst he was so employed and involved the case of Mr and Mrs K.. During the course of the criminal trial Mrs K. gave evidence to the prosecution. The count on the indictment involving Mrs K. was dismissed by the judge following a submission that there was insufficient evidence for the case to go before the jury, but OO was found guilty by the jury on the other count. TLS were not aware of the criminal proceedings against OO, until they were notified by the Commissioner in early January 2003. They immediately terminated his employment.
The evidence
18. The first person we heard evidence from was OO. The material parts were that he contacted TLS at the end of January 2002 with a view to them taking over a number of inherited files relating to immigration matters and employing him. It was clear that he wished to register with the Commissioner that accepted that until he was so registered then EF or YO would have to manage the files. We got the impression that OO was frustrated that he could not manage the files particularly in view of his legal qualifications. He confirmed that NI was employed as a receptionist and secretary and that she was dispatched to Eaton House for the purpose of taking notes. He also confirmed that she was given no title within the firm and was not provided with any business card. He confirmed that he would have been shocked if he had known about the letter which described her as a senior caseworker (27). Responsibly he notified FE who summoned her for disciplinary proceedings. With regard to NM, he confirmed that he did not act as adviser and that the letters which progressed the case were in fact written by FE. With regard to Mr & Mrs K., he stated that the letters that were sent by him were standard letters and letters which did not progress the case and therefore letters which could be written by an unregistered person. He stated that when he saw Mr & Mrs K. there is no question of him stating that he personally would be acting for them progressing their case. Any hint of that was a misunderstanding by Mr and Mrs K.. The progress of their case would be dealt with by a registered person within TLS. With regard to the interview with RS (ws 45) any reference to him giving key immigration advice tshould be construed as a registered person within TLS giving that advice, and that he was the branch manager.Whilst he had this one criminal conviction ,we were impressede by his evidence.He had nothing to lose and his evidence was consistent with what he had previously written and stated.
19. After the hearing commenced we were given a transcript of the sentencing remarks of the judge who tried the criminal prosecution against OO dated the 15th of January 2003 and also the submissions and rulings made by the same judge concerning the case involving Mr and Mrs K.. The core of that case, and the essential element that the prosecution had to prove, was whether OO provided immigration advice or services. It appears to have been accepted that when Mrs K. gave evidence she did not describe any actual advice, with the result that the judge withdrew the case from the jury. We were invited to and did take account of the transcripts that we were given.
20. This was material because the next witness to give evidence was Mrs K.. In the criminal proceedings she had made a witness statement (181-2) and she confirmed the truth of it in these proceedings. She confirmed that in the criminal proceedings she gave her evidence by answering questions from Counsel . She also stated that she did tell the court that OO gave her advice , and that she was dealing with him and not TLS. Oddly she also stated that she did not know what the judge at the criminal trial was looking for; and then even more oddly that she only answered counsel’s questions “yes and no” giving the impression that all she was asked were leading questions;that she did not terminate her retainer with TLS until after OO was convicted on the other matter, and sadly that she still did not know her status within the immigration process.We were unimpressed by her evidence and concluded that she was keener to try to impress than give an accurate account of what had happened.
21.FMcG then gave her evidence (ws 7-9) she confirmed that she was not misled by any action of NI, but believed that NI looked older than her years, and reported the matters to RS.
22.FE then gave his evidence (ws 52-54) which was amplified in chief. He recorded a telephone conversation with RS in mid-February during which he agreed TLS had opened an office in Battersea and so the office would be named in the renewal application in April 2002. He confirmed that he never told OO to give immigration advice and was aware of the registration requirements for OO. He confirmed that any letters giving advice were drafted by himself or his partner, that OO was not empowered to give any legal advice and, and that the only persons authorised to have business cards were himself and his partner, and that NI was employed as a receptionist and secretary, are that she was not authorised to write letters such as (27) but that it was not possible to identify which client the letter referred to. He also said, and this impressed us, that in circumstances such as Mr and Mrs K.'s case, it would be desirable to have a note taker present. He confirmed that once the Commissioner told him of OO's conviction, his employment was terminated, and that he did not know of the criminal proceedings until then.
23. RB, an immigration officer at Gatwick,(ws19-22) then confirmed that she reported the case of NM because she was concerned that there had been two instances where judicial review was threatened but not pursued. It appears that her complaint was made to INDIS
24. RS (ws36-39) took notes of his telephone conversation with FE on the 13th of February. There is no doubt that he had a conversation relating to the Battersea branch. The description of the conversation is different from that as given by FE, and we had difficulty in accepting that the note from RS was entirely accurate. Indeed we were satisfied that the evidence from FE on this was more credible because we did not accept the assertion by RS that FE was easy to understand on the telephone. It was plain to us that FE was deaf, and had great difficulty in following the proceedings. We came to the conclusion as a matter of common sense that that would be more so in the course of a telephone conversation.
25. David Bevan (ws 23-24) is a colleague of RS. He telephoned the Battersea office in February following an intelligence gathering of information. He was told that the office was opening in a few weeks time. He possibly made a note of the information he gleaned, but no longer had it.
26. Clive Copus (ws 1-6) gave the last live evidence and confirmed that he was a caseworker and that his duty to was to investigate complaints made against organisations. He confirmed that he had taken over this case from another caseworker. He confirmed that the Commissioner delegated to him as caseworker the determination letter, although it was vetted by another colleague before it was sent out. With regard to the determination made under paragraph 50 (d) he accepted that nobody had been misled and therefore this determination must be wrong. With regard to the determinations under paragraph 50 (f) he initially contended in his evidence that if NI did something without the authority of the partners of TLS, then TLS had no case to answer. When it was put to him that the same principle applied to OO, it seemed to dawn upon him that both NI and OO were employees.He then retracted what he had said stating that any breach by an employee would amount to a breach by TLS. He went as far as stating that if the breach had been committed by the office cleaner then that would also be a breach by TLS, but because it was committed by the office cleaner he was sure that in those circumstances a determination probably would not have been made against TLS.
Decision
27 . Unanimously we allowed the appeals in full and gave a direction that the determinations recorded under paragraph 9 (1) (a) of schedule five of the Act must be quashed.
Reasons
28 . The determinations under paragraph 16 amount to the failure to provide a job description and the statement of skills and knowledge of NI and OO. The Appellant's case is that neither individual was required to be registered because neither gave immigration advice and therefore there was no requirement to provide a job description or a statement of skills. Indeed if TLS had provided such a document in respect of an individual that was not registered, the allegations made against TLS would probably be far more serious than those currently made. It is therefore difficult to understand the logic of making the determinations under paragraph 16 when it is common ground that neither individual was registered with the Commissioner. We therefore accept the Appellant's position as put by counsel, namely that it would be ridiculous for those documents to be in place. However we also considered as was accepted by Mr Copus, that he had never asked for the documents. In other words he had never asked the right question. We had some sympathy with the Appellant because if we were to construe the matter broadly, then whatever determination was made by the Commissioner, if he was entitled to put it right at the appeal stage, that had the effect of reversing the burden of proof which in disciplinary or quasi disciplinary proceedings must be wrong. Nonetheless in view of our reasoning at the start of this paragraph we did not feel the need to rule that on the primary point that made by the Appellant.
The real issue concerns paragraph 50. The case as put by the Commissioner was that the circumstances were such that it would be proper and reasonable to draw the inference that FE instructed OO and NI to do the matters complained of. It was put by counsel for the Respondent that the appeal could still be dismissed if we were to find that TLS had held out OO and/or NI as having authority to do what they did; alternatively that what had happened was as a result of a lack of supervision. We disagreed. The case was not brought on the basis of apparent or ostensible authority, and even if it had been, we were satisfied that there was no apparent or ostensible authority to either individual. We were less impressed by the second submission. Lack of supervision falls under a separate paragraph of the code, and formed no part of the determination by the Commissioner.
We were impressed by the evidence of FE . He struck as as a truthful and credible witness. We came to the conclusion that all letters which he said emanated from himself came from himself. It was not possible on what we heard to draw the conclusion that he put up OO andNI to do the things complained of against TLS. Indeed we were satisfied that he did no such thing.
We were also unimpressed by the evidence of Mrs K.. At the end of the day a criminal court has far greater forensic ability to tease out the truth. As a result of the evidence which Mrs K. gave, the judge took the view that he could not even leave the case to the jury. We know not whether Mrs K. has hidden agenda, but we do know that her immigration status is still unresolved, and we cannot reconcile the evidence that she has given before this Tribunal with the extracts of the evidence that we have seen from the transcript (as spoken by counsel). This led us to cast great doubt upon the evidence given by her. Of even more persuasive value was the one letter written extensively by OO dated the 15th of July which was after TLS had wind of the complaint that was being made. If it were the case is that FE was telling OO and NI to do the matters complained of, it is inconceivable that he would continue that course of action after he had knowledge of a complaint against him.Yet if Mrs K. is to be believed, that is exactly what happened.
Finally with regard to NI there was no direct evidence ,as she had disappeared, save that from FE who stated, and we accepted, that once he had evidence that she was pretending to be a senior caseworker, he commenced disciplinary proceedings and she left before those were concluded. The Commissioner has presented no evidence in rebuttal and we are satisfied that FE is telling the truth. It would in any event be quite extra ordinary for a 19-year-old who was not well educated and who had no qualifications to be sent out by FE as a senior caseworker.
Having come to the conclusion on the balance of probabilities that FE did not put up OO and NI then the determinations under paragraph 50 must fail and the appeal be allowed. For the reasons we have given above the appeal must also be allowed in respect of the determinations made under paragraph 16.
That leads to the determinations under paragraph 12 of the Rules. We were troubled by the ambiguous wording of rule 12. It it states as follows:
“a registered person must notify the Commissioner of the address of the premises from which the businesses carried out and must notify clients and the Commissioner of any change of that address within 10 working days of moving.”
Whilst counsel for the Respondent prayed in aid The Interpretation Act 1978 she conceded that this only applied to statutes. Her purpose of Submitting the Act was to demonstrate that singular could also mean plural. We took the view that even if that was the case it would not help the Commissioner because it envisaged only a change of address. The rule did not envisage the creation of a new branch. All it envisaged was the changing of an existing address. We accepted therefore that whilst there might be an obligation to notify the Commissioner of a new address, that there was no obligation to do so within the 10 working days as specified in rule 12. We were sshown evidence (183) that the Commissioner was notified on a form dated the 1st of March 2002 and stamped by the Commissioner as received by him on the 13th of March 2002. That form was an application for continued registration and under the space reserved for additional addresses, the Battersea address was inserted. Therefore th Appellant had complied with any reuirement and we therefore allowed the appeal against the determination under rule 12 of The Rules.
George Marriott
12th September 2003
