Shahid Aziz t/a AA Group Legal Services v Office of the Immigration Services Commissioner

IN THE IMMIGRATION SERVICES TRIBUNAL APPEAL NO: IMS/2007/5/RNV

IMMIGRATION ASYLUM ACT 1999

AA GROUP LEGAL SERVICES

Appellant

and

THE IMMIGRATION SERVICES COMMISIONER

Respondent

Before:

Mr. George Marriott – Chairman

Mr. Mahmud Quayum

Ms Orla Conway

Sitting at Procession House, 55 Ludgate Hill, London EC4M 7JW

Dates of Hearing:

5^th and 6^th September 2007

Sent to Parties: 17/09/ 2007

DECISION AND REASONS (RULE 24)

INTRODUCTION

1. Reference to documents is by reference to the paginated bundles and added to during the hearing. The Respondent’s bundles have the prefix R, and the Appellant’s bundles have the prefix A. As both parties submitted more than one bundle, reference will be made to them by the numerical suffix. A number of extra documents were brought to the hearing, and those have been paginated accordingly. Many of the documents were referred to by Counsel during the course of the hearing and therefore it is not intended to refer to them extensively in this decision.

2. Throughout the hearing both parties were represented by Counsel who submitted to us various documents by way of opening submissions and closing submissions. We were very grateful for the way Counsel were able to come to a measure of agreement over the documents which were germane to the appeal and to the reduction in the number of witnesses to be called to give evidence by an agreed summary.

3. The Tribunal have made it plain before, and this is embodied in its directions, that whilst there must be full disclosure of documents pursuant to the Rules, it is incumbent upon the Appellant to agree with the Respondent which are the relevant documents and which should therefore be put in the trial bundles. We were not helped by having a complete set of documents from the Respondent and a further set of documents from the Appellant with some evident duplication, and a lot of material which was not relevant to the issues before us.

BACKGROUND

4. On the 14^th September 2006, the Appellant made an application for continued registration. The Appellant is a sole trader namely Mr. Shahid Aziz, and he employed a qualified advisor namely Mrs Iffat Baig. The application was to continue registration of Mr. Aziz at Level 3, and to increase Mrs Baig from Level 2 to Level 3.

5. By a decision letter dated 4^th April 2007 (R1/1-7) the Respondent varied the Appellant’s registration by reducing the level of Mr. Aziz from 3 to 2, and maintaining Mrs Baig’s level at Level 2. In terms therefore the organisation could only operate up to and including Level 2 whereas before it had enjoyed Level 3 status.

6. It appeared that the reasons for this fourfold namely the poor quality of appeal submissions viewed during file reviews carried out during the Respondent’s audit of the Appellant’s premises, the failure of the Appellant to submit sufficient evidence of relevant training, the failure to ensure that a Level 2 advisor was working under the appropriate supervision of a Level 3 advisor, and the poor quality of an appeal presented to the AIT on the 12^th January 2007 (R1/6).

BURDEN AND STANDARD OF PROOF PURSUANT TO RULE 22 OF THE IMMIGRATION SERVICES TRIBUNAL RULES 2000

7. The burden of proof was on the Appellant to prove to us the facts upon which he relied on the balance of probabilities.

THE LAW

8. The Immigration and Asylum Act 1999 (“the 1999 Act”) states:

Section 83(5) – the Commissioner must exercise her function so as to secure, so far as is reasonably practicable, that those who provide immigration advice for Immigration Services:

(a) are fit and competent to do so.

Schedule 6 Paragraph 3(5) states as follows:

If the Commissioner considers that an Applicant for continued registration is no longer competent or is otherwise unfit to provide immigration advice or immigration services, he must cancel the Applicant’s registration.

Schedule 6 Paragraph 3(6) states:

Otherwise, the Commissioner must continue the Applicant’s registration but may, in doing so, vary the registration:

(a) so as to make it have limited effect in any of the ways mentioned in paragraph 2(2); or

(b) so as to make it have full effect.

Schedule 6 Paragraph 2(2) states as follows:

Registration may be made so as to have effect:

(a) only in relation to a specific specified field of advice or services;

(b) only in relation to the provision of advice or services to a specified category of person;

(c) only in relation to the provision of advice or services to a member of a specified category of person; or

(d) only in specified circumstances.

MRS BAIG’S APPEAL

9. It was unclear from the Notice of Appeal (R1/9-28) whether Mrs Baig was appealing the decision to maintain her status on Level 2. In other words was her appeal against that decision, so as to increase her competence to Level 3.

10. Further clarification came to the Tribunal by a letter dated 21^st July 2007 from the Appellant which confirmed that as far as her appeal was concerned, it was not against the decision by the Respondent not to allow her to move up from Level 2 to 3, but insofar as it affected her, was to allow her to resume submitting appeals to the AIT as a part of Level 2 work.

11. We saw a letter from the Respondent dated 28^th August 2007 which indicated that this was not a decision from which we could consider any appeal because it was not a decision which engaged Section 87(3) of the 1999 Act.

12. After submissions heard on the first day, both parties asserted that the Tribunal had no jurisdiction, and we agreed. Nonetheless, we were concerned that the caseworker had sent her a letter (R1/133) indicating that Mrs Baig must cease work at Level 3 including work undertaken under supervision which appeared to be work that she could properly do at Level 2, provided she was supervised by a Level 3 advisor.

13. It also seemed to us that the Respondent’s guidance on competence dated May 2005 at page 7 drew a distinction between asylum work, which the Appellant did not generally do, and entry clearance, leave to enter, or leave to remain work which was the Appellant’s bread and butter. The table at page 7, did not have the qualification “in exceptional circumstances” with regard to the latter type of work. The Respondent pointed out page 11 of the same document where the words “in exceptional circumstances” re-appeared and it seemed to us that the list of permitted work set out at page 11 referred in the main to asylum work. Nonetheless it was of some concern to us, and we hope this is a helpful observation to the Commissioner that if her interpretation of page 11 is correct, then there is an apparent contradiction between that and the table on page 7 as to the work that may be done by a level 2 advisor.

14. Mrs Baig’s appeal having been withdrawn, we then went on to consider the appeal made by Mr. Aziz.

THE EVIDENCE

15. Mrs Baig confirmed the truth of her witness statement (A2/81-85) and stated in terms that she had been drafting appeal notices and preparing bundles and appearing as an Advocate at the AIT from January 2006 under the supervision of Mr. Aziz. She confirmed that he regularly checked her work; that they discussed cases together, and he checked her research. She also confirmed that if she got something wrong Mr. Aziz took the file away and dealt with it himself if a client had complained; and in every case explained to her where it had gone wrong and would often return the file to her. She also confirmed that Mr. Aziz had watched her conduct advocacy at the AIT.

16. With regard to a specific appeal (Walia), which it appears the Respondent’s caseworker observed, she agreed that grounds of appeal were typical of overseas appeals rather than in- country appeals. The significance of that is referred to later in the evidence of Mr. Aziz.

17. She also confirmed that her assessment to raise her from Level 2 to 3 was conducted fairly (R1/98) and this was an assessment she failed, although it is indicative of the type of work that the Appellant did, that the failure covered an area of law, namely asylum which was not the general work done by the Appellant.

18. Mr. Aziz then gave his evidence and confirmed the truth of his witness statement (A2/69-76). He was initially referred to the Walia appeal, where the Respondent had taken the entire case file, and he was asked for his comment concerning the grounds of appeal (R2/517) which stated:

“The decision is against the Immigration Act 2002 and the Human Rights Act 1998. It is also against the Home Office Published Policy and Procedures.”

19. It was put to him that in drafting such a limited appeal, this did not demonstrate competence. He stated that the reason this was done, and emphasised that this was typical of overseas appeals rather than in-country appeals, was because he had to make a judgment what to put in against a refusal letter which did not have any reasons. He explained that to give reasons in the grounds of appeal would be to fabricate evidence and that he was acting in the best interests of his client by lodging an appeal in that way and then worrying about the detailed reasons at a later date once the paperwork had come to hand. He emphasised that as all his cases were done by a conditional fee agreement, he was careful over which cases he was prepared to take on. He agreed that when he drafted it, he did not know whether there would be a Human Rights Act argument to advance. It was put to him that he could have waited until the evidence materialised and then apply for permission to appeal out of time, but emphasised that this would then leave the client unprotected as he was relying upon discretion to be exercised by a Judge. In the identified issues report sent to the Appellant on the 9^th November 2006 (R1/106-111) he was asked to cease submitting generic and sparse grounds of appeal and responded by his letter (R112) to that effect. It is noteworthy that the Respondents did not seek any evidence of this, and it did not form a part of the rest of the correspondence between the Appellant and the Respondent leading to the decision on re-registration.

20. Furthermore it was drawn to our attention, and we accepted this, that Rule 8(c) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 made a distinction between the statutory list of appeals which by their nature are brief, and are likely to be replicated; and the requirement pursuant to Rule 8(d) to give reasons in support of the appeal. We were told that the distinction was important and we accepted this, because the AIT’s permission would be required before any of the grounds of appeal could be altered or amended (Rule 14) whereas there was no restriction in respect of the reasons in support.

21. The other case which was highlighted by the Respondent was the case of Jalia. Adopting the same principles, it seemed to us that the Appellant did his best for his client and was unable to obtain documents which would allow him to expand the reasons for the appeal without his client’s co-operation. It transpired that that co-operation was not forthcoming.

22. Mr. Aziz then went on to detail his supervision of Mrs Baig. It appeared that he had told his previous caseworker (DW) some time in 2005 (A2/23) that Mrs Baig was a trainee at Level 3. In addition to the contents of his witness statement he confirmed that with regard to supervision he would often give Mrs Baig a file and ask her to prepare a skeleton argument which he would then go through with her. He stated that the notes of the review were taken down and agreed that the only review notes concerning the Walia file were set out at R2/455. He indicated that the format was the same, but that earlier, when she required more supervision, the comments would be more detailed. He also drew our attention to the supervision procedures (R1/63).

23. When cross examined concerning the absence of notes on the Walia file, he indicated that notes were only made where something had to be done. Nonetheless he emphasised that he conducted weekly reviews with Mrs Baig and confirmed that if nothing had to be done on the file at the end of the week then nothing was noted.

24. He was taken to the client care letter (R2/450) which stated:

“I Shahid Aziz shall be personally responsible for looking after your case. Other members of staff and Counsel may assist me from time to time.”

25. In terms it was put to him that this was a misleading letter because Mrs Baig appeared to be conducting the case. His answer, which we accepted for its candidness, was that he was supervising Mrs Baig; it wasn’t a question of her assisting him; that he, Mr. Aziz, was the only non-supervised Level 3 advisor and therefore the client care letter was appropriate and it had been approved by the Respondent. It was suggested that because he did not attend at the Walia appeal that he wasn’t supervising her. Again he candidly indicated that when she started presenting appeals he went to Court and did not completely stop. He also stated, and we accepted, that in October 2006 he went through all the cases conducted by Mrs Baig and under his supervision and noticed that she had been successful in 80% and came to the conclusion, properly as we concluded, that there was no longer any further need for close supervision and that random sampling would be sufficient. Much emphasis was put on the facts of the Walia decision where the Immigration Judge appeared to misapply the law by, in terms stating that he could admit no further evidence to go behind the decision of the Entry Clearance Officer (ECO).

26. We saw a detailed skeleton argument prepared for that hearing (R2/360-364) which led us to the conclusion her supervision by Mr. Aziz made her fully equipped to deal with such an argument where of course the law is clear- namely that the AIT can consider evidence adduced after the ECO has made his decision as long as it relates to “circumstances appertaining at the time of the decision to refuse”. ( Morocco [2005] UKIAT38).

27. Our attention was drawn to page 55 of the Commissioners Code of Standards which provides properly that advisors cannot work beyond the level at which they have been registered, but Codes 21 to 28, explain that there is a means by which advisors can move up from one level of competence to another through training whilst being effectively supervised. It seemed to us that Mr. Aziz applied Codes 21 to 28 effectively and satisfactorily.

28. Mr. Aziz then gave evidence concerning the training which he had undertaken. There is no doubt that between the identified issues of report and the letter of registration, the correspondence between the Appellant and the Respondent seemed to be going in different directions with Mr. Aziz not being clear what the Commissioner wanted, and the Commissioner not fully comprehending the significance of what had been supplied.

29. The summary of Mr. Aziz’s evidence was that he was fully trained in the work that he did, and that he wished to vary the training in 2005/2006 by using an ILEX course as the principal source of training for himself and Mrs Baig. He stated that he notified his caseworker (DW) of this at the time. DW no longer works for the Commissioner but the documents produced appear to confirm the notification. Those documents are the audit report made in August 2005 (R2/694 onwards). In that audit report, there is clear reference to the ILEX course although it was suggested in a submission from the Respondent that the ILEX course was to be combined with some further specific training. From the documents and the evidence, we were unable to resolve that difference.

30. In his evidence, Mr. Aziz highlighted exactly what the ILEX course covered and candidly told us that if he had been told the ILEX course was an inappropriate course he would not have done it. In a letter to the Respondent, the Faculty of Professional Studies set out what was in the ILEX course (A1/30-32). Mr. Aziz asserted, and we accepted, that such a course did have considerable bearing upon the work that he did, and would assist him in giving an enhanced client service.

31. Our attention was drawn to Codes 56 and 58 of the Code of Standards promulgated by the Commissioner which provide properly that the advisor must have ready access to up to date information on immigration law and practice, and written procedures to how it would be kept up to date; and in addition must be able to show that the relevant knowledge competences and resources have been acquired and are being reviewed in order to ensure that they are being kept up to date. Our attention was also drawn to the Guidance on Competence again promulgated by the Commissioner and in particular that section headed “Advocacy and Representation” under Level 3.

32. It seemed to us that as the Respondent had not been specific in what training was required over and above what was set out in the Code of Standards and Guidance on Competence, and having reviewed the work undertaken in the ILEX course, and with the knowledge which this course was being undertaken, Mr. Aziz could not be fairly criticised for doing that course and we concluded that it was sufficient evidence of relevant training, and in particular for the preparation and presentation of appeals.

33. We then heard from Mr. C. McW a Barrister who attested to Mr. Aziz’s knowledge of the relevant law and practice based upon his readings of the skeleton arguments prepared by Mr. Aziz, coupled with the thoroughness of the prepared bundles. This evidence was not challenged.

34. There then appeared to be a large number of live witnesses who were prepared to attest to the qualities of Mr. Aziz. We were grateful to Counsel who reduced the sum of their evidence into one agreed statement which is the summary of all the statements of the witnesses namely Mr. H, Mr. K, Mr. S, Mr. A, Mr. A, Mr. A, and Mr. M. This read as follows:

“Mr. Shahid Aziz has provided free and paid for immigration and nationality advice to the people mentioned in the witnesses statements found in supplementary bundle A.

A number of the witnesses referred to by Mr. Aziz believe that his advice, including advising on prospects of success, was correct.”

35. The caseworker employed by the Commissioner, RM, then gave her evidence. She confirmed that the contents of her witness statement dated the 30^th July 2007 were true. There was no cross examination of her but following questions from the Tribunal, she agreed that there was no continuing professional development training (CPD) in use by the Commissioner (unlike the legal profession). The only guidance was that set out in the Code of Standards and Guidance on Competence (see above).

36. She stated that in her view the training the Appellant had had via the ILEX course was not sufficient and confirmed her witness statement (paragraph 36) that:

“I did not find this sufficient, as the relation to this subject area to the law on the immigration of people in business is likely to have been minimal, if covered at all”

and in paragraph 26, stated that:

“the registration at Level 2 took account of the insufficiency of training in immigration law and in preparation and presentation of appeals.”

37. At paragraph 25 of her statement, she stated “in light of this, it appeared that the only way to ensure that the organisation do comply with the terms of Code 55 was to reduce the organisations level of registration to Level 2”.

38. She stated that having heard Mr. Aziz giving evidence, her view had not changed and also asserted that the ILEX course was insufficient for Level 2 or indeed Level 1.

39. A colleague, ERJ, then gave evidence in accordance with her witness statement dated 14^th August 2007. She was not questioned upon it.

DECISION