Anthony Frempong t/a AR Immigration Consultants v Office of the Immigration Services Commissioner

Background:

Anthony Frempong, trading as AR Immigration Consultants, (“the Appellant”), initially applied to register as an adviser with the Office of the Immigration Services Commissioner (“the Respondent”) on the 12^th July 2004.

The Appellant’s registration at the initial application was approved at Level 2 in categories to include 2 & 4 and Level 1 categories on Entry Clearance, Nationality and Citizenship and EU and EEA immigration law. This registration was based on the results of a competence assessment and Mr. Frempong’s policies and procedures. No case files were reviewed or audited during this process as Mr. Frempong was not authorised to provide immigration advice and services prior to being registered with the Respondent.

The Appellant applied for continued registration on the 9^th November 2005 for Level 3 in all categories. However there was no supporting documentation to support the application. The Application was approved for continuation, only at the levels previously permitted, on the 1^st December 2005.

Following an audit and competence assessment conducted on the 1^st March 2006 the Respondent made a decision on the 8^th May 2006 to reduce the Level at which the Appellant were permitted to operate as advisers from Level 2 to Level 1 for Categories 2 & 4. By way of Notice of Appeal dated the 2^nd June 2006, the Appellant appealed to IMSET against this decision and further applied to suspend the Respondents decision pending the hearing of the Appeal [Rule 10].

On the 5^th June 2006 HHJ Cripps heard the application by the Appellant to suspend the Respondent’s decision pending the substantive hearing by IMSET. Judge Cripps refused that application and in his ruling summarised the application thus:

“The decision to reduce the Appellant from Level 2 to Level 1 was made after a Level 2 competence test and an audit of his work. The Notice of Appeal says that the wrong files were chosen during the audit and asked for time to correct any faults. The Appellant does not deal with his test results. The Notice of Appeal is more in the nature of a confession and request for time rather than a robust statement that he is competent at level 2.”

The substantive hearing of the Notice of Appeal dated the 2^nd June 2006 was heard on the 2^nd August 2006 and is set out in the Judgement of Appeal No: IMS/2006/7/RV3A. That Appeal was dismissed and the Tribunal on that occasion were satisfied on the balance of Probabilities that the Respondent “was operating with identified extensive shortcomings for a Level 2 advisor” It is interesting to note that the Tribunal recorded that the Appellant accepted the issues raised by the Respondent.

The Respondent carried out a further audit of the Appellant’s premises and paperwork on the 9^th January 2007. This audit raised concerns as to the quality and level of the Appellant’s work. An identified issues Report (“IIR”) dated the 30^th January 2007 was sent to the Appellant. The audit showed inter-alia that the Appellant had continued to operate and advise at a level higher than authorised and effectively had ignored the reduction in his registration from Level 2 to Level 1, despite the ruling in his unsuccessful Appeal of the earlier decision to IMSET in August 2006.

The Appellant applied to the Respondent for continued registration on the 8^th December 2006. The Appellant was then registered at Level 1 and sought registration at level 2 for all areas except Asylum. The Respondent refused the application and cancelled the Appellant’s registration by decision letter dated the 24^th may 2007. By Notice of Appeal, received on the 14^th June 2007, the Appellant appealed against the Respondent’s decision. Acknowledgement of Appeal [Rule 6] was sent to the Appellant and a copy of the Notice of Appeal was sent to the Respondent on the same date. The Notice of Appeal included an application to suspend the Respondent’s decision pending the substantive hearing of this appeal. The application to suspend was determined by HH Judge Cripps on the 28^th June 2007 whereby he refused to suspend the Respondent’s decision.

Accordingly this is an appeal under Section 87(2) of the Asylum and Immigration Act 1999 (“the Act”) against a further decision of the Respondent this time dated the 5^th May 2007, to exercise her power under Paragraph 3(5) of Schedule 6 in not renewing the Appellant’s registration as a provider of immigration advice and services at Level 1 and not to grant registration at Level 2.

On the first day of hearing on the 26^th September the Appellant sought an adjournment so that he could seek legal representation. This Tribunal reluctantly agreed to adjourn to the 27^th September for this purpose. The case then proceeded to a full hearing on the 27^th September 2007 and although the Appellant had by then decided to proceed without legal representation because he had been unable to find such in the time given, it is the view of this Tribunal that the Appellant’s case could not have been presented better than it was by himself in all the circumstances.

The Issues:

The Respondent’s evidence in support of the decision of the 5^th May 2007 indicates breaches of the Respondent’s Code of practice and in particular breaches of Rule 55 which provides; “An adviser must have the necessary skills, knowledge and competencies to meet his or her client’s needs. An adviser must not advise or act for a client beyond the scope of these skills, knowledge and competencies nor beyond the level at which he or she is registered or exempted to do so. --------” and of Rule57 of the Code which provides; “An adviser operating at any given level of activity must have knowledge, competencies and resources relevant to that level of activity as set out in the Guidance on Competencies published by the Commissioner”.

On the 9^th January 2007 the Respondent carried out an audit and written assessment of the Appellant.

The Respondents chief concerns arising from the case file reviews at audit were that out of nine case files reviewed, five Level 2 cases were opened prior to June 2006 (when the Appellant was restricted to Level 1) and should have been referred on to a competent adviser at that point, but were not. They had substantive work carried out by the Appellant conducted on them after June 2007. Further, three new cases had been taken on at Level 2 again after June 2007. Four of the files reviewed were judged to have been handled incompetently.

The Evidence:

This Tribunal heard at length from the Appellant and from two case workers on behalf of the Respondent (i.e. ML and VP). This tribunal were impressed with all the witnesses before us.

In short the Appellant candidly and honestly conceded that he had worked at Level 2 after he had been told not to do so. He further conceded that he advertised for, and took on Level 2 cases when he should not have done so. He explained that this was an oversight on his part and agreed it was a serious oversight for which he made a sincere apology to the Respondent and to this tribunal. He however thought that the respondents’ decision was unfair in all the circumstances.

When asked by this Tribunal how the respondent had acted unfairly and in particular, what she failed to take into account that she should have, or what she took into account that she should not have, he indicated that the respondent should have taken into account his age and his mortgage.

Decision and Reasons:

This Tribunal dismiss this appeal.

This Tribunal found the evidence of the caseworkers employed by the respondent to be overwhelming against the Appellant. He had clearly acted outside and beyond his competence despite clear indications and warnings that he should not do so. The decision of the Respondent that is under appeal was in our view correct in the circumstances.

This Tribunal were however impressed to an extent by the Appellant. He was honest and forthright in the presentation of his case, he did not try to evade his wrongdoing in any devious or underhand way. His advocacy was commendable. We accept that he was working hard and apparently with a high rate of success. However he was acting outside his level of recognised competence and this was despite adequate notice and warnings and a previous ruling against him at IMSET. In these circumstances, despite any sympathy that might be had for his position, this Tribunal must refuse his appeal. It could never be the case that the Respondent should or could take into consideration the Appellants age or his mortgage and the Respondent’s decision could not be considered unfair in the circumstances.