Francisca Lewis-Allagoa T/a Feelma Lewis-Allagoa v Office of the Immigration Services Commissioner

Background.

Francisca Lewis-Allagoa, trading as Feelma Lewis Allagoa, the appellant, applied for continued registration to the immigration services commissioner, the respondent, by application received on 17^th August 2007. She requested registration at Level 3 in all categories for herself and for Marion Owoyinfa.

By decision dated 31^st March 2008, the respondent granted limited registration to both the appellant and Marian Owoyinfa.

By Notice of appeal dated received on 29^th April 2008, the appellant appealed against the decision to vary her registration.

The appellant applied for suspension of the decision until the hearing of her appeal. I suspended the decision by decision dated 1^st May 2008.

The respondent served a notice in reply dated 27^th May 2008.

The hearing was fixed for 4^th and 5^th August 2008.

The Hearing.

The appellant appeared and was represented by Paul Corben.

The respondent was represented by Tom Cawcutt.

The parties asked for and were granted time for discussions about the appeal.

We began the hearing. We heard and granted a further application for more time.

We said that we felt that the hearing could properly be split into 2 parts: the first to decide the lawfulness of the decision and the second to consider the merits. The lawfulness concerned the points raised in the refusal to suspend dated 1^st May 2008 and the notice of appeal, ground 1.

The parties agreed to our hearing the question raised by ground 1 of the appeal as a separate and discrete matter. We adjourned to allow the advocates to assemble their thoughts.

We sat at 1145. The appellant’s advocate argued that the restriction in the 4 areas of work to “level 3 excluding human rights work” [see page 4 of appellant’s bundle] was not in accord with the Immigration and Asylum Act 1999 was unlawful and was of no effect. He rehearsed Ground 1 of his notice of Appeal [see page 10 of appellant’s bundle]. He argued that even if the restriction was within the Respondent’s powers as set out within the Act, it was unenforceable. He argued that as all areas of practice must include Human rights law, the practical effect was to prevent the appellant from work.

The respondent’s advocate took us to the relevant sections of the Immigration and Asylum Act 1999; section 82, [see pages 21 & 22 of appellant’s bundle], Schedule 6 paragraph 3(6), [see page 21 of appellant’s bundle] and Schedule 6 paragraph 2(2) [see page 20 of appellant’s bundle]. He argued that when Human Rights advice is given in relation to other immigration matters, then it [human rights advice] becomes a relevant matter within the meaning of those words in Section 82. He argued that the restriction “level 3 excluding human rights work” fell within Schedule 6 paragraph 2(2). When pressed to identify which subsection he relied upon, he referred us to Schedule 6 paragraph “(2)(d) “in specified circumstances” [see page 20 of appellant’s bundle]. When asked how the appellant should apply the restriction, he sought further instructions from the caseworker and offered to call her to explian how the restriction would work in practice. When asked if the restriction should appear on any list of fees, he conceded that it probably should. He argued that such a restrict mtion was clear and enforceable.

Decision.

We allow the appeal.

Reasons.

We are sure that the words “level 3 excluding human rights work” does not fall within Immigration and Asylum Act 1999 schedule 6 paragraph 2(2), [see page 20 of appellant’s bundle]. We construe 2(2)(d) “in specified circumstances” as referring to circumstances in which advice is given, not the area of advice that may be given in those circumstances. We construe specified field of advice in 2(2)(a) as referring to the areas set out in section 82 and as covered by the areas set out in the respondent’s Guidance on competence, page 7.

Further and in any event, we consider that the limitation is unenforceable in practice. “Human rights work” can arise in every aspect of immigration law. If this limitation were to remain, then the only safe way for the appellant to go forward would be to refuse all work save Asylum work at level 1. Such was clearly not the intention of the respondent.

4^th August 2008. HH Judge Cripps.