Geneva Immigration Consultants v Office of the Immigration Services Commissioner

By letter dated 6^th August 2002, the Immigration Services Commissioner, the respondent, wrote to Geneva Immigration Consultants, the appellant, to inform them of a complaint by Ms Dada-Balami.

By letter dated 7^th November 2002, the respondent informed the appellant that the complaint was proved and the appellant had contravened paragraph 9(a) of the code of Standards and Rule 15 of the rules. The respondent decided to record the complaint and his decision on it.

By Notice of Appeal, received on 26^th November 2002, the appellant appealed against the respondent’s decision.

The Appeal was heard on Thursday 6^th March 2003.

The Appellant appeared and was represented by G R Woolridge of counsel. J Auburn of counsel represented the respondent.

The Appellant called Mr and Mrs Pastor as witnesses. The Respondent called Mrs Dada-Balami and Mr Copus as witnesses.

We reserved our decision. [Rule 24(1)].

DECISION.

The Appeal is allowed. We direct the Commissioner to quash the decision recorded under paragraph 9(1)(a) of schedule 5 and the record of that decision. [Section 88 (2)(d)]

REASONS.

We found the following facts.

The appellants have been registered with the respondent for some time. They have been audited. Their client care letter has been approved. The appellants offer the public an hour’s consultation for £45.00. At this initial consultation, general advice is given. The appellants explain the services available and the fees for each service. The individual then makes the decision whether to instruct the appellants.

If an individual wishes to instruct the appellants he or she returns for a further meeting. Full instructions are taken, the appropriate fee is agreed. All work done is for a fixed fee as set out in the appellants detailed fee list. A client file is opened and work begins. In such a case, the £45.00 initial consultation fee is credited as a part payment towards the agreed fixed fee.

Shortly before Friday 10^th May 2002, Mrs Dada-Balami telephoned the appellants. Mrs Pastor, for the appellants, explained their normal procedure as set out above. Mrs Dada-Balami said that she lived in Colchester that she could not come for an initial consultation, leave and then return. Mrs Pastor told her the fixed fee for the appeal being discussed was £595 plus VAT. Mrs Dada-Balami asked the appellants to act for her and arranged an appointment for Friday 10^th May to give full instructions.

On Friday 10^th May 2002, Mrs Dada-Balami attended the appellants. Her appeal was discussed at length. The fixed fee was agreed. A client care letter was filled in, checked by Mrs Dada-Balami and signed. Payment by two instalments was agreed. A cheque for £349.50 was signed by Mrs Dada-Balami and handed to Mrs Pastor. A VAT invoice was produced. The appellants opened a client file.

The cheque was paid into the appellant’s bank between 2 and 3 o’clock that afternoon.

At about 4 p.m., Mrs Dada-Balami telephoned the appellants. She told them that the appeal had been decided on the papers and that she had received a written decision dismissing her husband’s appeal. Mrs Pastor gave her advice as to the steps open to her. An appointment was made for Mrs Dada-Balami to visit the appellants to discuss an appeal to the IAT.

There is a difference of recollection between Mrs Dada-Balami and Mrs Pastor as to the detail of that telephone call. We prefer the evidence of Mrs Pastor. Where her evidence differed from Mrs Dada-Balami, we accept the evidence of Mrs Pastor and reject the evidence of Mrs Dada-Balami.

Mrs Dada-Balami telephoned again on the 15^th May 2002. She told the appellants that she had decided not to progress the matter until her husband had seen the decision on his appeal.

Again, there is a difference between the evidence of Mrs Dada-Balami and Mrs Pastor relating to this telephone call. We prefer the evidence of Mrs Pastor and reject the evidence of Mrs Dada-Balami where it differs.

During that telephone call, Mrs Pastor told the Mrs Dada-Balami that the appellants would refund the fee paid subject to retention for work done.

Mrs Pastor wrote to Mrs Dada-Balami a letter dated 23^rd May 2002 setting out the position.

The respondent decided that the appellants are in breach of Code paragraph 9(a) and Rule 15(a). The respondent argues that the appellants did not warn Mrs Dada-Balami at the meeting on 10^th May 2002 that if she changed her mind and cancelled the fixed fee contract, she would have to pay a different lesser fee for work done on her behalf.

The appellants say that no client had ever acted in this way before. On 10^th May 2002 they had no reason to suppose that Mrs Dada-Balami might change her mind and cancel the contract. Such had never happened before. The fixed Fee was the only fee contemplated and agreed.

The appellants told us that there had been times in the past when they had been instructed to process an appeal for a fixed fee, that their preliminary paper work had achieved the desired result without the need to attend an appeal hearing and that, in those circumstances, they had felt honour bound to refund part of the agreed fixed fee. This they had done without complaint.

We are sure that when the fee was agreed on 10^th May 2002 neither party had any reason to suppose that Mrs Dada-Balami would change her mind and cancel the fixed fee agreement. Mrs Dada-Balami then had no intention to abandon any appeal. The appellants had no reason to think such might occur. The parties agreed a fixed Fee for the work to be done. The fixed Fee was the only fee agreed between the parties. There was no breach of Rule 15. The appellants fully explained their services and their responsibilities. They explained Mrs Dada-Balami’s responsibility to pay the fixed fee as agreed. There was no breach of Code paragraph 9(a).

Mrs Dada-Balami cancelled the agreement and asked for the return of all the monies paid. When such was refused, she complained to the respondent. We feel that her request for return of all monies paid was without merit.

12 March 2003 His Honour Judge Cripps.