Marylena Pnayiotou Shuti v Office of the Immigration Services Commissioner

Reference to documents in this decision are by reference to the paginated bundle prepared by the Appellant using the prefix A and to the paginated bundle prepared by the Respondent using the prefix R. Where reference is made to individuals, their initials are used so as to preserve confidentiality.

Following an exchange of correspondence commencing in September 2005 and the completion on line of an assessment for the Respondent’s Rules and Codes, the Appellant sent to the Respondent her completed application form with a view to being registered as an Immigration Services Provider at Level 3 with the Respondent. In terms, the Appellant wished to set up her own business through the vehicle of a limited company called Panicos Advice Limited to provide immigration advice and services at Level 3. The Respondent operates competence requirements under three levels and Level 3 is the highest.

To operate in her business, the Appellant required approval from the Respondent, a creature of the Immigration and Asylum Act 1999. To operate without the Respondent’s permission and without being registered by the Respondent, would amount to a criminal offence.

Within her application, the Appellant stated that she had criminal convictions for deception and bigamy. The Appellant was warned by the Respondentin a letter that those criminal convictions would be taken into account when assessing her fitness to be registered.

In March 2006, the Appellant provided the Respondent with further documents and explanations relating to her criminal convictions.

The certificate of conviction showed that on the 14^th April 2005 the Appellant was convicted on her own admission of an indictment containing four counts. The first count was an offence of bigamy committed in or about December 2004 for which she was imprisoned for one month. The second count was an offence of obtaining a pecuniary advantage by deception and was committed in or about June or July 2004 for which she was imprisoned for two months. The third count was an offence of obtaining property by deception and was committed on the 12^th October 2004. For this offence she was imprisoned for six months. The final count amounted to attempting dishonesty to obtain a money transfer by deception which was committed on the 6^th December 2004 and for which she was imprisoned for three months. All the sentences of imprisonment were ordered to run concurrently with the consequence that she was sentenced to an overall term of six months (A97).

The sentencing remarks (A98 to 100) made the obvious point that if there had been one offence, a merciful course would have been possible but there were four occasions of dishonesty. It was noted that the four occasions were between June or July 2004 and December 2004. It was also noted that two of the offences namely three and four on the indictment amounted to breach of trust namely the dishonest use of funds belonging to a deceased client of the firm where the Appellant was employed as a solicitor.

Following the conviction in June 2004, and as anticipated by the Judge, she appeared before the Solicitors Disciplinary Tribunal on the 1^st December 2005 and for four allegations of conduct unbefitting a solicitor was struck off the Roll (A101 to 104).

It is to be noted that according to the findings from the Tribunal, she admitted conduct unbefitting a solicitor and a number of salient points came out of the findings.

It appeared that with regard to the last count on the indictment, she had used a cheque from a deceased client and attempted to pay it into her own bank account. The bank returned the cheque on the basis that the signature was different.

With regard to the third count on the indictment, it appeared that the Appellant had drawn a cheque from a client bank account and which was ostensibly signed by the client. She had gone to some further trouble to cover her tracks by amending in manuscript the bank statement.

With regard to the second count on the indictment, she had effectively forged a letter which was apparently from a firm of solicitors acting for her which stated that an unfair dismissal claim brought by her had been settled out of Court in her favour. In fact the letter was wrong in two respects namely that it referred to an unfair dismissal case being settled in her favour where as in fact she had made a sexual discrimination claim which she had withdrawn. The forged letter was used to obtain employment elsewhere.

When she was questioned about the last count on the indictment she initially blamed a friend and went to some trouble to provide e-mails which she had sent to her friend and e-mails which it was alleged her friend had sent back to her in which she (the friend) admitted stealing the cheque. She subsequently stated that she said the first thing that came into her head. Whilst that may be the case, her subsequent conduct concerning the creation of bogus e-mails demonstrated some sophistication in providing back up to her story and clearly caused anxiety to the person she wrongly blamed.

The first count on the indictment namely bigamy related to her second marriage dated the 5^th December 2004. She had received no document confirming the Decree Absolute of her first divorce but based her belief that she was divorced on a telephone call she made to the Court a week before the wedding in which she claimed that she was told that the Decree Absolute had been granted. This was, we considered a surprisingly reckless thing to do particularly as she was a solicitor.

The sentencing remarks of the Judge, and the findings of the Disciplinary Tribunal, reflected that her case was a tragedy and her courage in coming to the Tribunal when she knew that the inevitable would follow namely her being struck off the Roll of Solicitors.

It seemed that the background to this amounted to her financial problems arising out of her personal relationships which led to her emotional distress (in this connection, see the Appellant’s life story (A42 to 48), and a more extensive life story which she submitted to the Respondent as part of her application for registration at R46 to 54.

Nonetheless the Respondent continued to process her application and recognised that she had considerable financial problems which possibly caused the commission of these criminal offences. It appeared that she needed £35,000.00 to consolidate her debts and also to provide for her wedding and general expenses in life (R50). A lender was only prepared to lend £29,000.00 and her attempts to borrow the balance namely £6,000.00 failed it seems because of a poor credit rating (R51). She was working on an estate file as a solicitor where she discovered that the estate was worth some £400,000.00 where the deceased was an elderly man who had left no family. That was the estate from which she obtained £6,000.00 by deception (R51).

In support of her application for registration, she provided documentation from the Prince’s Trust. It seemed that the trust were prepared to loan to her £4,000.00 in order to establish an immigration practice. It also seemed that she had been allocated a mentor who was also a solicitor who she would meet monthly, and who also had assisted in her getting accountants (A78 to 80).

Having considered her application, by letter dated the 13^th April 2006 (A39 to 41) the Respondent refused it.

The Respondent relied upon Section 83 of the Immigration and Asylum Act 1999 and in particular sub-paragraph 5 which states:

“The Commissioner must exercise her functions so as to secure, as far as is reasonably practicable, that those who provide immigration advice or immigration services a) are fit and competent to do so; b) act in the best interests of the client.”

The letter of refusal then recited the convictions, the sentence, the striking off the Roll of Solicitors, the support from the Prince’s Trust, and all other matters which the Appellant put before the Respondent but came to the conclusion that the Appellant was not fit to provide immigration advice and/or services to potentially vulnerable clients (A40).

Pursuant to the 1999 Act, the Appellant lodged her appeal dated the 24^th April 2006 (A49 to 50). The grounds of the appeal were that the Commissioner’s decision was unjust and unfair and that her previous disclosed conviction was not in breach of immigration law.

Directions were given by the Tribunal for the case to come on to trial and dates which were convenient to all the parties were established.

As this was an appeal from the Respondent, the burden of proof lay with the Appellant to show us that the Respondent was wrong and the standard of proof was that on the balance of probabilities (Rule 22(2) of the Immigration Services Tribunal Rules 2000).

By fax received on the 29^th June 2006 from a firm of solicitors, S, a consultant in that firm, and also the mentor for the Appellant appointed by the Prince’s Trust made an application for an adjournment. No medical evidence was attached to the application which was very late and on my direction, the Tribunal refused the request for an adjournment indicating that if an adjournment application was to be made, it would have to be on the first day of the trial backed with suitable medical evidence.

Over the weekend, the Tribunal received a letter from the Appellant directly again by fax and dated the 30^th June to which was attached a sick note expressed to be for Social Security and Statutory Sick Pay purposes only. The sick note was dated the 30^th June 2006 and stated that the Appellant should refrain from work for one week the reason being given as “post operative recovery”. The note also stated that the Appellant was pregnant and that she had been told to rest. With the covering letter, the Appellant indicated that her representative would not attend on the 3^rd July.

Before the hearing was convened, the Tribunal made attempts to contact S unsuccessfully. Accordingly the Tribunal faxed and e-mailed him with a request that he attend before the Tribunal at 2:00pm on the 3^rd July to explain further the reason for the adjournment and if it were refused to be prepared to continue representing the Appellant. A copy was also faxed to the Appellant. A response was received by the Tribunal before 2:00pm indicating that S had been forced to deal with his uncle’s serious illness as a matter of urgency and therefore he would not attend. The letter presumed, as did the first letter from the firm that an adjournment would be granted.

The Tribunal having convened at 10:30am, then adjourned until 2:00pm, listened to representations from the Respondent who opposed the adjournment, and we decided that the reasons given for the adjournment were insufficient and decided that in all the circumstances we would proceed with the case. We were also conscious of the fact that the Appellant had submitted full explanations for what she had done, and we were doubtful that any oral submissions could take the matter further than those documents which we had before us and which we had read carefully.

No witnesses attended for the Appellant but we had read carefully her witness statement (A70 to 77), her life story (A42 to 48), and the expanded life story (R46 to 54). We also read the statement of DD from the Prince’s Trust (A78), the statement of LL (A79 to 80), the statement of NS (A81 to 82). In summary, the Appellant’s statement whilst admitting the convictions, set out the background as to why those offences were committed. The statement of DD, which in summary supported her application for the appeal and indicated in terms that he supported her appeal, recognised the convictions and stated that she should be given another opportunity in life as she had paid for her previous mistake. The statement of LL, in summary did the same and confirmed that his firm were prepared to act both for her and the limited company she had formed to provide those services. It also stated that the Respondent had refused her application on the grounds that she was unfit and incompetent to provide immigration advice and services. Interestingly it stated that the incompetence was wrong as she clearly had a very wide knowledge on the subject of immigration law and as a qualified solicitor had specialised in that area in the past. He made no comment about her being unfit other than that she was full of remorse and that she wished to repay her debt to society by providing immigration advice and services to those in need.

The statement of NS again reflected knowledge of the crimes and that there were extenuating circumstances in respect of them. Without wishing to give a medical opinion, he stated that it seemed to him that there was every chance she was suffering from post natal depression. He also stated that the offences took place over a very short period of time and were out of character. Finally he recognised that she would be probably never able to practise again as a solicitor and asserted that not to allow the appeal would be a case of double jeopardy. He concluded that with him as mentor, and the accountant, he did not believe that she carried any threat to society whatsoever and would be perfectly competent fit and proper to be licensed to carry on the activities for which she brought the appeal.

The Respondent filed a reply, Geoff Temme who represented the Respondent at the appeal then called his evidence which amounted to the witness statement of NC. She confirmed the truth of her witness statement dated the 12^th June 2006. One typographical error was corrected namely that the tagging ceased in 2005 and not 2006. Other than that the witness statement faithfully recorded the process of the application leading to its refusal. She considered that an insufficient amount of time had elapsed since the commission of the offences and the serving of her sentence to enable her to demonstrate her fitness to provide immigration advice and services or for a better character to be established.

Finally Mr Temme drew our attention to the reply, and expanded slightly upon that in a closing submission.

Having heard the evidence, read the evidence, and read the documents, we came to the conclusion that the Appellant had not discharged the burden of proof; accordingly we dismissed the appeal.

The Appellant had refused to register the Appellant’s organisation called Panicos Advice Limited pursuant to paragraph 2(1) of Schedule 6 of the 1999 Act.

The Respondent was under a statutory duty pursuant to Section 83(5) of Part 5 of the 1999 Act to exercise her function so as to secure, so far as is practicable, that persons providing immigration advice or immigration services are, inter alia, fit to do so, act in the best interests of their clients, do not knowingly mislead any Court, Tribunal or Adjudicator in the UK and do not seek to abuse any procedure operating in the UK connected with immigration and asylum. The letter of refusal concentrated upon the Appellants fitness. It did not dwell upon her competence.

The issue before the Tribunal was therefore whether she was fit to be registered.

We noted that she committed the offences of obtaining property by deception and attempting to dishonestly obtain a money transfer by deception whilst working as a solicitor and having responsibility for the affairs of her deceased client. We noted that on the 12^th October 2004 she transferred £6,000.00 from that deceased client’s account to her own. On the 6^th December 2004 she attempted to take another £2,000.00 from the same client. We also noted that in June or July 2004 she had forged a letter, and finally we noted that she had committed the act of bigamy by marrying on the 5^th December 2004 when lawfully she was not permitted so to do. It is self evident that those offences were committed over approximately six months. It is also self evident that she admitted those offences and was sentenced to a term of six months imprisonment. All the offences involved dishonesty towards a client, a prospective employer, and a legal authority.

It seemed to us that whatever the mitigating circumstances were, she would be unlikely to be able to satisfy the Commissioner that she was fit to be registered as someone providing immigration advice and services. In addition, we did note with regard to the financial offences of dishonesty, that her need was for £35,000.00. She was able to borrow £29,000.00 which left her short of £6,000.00. Nonetheless having obtained £6,000.00 by a criminal offence, in October 2004, she went on to try to obtain a further £2,000.00 in December 2004. It seemed to us that even if she had not attempted to take a further £2,000.00, the taking of the £6,000.00 was bad enough. Further it seemed to us that the attempted taking of a further £2,000.00 destroyed her explanation. However we make it plain that even if she had not attempted to take £2,000.00 the appeal would still have been dismissed.

We noted that the Appellant set storeof the fact that she had not been convicted of an offence against immigration law (A49). Had she been convicted of criminal offences under Section 25 or 26 of the Immigration Act 1971, she would have been precluded from registration with the Respondent. That in our ruling does not mean that if she is convicted of other offences that she could be registered. Whilst offences under the 1971 Act amount to an absolute bar, other offences could be viewed individually by the Respondent to establish whether or not she was fit. In our view the commission of these offences established beyond doubt that the Commissioner was right in concluding she was not fit.

The Appellant also set store of the fact that the Respondent had not mentioned in her letter of refusal how she had performed at her Level 1 assessment or if her policies and documents were satisfactory. She asserted that that should be the basis as to whether she was “fit and competent”. She also asserted that having read the Respondents “guide to competence” that the Respondent did not seem to have followed the guidance she had given in her application as her skills and knowledge were not even mentioned in the decision.

We have come to the conclusion that the Appellant was labouring under a misapprehension. Fitness and competence are two distinct criteria. Competence clearly covers the ability of the Appellant to demonstrate her experience and to answer multiple choice questions. On the other hand fitness reflects her character and whether she was a proper person to operate as an immigration advisor. The Respondent properly took into account the convictions and the way the offences were perpetrated leading to the convictions and came to the conclusion that she was not fit. At the end of the day she had perpetrated offences against the estate of a deceased, her client. People seeking her advice and services are in a vulnerable position and could easily be taken advantage of by the Appellant who had an appalling track record of doing just that when employed as a solicitor.

The Appellant’s statement (A70 to 77) also reflected her frustration at being allowed to present her application for registration even though she had convictions and had disclosed them.

We note that she was a practising solicitor. We were surprised that she was unable to appreciate that those convictions did impinge severely upon her fitness to the extent whereby she should have realised that her application was almost doomed to fail. It seemed to us that the Respondent operated completely fairly in looking carefully at the convictions because they were not an absolute bar as under the Immigration Act 1971 but that on the particular circumstances surrounding the convictions, she was absolutely right in refusing the application to register.

Whilst we have considerable sympathy with the Appellant’s position, the statute guides the Commissioner, and we have every confidence having heard this appeal that the Respondent faithfully applied the statute. It seemed to us that this application to register was premature in the extreme and that the Appellant will need to undergo a substantial period of rehabilitation before she can ever hope that she can convince the Commissioner, that she is a fit person to be registered as an immigration advisor.