Office of the Immigration Services Commissioner v Sam-Mwani Gambamba and African Legal Advisory Services

Section 83 (5) of the Act provides that the Commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services, inter alia, are fit and competent to do so and act in the best interests of their clients.

Those who provide immigration advice or immigration services for profit are required by Section 84 of the Act to be qualified to do so by registration.

Section 84 (4) of the Act enables the Commissioner to certify persons as exempt from that qualification.

Exemption is granted to suitable advisory organisations or service providers working in the not for profit sector.

In 2001 ALAS, a charitable organisation, applied to the Commissioner for such exemption, and on 24^th August 2001 the Commissioner notified ALAS that its application had been considered and approved, and that Mr Gambamba, who described himself as the chairman of ALAS, was authorised to give, at Categories 1 to 6 of Level 3, immigration advice and provide immigration services. The appropriate Certificate of Exemption was duly issued.

Paragraph 5 of Schedule 5 to the Act directs the Commissioner to establish a complaints scheme for the investigation by him of complaints made to him relating to the competence or fitness of a person to provide immigration advice or immigration services and to alleged breaches of the Commissioner’s Code of Standards and Rules.

As aforesaid, a complaint under that scheme was made by Katalayi Avoki against Mr Gambamba and ALAS.

In brief terms, the complaint was of incompetence, after the receipt of payment, on the part of Mr Gambamba and ALAS in respect of an immigration application to be made on behalf of Mr Avoki’s wife.

The Commissioner’s investigation of this complaint revealed evidence which suggested financial malpractice, and the investigation was widened beyond those matters complained of in the first instance to incorporate an investigation into the behaviour of ALAS, its management committee and Mr Gambamba, in respect of their use of the funds of the organisation.

The investigation culminated in the aforesaid Complaint Determination, and the laying of these charges against Mr Gambamba and ALAS.

The Tribunal sat to hear the Charges on 27^th and 28^th March 2007.

The Commissioner was represented by Jacob Hollam of Counsel.

Mr Gambamba represented himself, and ALAS.

The Tribunal received evidence, on behalf of the Commissioner, from Lee Christopher McGirr, an Official of the Home Office, whose written statement of evidence dated 4^th October 2006 was agreed by the parties.

The Tribunal heard evidence, on behalf of the Commissioner, from Katalayi Avoki, the Complainant, Elizbieta Hilgier, the wife of Mr Avoki, Laura Harrison, formerly employed as a Caseworker by the Commissioner, Eleanor Jolly, a Caseworker employed by the Commissioner, and Geoff Temme, a Legal Caseworker employed by the Commissioner.

The Tribunal heard evidence, on behalf of Mr Gambamba and ALAS, from Mr Gambamba.

The Tribunal heard an opening statement of the Commissioner’s case from Mr Hollam, and closing submissions from Mr Hollam and Mr Gambamba.

On 28^th March 2007, at the conclusion of the evidence and submissions, the Tribunal reserved its decision and adjourned the hearing to a date to be fixed.

On 13^th April 2007 the Tribunal, by letter of that date, informed the parties of its decision to uphold the Charges, and fixed the 11^th May 2007 for the adjourned hearing, for the purpose of consideration of the direction which it will be appropriate for the Tribunal to make under Section 89 of the Act.

Prior to the hearing, the Tribunal reminded itself that, in these Charge proceedings, the burden of proving the facts on which she relies rests on the Commissioner, and that proof shall be on a balance of probabilities.

The Charges against Mr Gambamba and ALAS were laid in identical terms.

Each of the Notices of Charge sets out, at paragraph 3.2, seven elements of the Charge.

In the Notice of Charge directed against Mr Gambamba, the first element concerned Mr Gambamba’s alleged actions as Chairman of the ALAS management committee in authorising use of the charity’s funds to service a personal debt and his use of those funds to service a personal debt.

The second element concerned Mr Gambamba’s alleged actions as Chairman of the ALAS management committee in failing to put in place terms for the repayment of the funds and being unable to show that he did repay the funds.

The third element concerned Mr Gambamba’s alleged actions in charging a client a fee for immigration advice and services.

The fourth element concerned Mr Gambamba’s alleged actions in combining the refund of a professional fee with a private debt.

The fifth element concerned Mr Gambamba’s alleged actions in writing out and signing two cheques when there were insufficient funds in the ALAS account to pay them.

The sixth element concerned Mr Gambamba’s alleged actions in taking instructions where there existed a potential conflict of interest with the client.

The seventh element concerned Mr Gambamba’s alleged actions in failing to carry out the client’s instructions and failing to inform the client of that failure.

The Notice of Charge directed against ALAS mirrored that directed against Mr Gambamba, and set out again the aforesaid seven elements.

The Tribunal finds that the evidence clearly demonstrated that, in the context of these charges, Mr Gambamba, as Chairman of the ALAS Management Committee and as ALAS’s sole immigration adviser, and ALAS itself were one and the same “person”, that all of Mr Gambamba’s material actions were performed on behalf of ALAS, and that so far as the material actions of ALAS were concerned, those actions were effectively those of Mr Gambamba.

The material evidence is set out in the witness statements of Lee McGirr, Katalayi Avoki, Elizbieta Hilgier, Laura Harrison, Eleanor Jolly and Geoff Temme, and in the written statement of evidence provided to the Tribunal at the hearing by Mr Gambamba (which the Tribunal directs be added to the “Hearing Bundle”), and in the documents provided to the Tribunal by the Commissioner and by Mr Gambamba and ALAS, set out at pages 84 to 340 of the “Hearing Bundle”.

The evidence thus appearing comprehensively in written form, the Tribunal considers it unnecessary to rehearse the evidence here. The Tribunal has of course also had careful regard to the cross-examination of the witnesses for the Commissioner by Mr Gambamba, and to the cross-examination of Mr Gambamba by Mr Hollam, and to the concise submissions of Mr Hollam and Mr Gambamba.

The evidence concerned the material dealings between Mr Gambamba and ALAS, on the one hand, and Katalaya Avoki and Elizbieta Hilgier, on the other hand, commencing in October 2004, and comprised also evidence concerning associated financial dealings of ALAS, its management committee and Mr Gambamba.

The Tribunal finds that each of the aforesaid elements of the Charges against Mr Gambamba and ALAS has been established by the evidence.

In respect of the first element, the Tribunal finds that Mr Gambamba owed a personal debt to Mr Avoki, and, with the authority of the Management Committee of ALAS, used monies, which had been given to ALAS as a grant by the organisation Comic Relief to be used for charitable purposes only, to repay part of that personal debt.

In respect of the second element, the Tribunal finds that the Management Committee of ALAS did not put in place any repayment programme or agreement in respect of the aforesaid charitable funds, and that Mr Gambamba has been unable to establish that he did repay to ALAS any of the monies used by him to repay (in part) Mr Avoki.

In respect of the third element, the Tribunal finds that Mr Gambamba did charge Mr Avoki a fee for the representation of Mr Avoki’s wife, in respect of her immigration application, by him and ALAS, in clear contravention of the terms of the exempt status of ALAS.

In respect of the fourth element, the Tribunal finds, and indeed Mr Gambamba accepted, that he had combined the refund of the professional fee charged to Mr Avoki with the repayment of the personal debt owed to Mr Avoki.

In respect of the fifth element, the Tribunal finds that Mr Gambamba did write out and sign cheques 34 and 35 when, to his knowledge, there were insufficient funds in the material ALAS account to honour those cheques when presented.

In respect of the sixth element, the Tribunal finds that Mr Gambamba did accept instructions from Mr Avoki in respect of his wife’s immigration application in the knowledge that he owed a substantial personal debt to Mr Avoki, and that accordingly there existed a clear potential conflict of interest between him and his client.

In respect of the seventh element, the Tribunal finds that, in failing to submit Mrs Avoki’s (Elizbieta Hilgier) immigration application and in failing to inform Mrs Avoki that the application had not been submitted, Mr Gambamba and ALAS failed wholly in that instance to provide an acceptable standard of immigration service and advice.

Where it does not otherwise appear clear, the Tribunal finds that the failings demonstrated by the establishment of the aforesaid seven elements of the Charges are those both of Mr Gambamba and of ALAS, of which Mr Gambamba was the Chairman of the Management Committee and the sole immigration adviser.

For the sake of completion, the Tribunal finds that the conclusions of the Commissioner set out in Section 3, Part A, 1,2,3, 4 and 6, and in Part B, 1 and 2, of the Complaint Determination of 3^rd November 2006 were fully justified by the evidence, and that the evidence establishes breaches by Mr Gambamba and ALAS of Codes 9, 29, 30, 32, 37, 42, 49 and 50 of the Commissioner’s Code of Standards.

Accordingly, the Tribunal upholds each of these disciplinary charges laid by the Commissioner against Mr Gambamba and ALAS.

As stated at 27 above, on 13^th April 2007 the Tribunal, by letter of that date, informed the parties of its decision to uphold the charges, and fixed the 11^th May 2007 for the adjourned hearing, for the purpose of consideration of the direction which it will be appropriate for the Tribunal to make under Section 89 of the Act (“the Direction”). The Tribunal expressed its desire to be fully informed as to the history of Mr Gambamba and ALAS as providers of immigration advice and services.

On 11^th May 2007 the Tribunal sat, and received an application, sent by fax by ALAS on 10^th May 2007, for an adjournment of that hearing, on the ground of the illness of Mr Gambamba.

Having heard submissions from Mr Hollam on behalf of the Commissioner, and from a representative of ALAS who attended the hearing, the Tribunal further adjourned the hearing, and by letter of 14^th May 2007 directed that the parties forward to the Tribunal their submissions in writing in respect of the Direction.

On foot of that direction, written submissions were received from ALAS under cover of letters of 22^nd and 29^th May 2007, and from the Commissioner under cover of a letter of 29^th May 2007, the Commissioner having previously furnished the Tribunal with a folder containing documents material to the history of ALAS and Mr Gambamba as providers of immigration advice and services.

The Tribunal was subsequently informed by the Commissioner that in respect of two complaints made against ALAS, references C2668 and C2272, each of which had been determined by the Commissioner by the withdrawal of the exempt status (under Section 84 (4) of the Act) of ALAS, ALAS has duly appealed against those withdrawals of exemption. Accordingly, the Tribunal has expressly not taken into consideration those complaints, as part of the history of ALAS and Mr Gambamba as providers of immigration advice and services.

The Tribunal has carefully considered the written submissions of the parties and all associated and relevant materials provided by them.

The Tribunal accepts the submission of the Commissioner that the facts which gave rise to these charges against Mr Gambamba and ALAS, which have been upheld, demonstrate conduct which fell far below the standards required of competent providers of immigration advice and services.

The Tribunal considers that, cumulatively, the seven elements of these charges constitute conduct which is gravely reprehensible.

Whilst not all of the elements are of equal weight, nevertheless the two essential constituents of the charges, the grave mismanagement of funds provided to ALAS to be used for charitable purposes only, and the absolute failure to deal properly with the immigration application of Elizbieta Hilgier, constitute failures to meet the appropriate standards of the utmost gravity.

In considering the relevant history of Mr Gambamba and ALAS as providers of immigration advice and services, the Tribunal, whilst as stated aforesaid not taking into consideration the determinations of those two complaints, C2668 and C2272, which are under appeal, nevertheless has noted that, in respect of five complaints against ALAS, C2407, C2442, C2630, C2646 and C2767, the Commissioner has made determinations which reflect numerous breaches of the Code of Standards, matters of incompetence and matters of financial mismanagement on the part of ALAS. In this context, so far as ALAS and Mr Gambamba are concerned, the Tribunal reminds itself of the finding set out in paragraph 39 above, and has given due consideration also to the material submissions of ALAS under cover of the letter to the Tribunal of 29^th May 2007.

Accordingly, considering the gravity of these charges which have been upheld, and taking into account the relevant history of Mr Gambamba and ALAS as providers of immigration advice and services, the Tribunal directs, under Section 89 (8) (c) of the Immigration and Asylum Act 1999, that Mr Samba-Mwani Gambamba and African Legal Advisory Services are to be prohibited from providing immigration advice or immigration services indefinitely.

This being the final direction, it is unnecessary to deal with the application for an interim prohibition pursuant to paragraph 9 (3) of Schedule 5 of the Act and Rule 15 of the Immigration Services Tribunal Rules 2000.