Bayo Adewusi T/a Crystal Advice Centre v OISC

Crystal Advice Centre is run by Mr Bayo Adewusi and provides immigration advice and services. As such, the centre has been registered by the Immigration Services Commissioner (ISC) since 2006. Mr Adewusi is the sole advisor at the centre. Some of the ISC and Tribunal documentation treats them as interchangeable. Nothing is to be gained in these proceedings by attributing different legal identities to them.

Mr Adewusi was originally registered to work at level one. In 2009 Mr Adewusi acted for a Mr Okafor and provided immigration services which went beyond level one. At this time he had applied for but not yet been given authority to work at level two. In September 2009 the ISC approved Mr Adewusi to work at levels one and two. Some six months later the ISC upheld a complaint from Mr Okafor and decided that Mr Adewusi had acted above his level of registration. On 20 April 2010 therefore the ISC notified Mr Adewusi that, whilst his registration was to continue, the finding of Mr Okafor’s complaint was regarded as a serious breach of her code of standards. He was warned that his registration took effect “only in the circumstances that no immigration advice or services is undertaken outside of the levels and categories in which” he was authorised. He was warned that immediate cancellation of his registration would follow if this condition was not observed.

The power to limit a registration is contained in Para 2(2) Schedule 6 Immigration and Asylum Act 1999 (the Act). By Section 84 of the Act it is unlawful, and by Section 91 of the Act, it is a criminal offence, for a person to provide immigration advice or services which go beyond the scope of their ISC registration.

In October 2010 an audit of the work at the advice centre disclosed two occasions when Mr Adewusi had lodged appeals on behalf of clients. A search of UKBA records revealed three more such cases. The ISC sought Mr Adewusi’s comments on these and on one other appeal in which a Mr Chimpango had apparently sought to present an appeal on behalf of Crystal Advice Centre. On 15 December 2011 the ISC refused an application by Mr Adewusi for continued registration of the Crystal Advice Centre and there is now before the Tribunal an appeal against that decision.

The question before us whether Mr Adewusi is “no longer competent or is otherwise unfit to provide immigration advice or immigration services”. If we so find then the registration must be cancelled. Otherwise the registration must continue either in full or with limitations. See Paras 3(5) and 3(6) of Schedule 6 to the Act.

By the close of the hearing of this appeal counsel for the ISC abandoned any assertion that Mr Adewusi was incompetent. In our judgement that concession was rightly made having regard to the quality of Mr Adewusi’s written work in the Tribunal documents which we have seen. The question therefore becomes whether Mr Adewusi was otherwise unfit.

It is convenient first to deal with the involvement of Mr Chimpango. Mr Adewusi told us, and we accept, that he received a telephone call from a Mr Kalonga who lived in Edinburgh. He had heard of Mr Adewusi’s work by word of mouth and wanted help with an asylum appeal. Mr Adewusi recognised that this was outside his normal range of work but was able to help Mr Kalonga by arranging for Mr Chimpango to represent him pro bono. Mr Chimpango is a solicitor who had previously supervised Mr Adewusi at a local law centre. Mr Chimpango wrote to the UKBA office in Glasgow signing the letter as solicitor at the Crystal Advice Centre. There followed some uncertainty, which we need not resolve, as to whether Mr Chimpango, as an English solicitor, had a right of audience before the AIT sitting in Scotland and the case was eventually transferred to a Glasgow firm of solicitors.

Mr Chimpango, as a solicitor, is regulated not by the ISC but by the Solicitors Regulatory Authority (SRA). We see nothing wrong in the referral of Mr Kalonga’s case to Mr Chimpango.

Counsel for the ISC suggested that Mr Chimpango’s use of the Advice Centre’s name was declaring to the world that Crystal Advice Centre could provide the services of a solicitor. We do not ourselves read the document in that way. The situation was unusual. There would no doubt be difficulties about Mr Chimpango putting either his home or work address. In the circumstances it is understandable that he used the Crystal Advice Centre address. It is also understandable, in the light of Mr Adewusi’s ambitions to seek level three authorisation, that he should want to see how the case progressed.

Counsel also suggested that “instructing an advocate” to appear at a Tribunal hearing was level three work and that Mr Chimpango was such an advocate. We do not accept that Mr Adewusi “instructed” Mr Chimpango. The latter took on the case pro bono. As a practising solicitor, he was entitled to do so. In any event, the reference in the guidance to “barrister or advocate” is intended to encompass not solicitors, but the Scottish legal tradition. Compare page 8 of the 2008 Guidance, a document to which we will refer again shortly. It was also suggested that in allowing Mr Chimpango to sign letters on behalf of the advice centre Mr Adewusi was in breach of his duty in para 5 of the Code of Standards to notify ISC within ten days of “significant changes …. in personal or business circumstances”. We are unable to accept that passing Mr Kalonga on to Mr Chimpango for him to act pro bono comes within that duty to disclose.

In summary, there is nothing in the conduct of Mr Kalonga’s appeal in our judgment which suggests any unfitness on Mr Adewusi’s part.

We turn then to consider the other five cases in which Mr Adewusi took steps on behalf of clients in appeal proceedings.

In all these cases, it is contended that Mr Adewusi acted beyond his level two authority. As we have indicated (see para 3) to do so is a serious matter.

At the hearing, counsel for the ISC submitted that a level two advisor may lodge an appeal but only where a client seeks advice when a deadline is about to expire so that referral to a level three advisor is not possible. Hence the assertion in the decision letter (p24 para 6) that there could be no lodgement of an appeal in a case where a level two advisor had helped with the unsuccessful application. He went on to submit that any person is unfit to be registered if they repeatedly go beyond the terms of their registration. Mr Adewusi was already on specific notice (page 95) that he must not do this.

Mr Adewusi’s case, in summary, is that he does not normally provide an appeal service. He never represents anyone at appeal hearings because he knows that is level three work. However, he submits that where there are exceptional circumstances then a “subjective parameter” is allowed to level two advisors to permit them to lodge an appeal (page 45).

It is essential therefore for us to first consider the limits of level two advice work. These are contained in the ISC’s “Guidance on Competence”. The 2008 edition was current when the events with which we are concerned took place.

At page four of the guidance there is a summary of the extent of a level two authority. In respect of three areas of work it is said to include lodging “in exceptional circumstances” notices of appeal. In respect of one of those areas of work it is also said to include lodging “Statements of Additional Grounds”.

At page 8 of the guidance, describing the work permitted at level two appears the following:-

“ An advisor at this level can submit one stop notices and lodge appeals on initial grounds but must then refer the case to a higher level advisor”.

Somewhat confusingly the guidance goes on to state that the following additional work is permitted at level two:-

“ … lodging appeals (only in exceptional circumstances where immediate referral is not possible)”.

Amongst the knowledge required for level two is a detailed knowledge of immigration and nationality law “including grounds for lodging appeals including human rights grounds”.

At page 11 in the account of work permitted at level three there appears the following:-

“ Level three work is any work done pursuant to the lodging of a notice the notice of appeal against refusal.…”

Work permitted at level three is said to include “preparation of cases in the AIT including drafting full grounds of appeal” as well as “representing clients before the AIT”.

We were unable to accept the submission that a level two advisor could lodge a notice of appeal only if someone sought their advice when a deadline was about to expire. This is simply not what the guidance says. The opening paragraph on page 8 indicates that a level two advisor can lodge a notice of appeal. The same is implied by page 11. The qualification in respect of “exceptional circumstances where immediate referral is not possible” appears then in a series of bullet points. In our judgement, the guidance is unclear and could easily be read, as page 11 indicates, to the effect that level two work ends with the lodging of an appeal and appeal procedures after that are level three.

If on the other hand lodging an appeal is confined to “exceptional circumstances” then we agree with Mr Adewusi that this gives the advisor a discretion.

It is axiomatic that the discretion must be exercised in the client’s best interests.

The context means that the discretion must be exercised speedily. There are strict deadlines on appeals, ten business days, in the cases with which we are concerned.

Another important context is that the lodging of brief “holding” grounds of appeal is not always an option and may not be in the client’s best interests. This is illustrated by the appeal forms. See for example page 166:-

“ In this section you must set out all grounds for your appeal and give the reasons in support of these grounds – that is why you disagree with the decision. You must do this now because you may not be allowed to mention any further grounds at a later date.”

Finally, the speed with which a referral might be made is not the only factor to be considered. A referral may be pointless, for example if a client is unable to afford the fees of a level three advisor. It may be that a client could afford a referral but doesn’t want to spend the money on doing so and prefers to conduct any hearing him or herself. It is possible to envisage an open and shut case in which all the evidence has already been gathered and in which it would be against the client’s interests to incur more fees. Equally there may be cases doomed to failure where the same might apply. All these might lead to a level two advisor to conclude, in an appropriate case, that the circumstances are exceptional and (s)he should lodge the notice of appeal. It all depends on the facts.

We turn now to the five appeals to which the ISC has drawn our attention.

In respect of Mr Maharjan, Mr Adewusi told us, and we accept, that this was a simple straightforward case in which an ID card had not been attached to an application. No follow up work was needed. The judge allowed the appeal on the basis of the initial submission.

Mr Kasardi was a friend of Mr Maharjan and also a student. The difficulties he encountered in renewing his application for leave to remain are set out in the letter drafted by Mr Adewusi which forms his grounds of appeal (page 125). This appeal too was allowed on the papers. It is true that after the Tribunal had given its decision Mr Adewusi (page 115) wrote to the UKBA asking them to implement the decision. However, it was conceded at the hearing that the writing of such a letter in this and in other cases, was plainly level two work.

Mr Akimi was refused leave to remain in the UK as a student. Mr Adewusi completed an appeal form which argued, on Court of Appeal authority, that the refusal was unlawful (see page 151). That submission was accepted by the Tribunal (pages 139-140).

Mr Oladipo was a Nigerian student who was refused an application to extend his student permit. Mr Adewusi correctly advised him that he was unlikely to succeed on appeal and that the best course of action would be for him and his wife to submit a new application from her country of origin, Jamaica. Mr Oladipo insisted that he wanted to go ahead with an appeal and represent himself. Mr Adewusi therefore completed the appeal forms on his behalf and let him get on with it.

Mr Durogbitan was also a student. His application was rejected because of difficulties over funds and a photograph. Mr Durogbitan wanted to conduct his own case before the Tribunal. Accordingly Mr Adewusi drafted some grounds of appeal for him (page 201-204).

There is nothing to suggest that Mr Adewusi ever appeared as an advocate at a Tribunal hearing – which is clearly level three work. In one case in which he rightly felt there were no good grounds for appeal but where his client wanted to go on and appeal himself, Mr Adewusi submitted an appeal form containing the briefest of grounds. In the other cases he submitted well argued grounds of appeal. The appeals were then allowed on the papers or, in one case, after a hearing in which the client represented himself.

Having reviewed the evidence we were not prepared to accept that Mr Adewusi had acted in breach of his level two authorisation. As we have indicated, on one reading of the guidance, the lodging of a notice of appeal is within level two. Even restricting the lodging of an appeal to “exceptional circumstances” we were satisfied by Mr Adewusi’s oral evidence that he weighed all relevant circumstances carefully before deciding to assist a client by lodging the notice of appeal and that the exercise of his discretion was defensible. Once the appeal was lodged he made no attempt to enter level three territory.

For these reasons the appeal succeeds.

There is reference in the papers to the 2011 Guidance on Competence. This retains (page 22) the definition of level three work as “any work done pursuant to lodging of the notice of appeal ….”. At page 17 the new guidance states that a level two advisor can “lodge appeals on initial grounds but must then refer the case to a regulated level three advisor”. There is no reference to “exceptional circumstances”. In a written statement a member of the ISC staff, (page 5) states that both the 2008 and 2011 editions of the guidance “clearly stipulate that level two advisors are not permitted to undertake substantive appeals work including submitting representations to the Tribunal.”

As it turned out the 2011 guidance did not form part of our reasoning in this appeal but the Immigration Services Commissioner may wish to consider whether the new guidance is sufficiently clear. In particular, :-