Davish Enterprise Developments Centre Ltd v Office of the Immigration Services Commissioner

This is an appeal under Section 87(2) of the. Immigration and Asylum Act 1999 ("the Act") against the Respondent's Determination made on the 25th February 2004 ("the February Determination") that the Appellant, having breached paragraphs 35, 49, 50(a), 55 and 58 of the Respondent's Code of Standards ("the Codes"), is not competent tp provide services at level 3 in accordance with the exemption granted the

Appellant by the Respondent.

In October 2004 the Tribunal sat to hear the appeal, but had to adjourn because a number of matters arose that required to be considered by the Tribunal and which invited responses from both parties. These matters were contained in an Interim Ruling ("the October Ruling"), a copy of which is annexed, its contents being incorporated as part of the factual background to this Decision.

Responses were received from both parties, but the salient one is from the Respondent to which the Tribunal responded by a further Ruling (''the second Ruling"), a copy of which is annexed, its contents forming part of the background to this Decision. We will refer to points made in these two Rulings during the course of this Decision on the appeal.

It is accepted by the parties that the Tribunal, in the exercise of its powers, can make a decision either to allow the Appellant's appeal, thereby allowing him to offer advice and services at level 3, or to withdraw his exemption in its entirety. There is no legislative provision under which we can allow the Appellant to practice at level 2 or level 1 should we find him not competent at level 3. During the process of this appeal the Appellant has been allowed to continue to operate at level 1. We can find no legislative basis for this approach.

The Respondent carried out 2 investigations into the Appellant's business. The first was conducted by Ms Melanie Lanerolle, which culminated in what is referred to in

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the October Ruling (and hereafter) as 'the November Determination'.. In reaching her conclusions as to whether or not there had been breaches on the files which she had examined, she was assisted by Mr Michael Hanley.

In parallel with the investigation being carried out by Ms Lanerolle, Ms Amy Cooper carried out an investigation into 2 files, those of Mr Paul Malcolm and Mr Andre Douglas. In finalising her views as to the alleged breaches she was assisted by Mr Mick Chatwin.

In the October Ruling and the second Ruling we raised concerns as to any interaction between the 2 investigations that may have given rise to a duplication in the decision, namely whether Ms Lanerolle and/or Mr Hanley would have taken into account in the November Determination the alleged breaches being investigated by Ms Cooper. We have considered this point carefully and, having listened to the evidence and the

explanations given to us as to the procedures carried out, we are entirely satisfied that neither considered any aspect of Ms Cooper's investigation, and that in determining the breaches they set out in the November Determination, their decision was made wholly on the files that they investigated and no others.

We find it unfortunate to say the least that two separate determinations are made where there are parallel investigations of the same firm by 2 separate investigators. It is perfectly reasonable they should work together, but give one determination. This case evidences the dangers that can arise not least through perceptions that one investigation becomes entangled in another; particularly where the 2 investigators come to diametrically opposed decisions. We would suggest that where parallel complaints are received, there should be one investigation (if necessary with more than one investigator) but that one determination is made on the overall findings of those investigations. We stress that these are the personal views of the members of this Tribunal.

Having listened to the evidence of Ms Cooper and Mr Chatwin we also record that we

are entirely satisfied that the determination of the breaches comprised in the February Determination was based entirely on the files of Mr Malcolm and Mr Douglas. There is no evidence whatsoever that Mr Chatwin had sight of any file or information

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relating to the matters comprised in the November Determination. Whilst Ms Cooper

did have sight of the November Determination before handing down the February

Determination, we are satisfied that she took it into account purely for the purposes of

the sanction she decided to apply, but not in her approach to determining whether

there were breaches of the Codes arising from the two files of Malcolm and Douglas.

November Determination or the February Determination. Indeed it flies entirely in the face of logic for any such conspiracy to have arisen around the November Determination where, despite extensive breaches alleged by the Respondent, no

sanction was employed. In addition

. Mr Chatwin had not been involved in the investigation of files being undertaken by Ms Lanerolle and Mr Hanley - indeed he was not instructed in any role until long after the November Determination was made. He could therefore never have been part of any such conspiracy at the time of the November Determination.

. We are also satisfied that Mr Hanley played no further part in the investigation of the affairs of the Appellant after the end of October 2003, and that therefore would not have been a party to any alleged conspiracy surrounding the February Determination.

.

We are satisfied that Ms Lanerolle no longer took part in the affairs of the Appellant after she had handed down the November Determination; and

.

There is no evidence whatsoever to show, let alone substantiate, any conspiracy between Ms Cooper and Mr Chatwin, or Ms Cooper and Ms Lanerolle in relation to the February Determination.

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In the same vein as our determination of the absence of any conspiracy, we wish to make it clear that, having listened carefully to both Mr Hanley and to Mr Chatwin, the allegations impugning their integrity have no basis whatsoever. Both gave their services objectively and independently, and gave their evidence in a straightforward, honest and proper manner. We find any allegation to the contrary to be unfortunate at

best.

Having set out the background and our general determinations we turn now to the specifics of the February Determination against which this Appeal has been made.

THE FEBRUARY DETERMINATION

.

First; it was the responsibility of the Appellant to make available all papers in relation to the Ma1colm and the Douglas files. Any failure to do so lay entirely in his court, and Mr Chatwin could only deal with those papers that were made available to the Respondent. We will return in a moment to the fact that documents alleged to exist to evidence steps taken by the Appellant in relation to both files were absent. We are satisfied that any additional documents did not come into the possession of the Respondent until some time after the date of the February Determination.

.

Secondly, Mr Chatwin's evidence referred to gross deficiencies in the documents that he did have, documents generated by the Appellant comprising correspondence written on behalf of both of his clients, and submissions made by him.

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We have considered the evidence of Ms Cooper and Mr Chatwin. In general terms we are

satisfied that the representations made by the Appellant in both files reflected a

scattergun and unfocused approach on behalf of his clients, with references being liberally made to legal grounds that had no basis whatsoever in respect of the relevant applications, and an absence of infonnation to sustain any possible grounds outwith legislation, such as those based on compassion or discretion. The reasons given by the

Appellant during the course of the hearing oftime pressures and problems with getting instructions simply did not stand examination, and if anything raised concerns on the

part of the Tribunal as to the timeous nature of the steps taken by the Respondent in dealing with the affairs of both of these gentlemen.

Any consideration of the Appellant's performance and competency has been

hampered in relation to both clients by a lack of records. Having listened to the

Appellant's explanations for their absence we are satisfied that whatever few records

that have been produced were delivered well after the February Detennination(see

above). We also have grave concerns as to their provenance, concerns informed by changing versions given by the Appellant when he was questioned by the Tribunal,

both as to their availability and when they became available. One moment they came

from the person to whom the files had been handed over, and on another occasion it

was claimed they could have been spare copies in the office where 2 copies were made instead of one. We have to record our surprise that, given the importance of this investigation and the consequences to the Appellant, even at this late stage he is unaware of where the few pages he did produce came from.

We accept that there can be problems with record retention in some cases, but these must be highly exceptional. It is of some concern to the Tribunal that in both the cases

being investigated by Ms Cooper the reason given of demands from clients to hand

them over was the same. The concern is not improved by the emergence at the

hearing of allegations of personal threats being made in respect of both cases,

allegations that had never previously seen the light of day in any representations made

by the Appellant in respect of either or both cases.

We are entirely persuaded by the overall evidence that there was a lack of record keeping by the Appellant in respect of both of these files. There is a duty to keep

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records. During questions asked by the Tribunal, the Appellant accepted that such

records form a fundamental part of the supervisory requirements that form part of the oversight by the Respondent of those giving advice in this field in order to protect

such people.

Our findings therefore in relation to the allegations of breaches are as follows:

In both files there was a considerable deficit in the competency and understanding of the Appellant, sufficient to sustain the findings of breaches as

determined by the Respondent.

out in the February Determination, and agree that the Appellant was in breach of

the Codes as set out therein. For the sake of clarity we confinn as follows:

.

We are satisfied as to the competency and independence of Mr Chatwin

and that his role (evidenced by his input to the re-draft of the February Detennination letter on the 14th January 2003) was limited to addressing the breaches and in no way informed the decision to withdraw the

exemptions.

.

While reference was made in paragraph 6 of Mr Chatwin's Statement of Evidence to other aspects of the business of the Appellant, and whilst there

are no grounds for implying any wrong doing whatsoever in respect of

those other aspects of business, we are satisfied that his judgement as to the breaches was in no way compromised by those concerns.

The above deals primarily with the breaches of the Codes set out in the February Determination, Mr Chatwin's input to that Determination, and our views on his

findings supplementing those of Ms Cooper. We turn now to steps taken by Ms Cooper in tenns of the investigation itself and any perceived deficiencies.

7

".

We have asked ourselves whether further steps could have been taken by her in

visiting the offices in the same way as Ms Lanerolle had visited the offices with

Mr Hanley. We are satisfied that nothing would have been achieved by taking that step; Ms Lanerolle and Mr Hanley had a much more extensive task over and above the investigation of one file (Ms Williams), having expanded that enquiry to a more general review of files. Ms Cooper's was a discreet, focused enquiry into two files, and given the paper trail as we now have it (or don't have it due to its paucity) we see no requirement for such a visit. In passing we also record that we reject entirely the allegations of the Appellant that when Ms Lanerolle and Mr Hanley were in his offices, the files in respect of Mr Malcolm and Mr Douglas were available for them to look at. We have also checked Mr Hanley's notes to see whether they could bear the interpretation placed on them by the Appellant as evidence that he did see them, but fmd that to be totally unfounded and based on a misreading of the note.

The question then arises as to whether any further step should have been taken by Ms Cooper regarding the February complaints. This is one of the matters that were raised in the October and second Rulings. On consideration of Mr Chatwin's advices the only steps she could have taken would have been to afford the Appellant time to address the detailed complaints. However it was clear even in the months after February that further documentation was not going to be forthcoming for some time, if at all. We are therefore satisfied that all opportunity had been given to the Appellant to consider and respond to any concerns on the part of Ms Cooper relating to the files of Malcolm and Douglas.

Even if one were to concede, which the Tribunal does not, that a further step might have been taken after Mr Chatwin's advice, the availability of this appeal has allowed the Appellant sufficient remedy for what might at best have been a purely academic exercise.

Therefore for all of the above reasons, on a ITeestanding basis the breaches arising ITom the February Determination are proved. As to the remedy we come to that at a later point.

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THE NOVEMBER DETERMINATION

The Tribunal are satisfied that at the time of the visit to his offices by Mr Hanley and

Ms Lanerolle that the Appellant had full prior knowledge of (a) the complaint of

Ms Williams and (b) the request for a review of files which would involve the

attendance of Mr Hanley. The general objective, namely to consider his competency

at Level 3, would have been known to the Appellant. He was asked to produce files to

assist both Ms Lanerolle and Mr Hanley to ascertain if he reached that objective. If

there was any failure to produce files to substantiate that claim of competency, that

failure lay entirely at his door.

We are satisfied that the employment ofMr Hanley was a proper and reasonable step

taken by the Respondent. We have commented on his integrity and his standing in the

early part of this Decision. We are satisfied that the review carried out by him was

conducted in a fair manner and that the notes taken by him at the time (copies of

which were produced to the Tribunal and the Appellant) show the time taken and the

issues raised which gave rise to concerns.

A short 10-minute "test" was undertaken by Mr HanIey with the Appellant. One has

to say this was an extremely modest test addressing what one would have regarded as fundamental and basic areas of knowledge. While some leeway is always to be given

for the stress that any “test’’ may produce, the fact remains there were far too many

errors of a fundamental nature that could not be explained by the presence of any such stress. The Appellant argued that Mr Hanley did not accurately record the answers he

gave. We reject that allegation.

Therefore up to that point (that is up to and during the attendance at the Appellant's offices) the process of review and its objectives were fair and just, and afforded the Appellant every opportunity to answer all questions raised in respect of the Williams

file and also every opportunity was given to substantiate his claim to competency to

give advice and services at Level 3.

Stopping at that point the result of this exercise at the Appellant's office undoubtedly gave rise to a large number of questions for the Appellant to answer. In the October

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Ruling we indicated our concern that at this point in Ms Lanerolle's investigation a

further opportunity should have been given to the Appellant to address what were new

concerns. Apart from the Williams file, no opportunity was given to address the

produced to the Tribunal and the Appellant.

We reiterate that concern, and we suggest that where any new issue arises which is

going to form the basis of a Determination, any party should be given every

opportunity to consider the issues raised and to make representations before any Determination is made. Again these are the personal views of the members of this Tribunal. Even where there is a right of appeal, such a step would be fair and

reasonable. In the event, in this case there was no immediate adverse affect on the Appellant by that failure of process. Ms Lanerolle decided that, notwithstanding the chapter of alleged breaches found by her, she would not withdraw the exemption at

Level 3. The problem arises where the Commissioner has it in mind to revisit those

fIndings in order to support any penalty arising from further fmdings in other cases at a later date.

Having considered the position following the October and second Rulings, we have afforded the appellant the right to address the breaches alleged in the November Determination. During the course of this hearing evidence was called and papers

produced and cross-examination took place. We were satisfIed, subject to one point, that this corrected the earlier defIciencies in the process.

The one point to which we refer in the previous paragraph is whether the Appellant

was prejudiced by the passage of time. However, having listened carefully to the

Appellant both giving his evidence and his cross-examination of Ms Lanerolle and

Mr Hanley, we are satisfIed that he had complete recollection of all of the matters with which the Tribunal was dealing in relation to the November Determination. We are satisfIed that the passage of time has not in any way weakened his rights to address

and have these alleged breaches considered by the Tribunal.

Mr Hanley's evidence was attacked by the Appellant on the basis that the outcome of

some of the cases he investigated turned out to be different (better) than Mr Hanley

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"

expected. However even the Appellant accepted that in one of these cases the result had been a "miracle". The fact remains however that this assertion as to results does

not address the substantive concern that breaches could and may have given rise to

results less favourable to a client than could otherwise have been achieved by reason

of a lack of competency on the part of the Appellant. A beneficial result in one or two cases would be to introduce a lottery system. On the other hand the obligation of the Respondent is to ensure general competency at the appropriate level of services and

advice given, to ensure that all clients receive advice to that particular standard.

We have considered all of the evidence in relation to the alleged breaches set out in the November Determination, including the evidence of Ms Lanerolle and Mr Hanley.

We confirm our view on the integrity and independence. of Mr Hanley and found his evidence, supported by that of Ms Lanerolle, to be persuasive. Each alleged breach has been carefully considered by the members of the Tribunal and we determine that the Appellant breached each ofthe Codes as set out in the November Determination.

THE SANCTION

Having confirmed that we are satisfied thatthere has been a chapter of breaches of the Codes in respect of both investigations, we have reached the point of considering the question of the sanction to be imposed.

We have first looked at the question of the sanction that could be imposed in relation

to the breaches of the Codes arising from the files ofMr Malcolm and Mr Douglas. In

this approach we take no account of the issues addressed in the November

Determination. We fmd that these breaches confirm that the Appellant is not

competent to provide services and/or to give advice at level 3. The breaches are too profound and too fundamental to come to any other decision. Without more, and

without recourse to the breaches set out in the November Determination, our

determination would be to withdraw the exemption granted to the Appellant to provide services to level 3.

In the October and second Rulings we referred to the absence in the second version of the November Determination of a reference in the first version to the fact that the

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breaches would be kept on the file to be used in the future. This gave rise to a concern

on the part of the Tribunal that there may have been a legitimate expectation on the

part of the Appellant that they would play no part in any future Determination of any exemption being granted or withdrawn. This matter was revisited by the Tribunal at

the Hearing and we have carefully considered the position. We are satisfied that the

change :trom the fIfst version of the November Determination arose :trom a inistake on

the part of the Respondent in dealing with the Appellant as being 'registered' as

opposed to being accorded an 'exempt' status. That mistake found its voice in two

respects - first by reference to the ongoing role of the Determination as to alleged breaches, and secondly to the granting of the right of appeal. The second version

corrected the position as to the Appellant's status and removed both of these aspects

from the letter. In doing so we do not believe that it was ever the intention of

the Respondent to ignore the November findings, nor that they would have no further role. We are satisfied that no legitimate expectation should have arisen on the part of the Appellant that that would not be the case.

We make this latter comment on the basis that logic dictates that in the proper circumstances there should be "a role for past transgressions in the determination of a sanction to be applied where further transgressions are found to have existed. We

accept the argument that there is such a role. This will clearly depend on the facts of

each case, and it would be wrong to set down hard and fast criteria by which that task

should be approached. However without it being binding we would suggest the following criteria would be amongst those to be considered.

The period of time that has elapsed between the two findings of breaches:

The level and nature of the previous breaches, including their potential impact on the interests of clients:

The level and nature of later breaches and their potential impact on the clients:

and

Changes that may have been made by an Appellant between the time of the

earlier determination and the later determination.

We believe that it was fair and reasonable for Ms Cooper to take into account the nature and extent of the breaches determined in the November Determination. We are

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satisfied that she allowed that Determination to play no role in the determination of the February breaches, but that given the level of and nature of the breaches on both, occasions and the proximity in time to the previous Determination, it was perfectly

legitimate for her to place weight on the November Determination before deciding on 'the sanction to be taken following the February Determination. There is no inconsistency between her decision and that of Ms Lanerolle. However, it does lead us to remind the Respondent of the concerns we expressed earlier where there is more than one determination made in respect of a firm arising from parallel investigations.

In all of the circumstances therefore there is no further matter, such as a legitimate expectation to the contrary, which would lead us to change our determination based

solely on the breaches of the Codes arising from the Malcolm and Douglas files, that

level 3 exemption should be withdrawn.

In all of those circumstances there is no requirement for us as a Tribunal to rely on the November Determination in terms of the sanction. However we believe for the sake

of completeness that we should record as follows:

That we could have taken it into account using the criteria set out above:

That the potential for the role of the November Determination would have

been material and carried considerable weight given the range of those

breaches:

If as a Tribunal we had been addressing the sanction to be applied based only

on the breaches contained in the November Determination, we would not have interfered with a decision to withdraw exemptions based on those breaches alone.

CONCLUSION

The Appellant came over to the Tribunal as someone who has undoubtedly the interests of his clients at heart, and who has a desire to help those caught in the maelstrom surrounding their status as immigrants into this Country, on whatever basis. In his closing submission he said that he "did his best". We have no reason to challenge that assertion. However that is not the criterion. The criterion as he himself

13

accepted is that such people, in such vulnerable situations, require to have advice from competent advisers with the ability to give advice at the appropriate level determined by the problem that that particular person is facing. Anything less than competency would be a failure to help the very people the Appellant himself wishes to help.

It remains a fundamental part of the above objective that the Respondent is, in a position to monitor and assess on an ongoing basis that those giving that advice are competent to do so. That requires the Respondent to be able to review files, check the steps that had been taken and that those files should be in an orderly and complete form. The Appellant raised the question of pieces of paper being put on file and clipped on the file. We accept his proposition that for non-profit making organisations there may be a lack of resources in providing a 'Rolls Royce' service of attendance sheets and time sheets etc. However, in accepting that proposition we in no way seek to compromise the underlying thrust of the Codes, which is that proper records are kept in whatever form and are available for inspection. The Appellant has certainly not convinced us that he did so - indeed the Respondent has convinced us in the cases ofthe Douglas and Malcolm files that the evidence pointed to a lack of records.

On both bases the Appellant, notwithstanding his motives and his efforts, has failed to maintain the levels of competency and organisation inherent in the giving of advices and services at level 3.

At the outset of this Ruling we indicated the restraints on our powers. It is not open to us to follow the route sought to be followed by the Respondent in affording the Appellant the right to continue at level 1 by not enforcing the withdrawal of the exemption at that level. That has given rise to difficulties as to the legal steps that can be taken in the interim before the hearing of an appeal. We are sure that that will be addressed in the future by the Respondent. Suffice to say however, that notwithstanding the findings of the Respondent in the November Determination and the February Determination, the Appellant was regarded as being competent to give services and advices at level 1. The Tribunal cannot make such an order, nor of course is it aware of any intervening evidence as regards the continuing services being given by the Appellant at level!. We can only record that if the starting point for the Respondent was to afford the Appellant the right to give those services and advices at

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"

level 1, then, subject to any other matter unknown tothe Tribunal, we would hope that a, new exemption could be granted and that, in line with the evidence of both Ms

Lanrolle and Ms Douglas, the Appel1ant would be given support in the hope that perhaps at some stage he can attain levels of exemptions that now are closed to him.

We therefore determine that, for the reasons that we have set out, the exemptions granted to the appellant be withdrawn.

15

The October Ruling

DEDC v. The Office ofthe Immigration Service Commissioner

Case Ref: IMS/2004/002/RCD

This appeal arises from a Decision of the Commissioner dated 25th February 2004 ("the

February Determination"). In it the Commissioner determined that the appellant had been in

breach of Codes 35, 49, 50(a), 55 and 58 of the Code of Standards. In paragraphs 3.1/3.5 of

the February Determination (included at pages 117/124 of the respondent's bundle), the bases

for these breaches are set out. The complaint involved two specific files in respect of a

Mr Malcolm and a Mr Douglas. However in the conclusion on page 9 of the February Determination (page 124 of the respondent's bundle) the decision is stated to be based not just

on the determination of the complaint in respect of these two files, but also on a decision in

respect of "Complaint C987 dated 13 November 2003".

We will refer to this latter

determination in respect of Complaint C987 as "the November Determination".

At page 10 of the February Determination, the decision of the Commissioner was to revoke

the appellant's exemptions at Level 3 but allowing him to continue at Level 1. Level 2 was

not mentioned, but by implication it would appear also to have been revoked. This was confirmed by a letter from the Commissioner dated the 9th March 2004, and confirmed further

in the Ruling of David Bean Esq. Q.C. dated the 17th July 2004.

Before turning to the background of this appeal and the way forward, we record that on the

first of the two days set aside for this appeal, problems were encountered which required the

matter to be adjourned, with the Tribunal giving certain Directions.

The Tribunal raised

concerns over the role in this appeal of the November Determination. This is referred to in

detail below. In addition a number of documents with regard to the November Determination

were made available to the appellant for the first time on the 11 th October 2004 when they

1

. appeared in the respondent's bundle. The appellant disputed any role for the November

Determination in the. February Determination, and in any case claimed that he had been given insufficient time to consider these documents and respond to any issues raised by them.

As a result the Tribunal sought further information and documentation to which the

Commissioner has now made representation, and given background in a narrative form. He

has also provided documentation in response to our request, and we are satisfied that this

complies with our Directions. We will refer to some ofthe representations later.

The purpose of this document is to reflect what we see as the present position in respect of the

appeal, and to give further Directions as to the process by which the Tribunal intends to

progress it.

F ACTUAL BACKGROUND

As can be seen there were two investigations carried out in relation to the appellant.

Investigation 1.

The first investigation, culminating in the November Determination, was initiated by the

Commissioner after receiving information from the Home Office in April 2003. This related,

at least initially, to a case for a Ms Williams. We asked for details about this complaint. The

response of the Commissioner has been helpful in clarifying the nature and chronology of the

two investigations and their interaction - an interaction on which the Commissioner relies for

the purposes of this appeal.

The first investigation was under the control of Ms Melanie Lanerolle. However, during the

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-

course of this investigation the Commissioner decided to take additional steps to "verify the

competence and fitness of DE DC to practice at Level 3" - see paragraph 3.1.8. of the

November Determination. On the 19th September 2003 Mr Michael Hanley, an external

expert, was asked to assist both in the consideration of the complaint concerning Ms

Williams, and in the review process. The exercise involved taking a number of random files

covering advices given at Levels land 2, and sample files provided by the appellant

concerning Level 3 advice. This appears to have been undertaken at the appellant's premises on the 24th October 2003. Mr Hanley submitted his report on the 29th October 2003.

At pages 2-18 of the November Determination (pages 132-148 of the respondent's bundle)

there is set out in detail the grounds under which the Commissioner determined that the

appellant was in breach of Codes 32, 50(a), 55,57 and 58 of the Commissioner's Codes of

Standards. At page 19 of the November Determination he also refers to a "misinterpretation

of Code 35" - a Code dealing with the keeping of records - and reminded the appellant of the

obligation under that Code.

However, as to his findings in relation to the breaches, the Commissioner at page 19 of the

November Determination (page 149 of the respondent's bundle) recorded as follows:

"The Commissioner has taken into consideration the responses that have been

provided by DEDC when determining this complaint. However, the Commissioner is

concerned about the instances of incompetence revealed throughout the course of the

Williams Investigation. This subsequently led to the Commissioner investigating the

premises of DEDC, with a view to identifying and quantifying the number of cases

undertaken by DEDC at Level 3 as well as assessing the quality of the advice given.

3

The Commissioner has therefore determined that DEDC provided insufficient

evidence to demonstrate their competence to carry out Level 3 advice."

Having made these determinations of competence at Levels 1/3 as they arose in the files

considered, the sanction to be applied, if any, was expressed in the November Determination

in these terms - see page 19 (page 149 of the bundle).

"With due consideration to the facts of this case, the Commissioner does not propose

to make further enquiries in this matter and his investigation is therefore closed."

We will refer below to the status of the statement that 'the investigation is closed' given that

we now know that Ms Lanerolle had become involved at that time in the second investigation,

and that clearly was ongoing.

. This Determination as to sanction is expanded upon to some extent by Ms Lanerolle in her

witness statement at paragraph 25 (page 243 of the respondent's bundle) when she states:

"The conclusion on the evidence before the Commissioner was that Mr Aroniyo

Owohunwa had provided insufficient evidence to support the conclusion that he was

competent to practice at Level 3. I gave careful consideration to withdrawing his

extension at Level 3. Whilst I consider that such a course would have been perfectly

justified on the evidence I felt, on this occasion, that I would not take the serious step

of withdrawing his certification."

4

An error was made by OISC in the form of the November Determination when it was first sent to the appellant, and it was reissued in amended form. We asked for, and have now received, a copy of that original November Determination, and note that it initially stated that

the Determination would be recorded and considered when DEDC next applied

for registration to be continued; and

the appellant had a right of appeal.

. However, on the 18th November, the Commissioner served the amended Determination which

is the one contained in the respondent's bundle. It set out in the same terms the earlier form

of the Determination except on the last page where it advised the appellant that he did not

have a right of appeal.

This latter advice is the correct position under the legislation.

However, the amended form is also different in that it omitted any reference to the findings of

the Determination being recorded and considered when DEDC next applied for its registration

to be continued.

This is because - as we were told at the hearing - exempted organisations

do not have to reapply for exemption.

Therefore the factual position in late November 2003 in relation to the first investigation was

that the appellant was found to be in breach of a series of codes, but had no right to appeal

that Determination. He was not advised as to any role for those determinations. Indeed the

omission after its inclusion in the first form of the Determination could be argued to mean that

there was a representation that it would not play that role.

From the papers contained in the respondent's bundle it was noted by the Tribunal that Mr

Hanley's report on the general investigation, as well as that of Ms WiIIiams, was dated 29

5

October 2003. We have now had disclosed to us an earlier letter or report dated the 29th

September 2003 that was not in the bundle, evidencing the on-going role and advices of Mr

Hanley in the first investigation. The October letter is extensively quoted in the November

Determination, but was never itself disclosed to the appellant before the November

Determination was made. Nor was the September letter. He therefore had no input at that

stage to the November Determination. We are not aware of any other documentary evidence

or opportunity given to the appellant to challenge the basis of the November Determination

before it was made.

We consider this position to be unsatisfactory. Given the absence of an appeal procedure,

anyone in the position of the appellant should as a matter of fairness be afforded the

opportunity to comment on any evidence or opinion, particularly from an outside source, that

informs the Commissioner's decision - and particularly so when.it plays a substantial part in

that decision-making process.

As far as the Tribunal itself is concerned the only documents in relation to the general review

covered by the November Determination are the letter of 29 October, the November

Determination itself and, now, the September letter. In the event Ms Lanerolle and Mr

Hanley have filed witness statements dated 27 July 2004 and 13 July 2004, respectively.

Neither of these, nor the letter of 29 October, was served on the appellant until 11 October

2004, one week before the date fixed for the hearing. The Commissioner, through Mr Wait

BL, seeks to rely on the November Determination to support the February Determination

either fully or to the extent it deals with the complaint which led to that investigation - this

notwithstanding that:

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Apart ITom the brief statement in the conclusion to the February

Detennination, which we have quoted above, there is absolutely no other

reference to any of the files referred to in the November Detennination nor to

the complaint concerning Ms Williams;

The November Determination does not refer to Codes 49 and 57 - which are

included in the February Determination;

The February Determination does not refer to Codes 32, 50(£) or 57 which are

referred to in the November Determination;

Whereas in the February Determination the appellant is alleged to have

breached Code 35, the November Determination refers to the appellant having

"misinterpreted the Code"; and

November Determination to any future role for the findings would argue for its

exclusion.

We will return later to the right of the Commissioner to rely on the November Determination,

and if so to what extent.

Investigation 2.

The February Determination was in respect of complaints by the Home Office in respect of

Mr. Ma1colm and Mr. Douglas, and was received in May 2003, one month after the complaint

giving rise to the first Investigation. This was conducted by Ms A Cooper. The Tribunal'

asked for full details of dates of these complaints and the complainants since, apart trom one

document, there is nothing on the papers in the respondent's bundle to confirm these facts.

The one piece of paper is dated 23 May 2003 and is at page 197 of the respondent's bundle.

7

This documentation has been provided and, as with the documentation provided in respect of

the first Investigation, has assisted the Tribunal. The documentation now in our possession

discloses that:

.

The first letter regarding this complaint was sent to the appellant on 20

October 2003, 5 months after the complaint and well into the first

investigation. It contained a summary of the complaint and asked a number of

questions, including a request that a copy of the case files should be sent to the

Commissioner.

.

The appellant replied on 7 November 2003 and with his reply submitted a

number of documents, but not the entire files.

.

On 8 January 2004 the appellant was advised that, arising from his response,

he may have breached Code 35 ('the retention of documents') and a reply to

this specific point was requested by 16 January 2004.

.

The appellant replied to this point on 14 January 2004.

.

The February Determination was made without further communication or consultation before it was issued on the 24th February 2004.

out. The reason for this is given in Ms Cooper's witness statement at page 14

(page 229 of the bundle) when she says:

"On 16 November 2003, my colleague Melanie Lanerolle substantiated

a complaint against DEDC that had almost identical issues. She has

already visited Mr Aroniyo-Owohunwa with an expert to assess his

competence at Level 3.

I decided that Ms Lanerolle and the

8

.

immigration expert, Michael Hanley who has accompanied her, had

already investigated the issue of his competence at Level 3 and found

him not to be wholly competent at Level 3. Therefore I decided it was

not necessary to visit Mr Aroniyo-Owohunwa and to ask similar

questions.

I believe the response of Mr Aroniyo-Owohunaw has

submitted to the SOC, Ms Laneroll' s investigation and expert report

and the original representations to the Home Office were evidence

enough for me not to have to visit the organisation again."

It was therefore clear at some stage Ms Cooper was fully aware, not just of the

November Determination but the letter from Mr Hanley dated 29 October, and

that she relied heavily upon it, including its decision (not the subject of appeal)

that it had found the appellant "not to be wholly competent at a Level 3".

We were satisfied from the documentation we had at the hearing that the November

Determination and its investigation process played a very significant role in the February

Determination whereby Ms Cooper decided the lack of competency of the appellant. We also

believed that the November Determination and the investigation leading to it played a

significant role in her decision as to the sanction to apply - a sanction completely different to

that determined by Ms Lanerolle.

When we asked what role the first investigation and the

November Determination played in her decision now under appeal, we were informed that Ms

Cooper was considering that question.

INFORMATION REGARDING CONTACT BETWEEN THE TWO INVESTIGATIONS

9

We found it incomprehensible how the two investigations could have proceeded in total

ignorance of each other. We believed that the existence of one would have been known to the

other. . We therefore asked for details of contact between the two investigations.

The

Commissioner in his reply has given details, to which we will shortly turn, but he has

challenged our right to ask these questions and has challenged the relevance they may have.

He says:

'[The Commissioner] is not aware of any precedent for an investigative body, in

circumstances comparable with this case (where the Tribunal is not being required to

investigate fraud or dishonesty), being required to disclose the content of discussions

amongst its staff and does not, with respect, understand how such communications can

be relevant to any issue the tribunal has to decide.'

In the circumstances of this case, where the appeal relates to 2 investigations and where the

Determination which is the subject of the appeal seeks to rely on the first Determination that

applied no sanction, we must respectfully disagree. On the papers now in our possession our

view of a close interaction between the two investigations is shown to be accurate. Ms

Cooper knew from the outset of the first investigation. She was aware of Mr Hanley's

involvement and the proposed visit to the appellant's office as part of the investigation of Ms

William's case and the general review. Indeed it goes far further than knowledge. The reply

from the Commissioner discloses that Ms Cooper asked that Mr Banley investigate the

complaints of Mr Malcolm and Mr Douglas. This is not mentioned in her Statement of

Evidence, or that of Mr Hanley, to the Tribunal. The papers show that Ms Lanerolle advised Mr Hanley of these complaints and in a fax dated the 23rd October 2003 Ms Lanerolle sent a

fax in the following terms:

10

Please look at the attached representations that have been made by Davish. This is a

new complaint that my colleague is currently investigating. My aim is to look at this

complaint tomorrow. You will note that these representations are similar to that of my

complaint, could you therefore make your comments in regard to the quality of the

reps and whether in your opinion this is consistent with competent level 3 advisors.'

The underlining is ours. It shows that Ms Lanerolle was, involving herself in the second

investigation, and was inviting Mr Hanley to expand the first investigation to cover the

second. Quite clearly at this point the two investigations became interwoven both in terms of

the investigation process and the judgement as to competence of advice - that is, whether

there had been breaches of the Code of Standards and the general question of competence.

In his reply the Commissioner then goes on to say the following:

'In the event, Mr Hanley did not respond to that communication at all and it is Ms

Lanerolle's understanding that he did not, in the event, take it into account when

carrying out his investigation in to the first complaint. Ms Cooper did not read Ms

Lanerolle's determination until after she completed her investigation'.

The Statements of Evidence of Ms Lanerolle and Mr Hanley make no comment on the steps

they took to address the second complaints. Ms Lanerolle specifically refers to her aim to

look at these complaints. The reply from the Commissioner not does say anything as to what

she, Ms Lanerolle, did or did not do - it refers only to Mr Hanley. And as regards Mr Hanley,

we are advised as to what Ms Lanerolle 'understands' to be his position.

There is no

comment directly attributed to him. Nor is there any comment on. what transpired between

11

Ms Cooper and Ms Lanerolle after she came back from that investigation. W e would believe

the most natural next step would have been forMs Lanerolle to advise Ms Cooper as to the

results of the enquiries she had asked her to make, and the views of Mr Hanley that she had

sought. Contrary to this position, the reply seems to suggest that there was no follow up; no

communication whatsoever; no reply to the questions Ms Cooper had raised.

Ms Lanerolle makes no mention at any time of her involvement in the second investigation, or

that of Mr Hanley. If that was in her mind, and Mr Hanley had a role in advising on it before

she made her November Determination, the question could be asked if their conclusions

formed part at the very least of the general review, and in the November Determination as to

the sanction to be applied. Did she put that part of her investigation out of her mind? Did Mr

Hanley? The reply we have received from the Commissioner is less than decisive when it

states:

'It is Ms Lanerolle's understanding that he did not, in the event, take it into account

when carrying out his investigation in to the first complaint'

In his reply the Commissioner also states that Ms Cooper did not read the November

Determination until she had completed her investigation. No date is put on that event, but on

the papers that could only have been after the 14th January 2004 - the date of the appellant's response to her letter of the 8th January 2004. That would mean that despite Ms Cooper's

request and. the intended steps of Ms Lanerolle as evidenced in her fax, neither spoke to each

other again about either investigation (despite working in close proximity) and that Ms

Cooper did not read the November Determination until mid January 2004 - some three

months after her request.

12

We referred earlier to the relevance of any connection between the two investigations. The

basic concern we have, quite apart from establishing the nature of the investigations and the general fairness' of the process, is a concern to ensure that the appellant is not exposed to

'double jeopardy'; particularly in relation to a sanction where one investigator determines no

sanction, and another using the findings of the first investigation imposes the sanction of

withdrawing the exemptions - a sanction that Ms Lanerolle herself describes as 'a serious

step'. Another example of this concern is the claim of breaches of Code 35. Ms LaneroIle

found that there has been no breach. but that there has been a misinterpretation. This was in

respect of keeping files for six years over a number of files that were investigated and an

investigation of the office generally. Ms Cooper in respect of two files found there was a

breach for not keeping files for the six years and added that to bases for her Determination of

sanction.

The investigation of Ms Lanerolle was considerably more extensive, particularly as it related

to the general competence of the appellant to give advice at Level 3. This was a discrete

exercise over and above the investigation into Ms WiIIiams's case. It employed the services

of an expert who visited the offices of the appellant with the express purpose of investigating

the appellants "competence and fitness to practice at Level 3". While a view could no doubt

be taken on an individual file or a couple of files to determine competence and fitness in those

particular cases, it is somewhat different in terms of affording grounds to determine general

competence over a wide range of issues involved in the giving of immigration advice. Ms

Lanerolle had the results of an investigation not only of the specific file but also files that

formed part of the general overview conducted by Mr Hanley. She reached her conclusion

(without submission from the appellant) that she was not satisfied as to his competence but

13

nevertheless decided' not to vary the appellant's exemptions. If there was any role in the

November Determination of the facts of the second investigation, then there may be legal issues to be addressed. We refer to these below.

What we do require are Statements to be filed by the three witnesses in respect of all aspects

we have referred to in relation to their respective parts and contacts with regard to the

investigation into the complaints of Malcolm and Douglas.

LEGAL CONSIDERATIONS

Having dealt with the factual background and issues arising from the investigations we now

turn to some legal issues that appear to require to be addressed.

Can the Commissioner rely on the November Determination at all?

We believe there is some common ground that a Determination properly

investigated and which affords someone in the position of the appellant a proper

input prior to the Determination, can have some role in the adjudication in later

complaints. However where that process was flawed, was deficient in the lead up

to the actual Determination - so that its very efficacy is in question - then where

does that Determination stand?

The suggestion is that we now carry out a process to determine the factual basis of

those complaints as part of the process of appeal against the February

Determination, which started from the point of dealing with different files

altogether. But a number of considerations arise.

14

Were there breaches?

If this has to be determined by the Tribunal,

Determination;

November Determination (nearly one year ago) but taking into account that the files,

the subject of the general enquiry, related to matters which arose two, three and four

years ago?

seek a right of reply?

process is exhausted; and (2) there would be no appeal. Given that the object is to

determine the relevance and role of the factual basis of the complaints and general

review undertaken and culminating in the November Determination, it would appear

that it would be the Tribunal who would be asked to make that decision.

Court in circumstances where there is no appeal. Would that be legally sustainable?

alleged breaches in the November Determination (as the February Determination in

it's conclusion seems to suggest in its limited comment on it) or only on some, and if

so, which?

The sanction

15

Here the question would arise as to what role the decision of the Commissioner in the

November Determination would play, that determination deciding that the revocation of the exemptions on grounds 2 and 3 was not warranted. That decision was taken

When the evidence against the appellant was taken at its height - namely without any

further representations being made available to him. Would the appellant have a

legitimate expectation that the allegations in the November Determination would not

be used against him in respect of an ongoing investigation by Ms Cooper, when the

reference to its future role was removed and where the two investigations became

intertwined?

These questions have given rise to considerable concerns on the part of this Tribunal. .

INTERIM: CONCLUSIONS

The appellant now finds himself effectively being asked to re-open an investigation he was

told was closed, and by omission in the renewed Determination of the fact the investigation

would have any role, would not result in any action being taken. There is no new evidence in

respect of those cases investigated by the process that culminated in the November

Determination. The additional evidence is that which was in the Commissioner's Office

before that Determination in November was made and of which Ms Lanerolle was aware. We

believe that this gives rise to six questions.

In relation to the November Determination

16

Can the appellant now properly prepare and present arguments in

relation to the matters contained in the November Determination? A

year has passed since that Determination; 21 months from the original

complaint; and several years from the date of the events giving rise to

the files in respect of which the complaints were made. Would it be

possible to expect the appellant to be able properly to address all the

issues and chronology set out in Mr Ranley's report of September 2003

about these matters?

Is it fair to allow this process to be re-opened, given the Determination

as to the sanction made. Is this contrary to a legitimate expectation on

the part of the appellant that it was "water under the bridge"?

Even if it were not to be regarded as ''water under the bridge" as far as

the future was concerned, would it have been regarded as legitimate,

given the process, for it then to be used as a substantial and significant

part of the decision of Ms Cooper when addressing the matters raised

on her two files?

Should the above three considerations combined lead the Tribunal to the

conclusion that its. systems were being abused by allowing the

November Determination to form part of its determination of the

February Determination.

If the two investigations became entwined and formed part, consciously

17

or subconsciously, in the decision making process for the November

Determination, have the complaints regarding Malcolm and Douglas

been determined certainly as regards the sanction to be imposed?

giving rise to the November Determination was flawed, and should be

excluded, was its influence on Ms Cooper's decision both as regards her

Determination and competency and on the sanction, such as to render her

Determination so flawed as to require the Tribunal to strike it down on that

basis alone.

The Tribunal believe the way forward is to allow the parties to make representations on the

questions and legal issues we have raised. Prior however to that we would require the

additional statements of Ms Cooper, Ms Lanerolle and Mr Hanley with regard to the steps

taken and contacts, if any, made arising from Ms Cooper's request and Ms Lanerolle's fax.

We therefore direct that these statements be filed and served within 14 days of receipt of this

Ruling, and that representations on the above points be filed and served within 14 days of

receipt of those Statements. The Tribunal will then give further Directions.

18

THE SECOND RULING

DEDC LTD V OISC

Case No.2004/002/RCD

The Tribunal has considered the additional witness statements requested by the Tribunal after

the last hearing, and also the submissions made by both parties to the Tribunal's Note dated 2

December 2004, which raised a number ofissues.

Before turning to the specifics of the case and the way forward, a general point requires to be

made.

In its submission the Respondent has made reference to the fact that the appellant

may not have raised certain issues raised by the Tribunal, with the implication that the

Tribunal should not consider such matters. This is to ignore the fact that the Tribunal is a

"public authority" for the purposes of the Human Rights legislation. There is therefore a

positive responsibility on the Tribunal to address pro actively all matters required to ensure a

fair hearing for any party who appears before it. For any issue to be considered it does not

require to be predicated by the fact that a party raises or doesn't raise it.

Turning to the issues that have been raised and the submissions, we record as follows:

by the Tribunal in the next paragraphs, there will be a further hearing and the

parameters of that hearing and its structure will be set out below.

most particularly the involvement of the November Determination in the decision

making process of the February Determination (and vice-versa), and set out in detail

its concerns - not conclusions.

The absence of a representation from a party is

1

relevant 'to any decision as to whether or not he or she feels that their position has been

prejudiced. The Tribunal notes that, apart from a general comment in terms of "the

passage of time", the appellant has at no pointin his submission particularised any fact

orissue to lead the Tribunal to conclude that there should be a stay of the proceedings

on the grounds of abuse of process, based on delay under Article 6 of the Convention.

Rather the Appellant has chosen to denigrate a range of people, many of who are not

party to these proceedings, in highly personal terms. Therefore, subject to the terms of

the final paragraph of point 4 below (see page 5), the Tribunal has decided to hear the

evidence relating the matters dealt with by the November Determination, and which

form part of the February Determination.

referred to above, and therefore he has not assisted the Tribunal in its determination on

the way forward of the hearing. Therefore comment from this point on in this Ruling

will address mainly the representations by the Respondent.

hearing and the Commissioner's response acknowledges that. In paragraph 5 it states

that he "submits that the previous determination was plainly relevant to the issue of

whether the Appellant was competent to act at level three and it would have been a

dereliction of duty on the part of Ms Cooper if she had failed to take that

determination into account in determining sanction". He further accepts in paragraph

6 that the issue raised by the Tribunal is one that has not confronted a Tribunal before,

namely the extent to which it is permissible for the Commissioner to take into account

a previous Determination in circumstances where there is no opportunity to appeal

2

against that Determination. This also has to be considered in the context of the powers

of the Commissioner set out in Schedule 5 of the 1999 Act which makes no provision

for the findings to lead to other than the steps therein set out, namely the right to

withdraw that person's exemption, or lay before the Tribunal a disciplinary charge.

As to the specific concerns he then articulates on this point we would reply as follows:

The merits of any appeal will depend on the evidence which a Tribunal has

It is open to the Tribunal to raise these issues in order to ensure fairness;

properly in front of it. The question raised by the Tribunal is directed at

determining what evidence it can take account - including

.

Whether it can take into account the allegations decided by November

Determination as grounds for the February Determination; and

.

Whether the November Determination addressed the allegations being

investigated by Ms Cooper.

conclusions" on the degree of interaction between the two investigations. That is

wrong. The submission by the Commissioner accepts there was an interaction.

That has been confirmed by the additional documents that were produced after the

last hearing, and which are referred to in the previous Note under reply by the

Commissioner. The additional witness statements also confirm an interaction, but

also address the point raised by the Tribunal as to what happened at, and after, the

visit by Ms Lanerolle and Mr Hanley to the Appellant's offices.

. Ms Lanerolle at paragraph 4 states that she could not recall any further

occasion when she discussed the DEDC complaint with Ms Cooper over

3

and above what she says was "to pass on the subject matter for complaint

to Mr Hanley for his comment".

. Ms Cooper on the other hand in paragraph 2 of her witness statement says

that Miss Lanerolle did speak to her after her visit to the office to inform

her (Ms Cooper) that she had not been able to find the case files she had

asked about.

. Mr Hanley confirms that he did not see any documentation or comment on

the matters being investigated by Ms Cooper, since the files were not in the

office.

Ms Cooper then says that she decided not to proceed further with Ms Lanerolle

or Mr Hanley since those files had not been found.

As to the interaction and the involvement by Ms Lanerolle in the cases being

investigated by Ms Cooper, one can only return to Miss Lanerolle's own fax of

the 23 October 2003 when she stated that it was her (Ms Lanerolle' s) intention

"to look at this complaint tomorrow". The Tribunal feels perfectly justified in

considering that there is at least an argument that at that stage Ms Lanerolle

had indeed undertaken to look into the specific complaints raised by Ms

Cooper as part of her investigation of the other complaints.

One of the concerns of the Tribunal was whether, in the light of that declared

intention, Ms Lanerolle took these allegations into account in making her

Determination in November. In paragraph 30 of the Respondent's submission

it states that there is simply no evidence that the February complaint had an

4

impact on the conclusions reached in the November Determination.

The

Tribunal has made no decision on this aspect of the case, but it will be a matter

to which the Tribunal will return at the hearing, not least

.

In the context of the changes made to wording of the November

Determination when in the first Notice of Determination reference was

made to the potential ongoing role for the conclusions reached by the

Commissioner, but in the second and final Notice no role was

mentioned.

.

The Commissioners powers under Schedule 5 of the 1999 Act.

In hearing this evidence the Tribunal is not tying its hands on these points.

cause problems to the Appellant in dealing with the allegations that form the basis of

the November Determination. As stated he has not raised that problem in response to

the specific questions raised in the Tribunal's Note. We are also confirmed in that

belief since (a) all of the documentation should be in his possession; and (b) it is clear

from the replies that have been received from time to time that he is fully aware of the

facts and issues involved in each of the files. However this will be kept under review.

background to, and the processes involved in, the November Determination. Having

heard that evidence the Tribunal will consider if any prejudice has been caused to the

appellant, and if so:

5

Whether it is a matter of weight; or

It is so fundamental as to give rise to an Article 6 consideration.

role is to determine the appeal based on the evidence placed before it. The suggestion

that one ignores the legal status of that evidence and its admissibility, or ignores the

procedures and the efficacy of the procedures, would be an extraordinary proposition

and would be plainly wrong. In paragraph 8 it is argued that the balancing factor in

favour of the public interest is that the public is not well served "from allowing a man

who is incompetent from continuing to represent asylum seekers in cases of profound

importance." This is to beg the very question that the appeal has to determine. The

President of the Tribunal in his Ruling was not required to make, nor did he make that

decision. Rather he had to consider the intermediate point as to whether, on the face

of the papers, to allow the Appellant to continue to give advice at the previous levels

pending the hearing of the appeal. It is equivalent to a remand in custody before the

trial of a person on a criminal charge. The Tribunal has not changed the position

determined by the President. The Appellant asked us to do so, but that application has

been refused, and matters will remain as is until the hearing of the appeal itself.

However we now have to hear the substance of the appeal based on admissible

evidence and any legal considerations such as have been articulated.

is required. We fix the 17th and 18th March 2005 for the hearing. In accordance with

Directions given by the President, the appellant will present his case first.

6