IMMIGRATION AND ASYLUM ACT 1999
THE IMMIGRATION SERVICES TRIBUNAL
APPEAL NO: IMS/2007/011/RCR
Between:
KWAKU BOATENG T/A RORAIMA ADVISORY SERVICES
Appellant
and
THE IMMIGRATION SERVICES COMMISSIONER
Respondent
Before:
Mr David Hunter QC
Mr Martin Hoare
Dr Susan Rowlands
Sitting at:
Procession House, 55 Ludgate Hill, London EC4M 7JW
Hearing Dates:
8 November 2007
21 December 2007
Sent to Parties:
22 January 2008
DECISION AND REASONS (RULE 24)
THE APPEAL
1. This is an appeal by Roraima Advisory Services, in the person of Mr Kwaku Boateng, its Principal (“the Appellant”) against a decision of the Immigration Services Commissioner (“the Respondent”) to cancel the registration of the Appellant as a person qualified to provide immigration advice or immigration services.
2. By virtue of Section 84(1) of the Immigration and Asylum Act 1999 (“the Act”) no person may provide immigration advice or immigration services unless he is a qualified person. By virtue of Section 84(2) of the Act a person is a qualified person if he is registered with the Respondent.
3. The Respondent is directed by Section 83(5) of the Act to exercise her functions so as to secure, so far as reasonably practical, that those who provide immigration advice or immigration services are, inter alia, fit and competent to do so.
4. The Appellant has appealed, by Notice of Appeal dated 6th July 2007, against the decision of the Respondent, dated 15th June 2007, to refuse an application by the Appellant for continued registration and to cancel that registration. The Appellant had been registered in 2005-2006 at OISC Level 1 in all categories, and had applied, on 6th July 2006, for continued registration at that Level.
THE COURSE OF THE APPEAL
5. The Appellant’s Notice of Appeal comprised an application by the Appellant for suspension of the Respondent’s decision to be suspended pending the outcome of the Appeal.
6. On 14th July 2007 His Honour Judge Cripps refused to suspend the decision.
7. The Appeal was listed for hearing on 8th November 2007, which listing was communicated to the Appellant by letter of 16th August 2007.
8. By letter dated 5th November 2007, received by the Tribunal on 7th November 2007, the day before the listed Hearing, the Appellant applied for an adjournment of the hearing. That letter was accompanied by a medical certificate dated 31st October 2007, citing “Bus accident. Severe pain over the right elbow and back”.
9. The Respondent objected to the application for an adjournment.
10. By fax and e-mail dated 7th November 2007, the Tribunal refused the application for an adjournment, and indicated that the Appellant should make any further application in court.
11. The Tribunal sat on 8th November 2007. The Appellant did not appear, but had telephoned the office of the Tribunal at 9.25 on the morning of that day, and had said that he was unable to attend because his right hand was in plaster and he could not walk properly.
12. On further consideration of the application on 8th November 2007, the Tribunal granted an adjournment, and communicated its decision in that regard to the Appellant by letter dated 12th November 2007, which, whilst deploring the lateness of his application, informed the Appellant that the hearing had been adjourned to 21st December 2007.
13. The Tribunal’s letter of 12th November 2007 further notified the Appellant, he having not notified the Tribunal of the names of any witnesses whom he proposed to call, or sent to the Tribunal copies of any documents on which he proposed to rely, that he would require the leave of the Tribunal to call any witness or adduce any document in evidence, and that any application for such leave should be made in writing to the Tribunal within 14 days of the date of that said letter.
14. Subsequently, there were several communications and attempted communications, between the office of the Tribunal and the Appellant, the last of which was on 3rd December 2007, in the course of which it was clear that the Appellant was aware of the date of the adjourned hearing. No application, pursuant to the letter from the Tribunal of 12th November 2007, was received from the Appellant, nor were any documents ever received from him.
15. By letter of 17th December 2007, received by the Tribunal on 20th December 2007, the Appellant “prayed that the Tribunal adjourn the case once again until I am able to walk and able to use my right hand to take notes at the Tribunal …” That letter was accompanied by a medical certificate dated 4th December 2007, citing “RTA / elbow inflamed”, and by an X-ray of elbow request dated 4th November 2007, and by a letter dealing with arrangements for a medical examination in the context of a claim for compensation, dated 6th December 2007.
16. By telephone communication from the office of the Tribunal, the Appellant was informed that his application for an adjournment was refused, and told that the Tribunal would sit on the next day to determine the appeal.
THE HEARING
17. The Tribunal sat on 21st December 2007. The Appellant did not appear. The Respondent appeared, represented by Ms Amin, of Counsel.
18. Upon consideration of all the circumstances of the course of the appeal, and having heard the submission of Ms Amin that the appeal should be dismissed forthwith without more, the Tribunal decided, pursuant to Rule 20(2)(b) of the Immigration Services Tribunal Rules 2000 (“the Rules”), that the hearing of this appeal should be heard in the absence of the Appellant, he having been notified of the date of the hearing, but having failed, without reasonable excuse, to appear before the Tribunal.
19. The Tribunal took into particular account, in the context of the dates of knowledge of the Appellant of the dates of hearing, the extreme lateness of the first application for an adjournment, and what it regarded as the inexcusable lateness of the second application. It took into further account, in respect of the second application, the fact that the assertion of the Appellant, in his letter of 17th December 2007, that he was unable to walk, was not supported by medical evidence, and the certainty of the Tribunal that it could have accommodated the Appellant in respect of note-taking at the hearing.
20. The hearing proceeded accordingly. The Tribunal heard evidence from two employees of the Respondent, A and B, each a caseworker who had dealt with the Appellant’s application for continued registration. Having been sworn, each adopted as their evidence witness statements which had been made by them on 10th and 18th October 2007 respectively, and submitted to the Tribunal as two of those documents relied on by the Respondent, pursuant to Rule 18(1)(a) of the Rules. The Tribunal further took the totality of those documents into account, as evidence on behalf of the Respondent, and heard closing submissions on behalf of the Respondent by Ms Amin.
21. At the conclusion of the hearing, the members of the Tribunal retired to consider their determination. In doing so, the Tribunal reminded itself that in this appeal the burden of proving, on a balance of probabilities, the facts on which he relied rested upon the Appellant, by virtue of Rule 22(2) of the Rules.
THE CONCLUSIONS OF THE TRIBUNAL
22. The facts upon which the Respondent relies, in support of her decision to refuse the application for continued registration and to cancel the registration of the Appellant, are fully set out, principally in the Respondent’s letter of decision dated 15th June 2007, the Notice of Reply to the Appeal dated 7th August 2007, the Identified Issues Report dated 11th January 2007, and the aforesaid witness statements of A and B, and also in the remainder of the documents comprised in the Respondent’s Disclosure Bundle, delivered to the Tribunal on 20th August 2007, and sent by the Tribunal to the Respondent on that same date (the aforesaid witness statements were separately sent by the Tribunal to the Respondent on 18th October 2007) .
23. The Tribunal considers that all of the facts relied upon by the Respondent have at all material times been well known to the Appellant.
24. In his Notice of Appeal the Appellant gave as his grounds: “That the Commissioner erred in law as well as did not take many factors into account in refusing the Appellant’s continued registration under paragraph 3(1-2) and (5-6) of Schedule 6 of the Immigration and Asylum Act 1999 and that the decision should be reversed.”
25. In the event, in the absence of any evidence presented through witnesses or documents, or further submissions made, on behalf of the Appellant, these grounds constitute the only assertion or submission, of law or of fact, made by the Appellant in support of his appeal.
26. As the grounds of her decision, the Respondent has relied firstly on a number of breaches of the OISC Code of Standards and of the Commissioner’s Rules, numbers 8, 9, 16k, 29, 30, 31, 32, 33, 49 and 55 of the Code, and numbers 14, 28 and 29 of the Rules. These breaches are fully evidenced by the Identified Issues Report, the evidence of A and B, and the material documents comprised in the Disclosure Bundle.
27. Further, the Respondent relies on a wholesale failure by the Appellant to respond to the issues raised in the Identified Issues Report, which failure is detailed in paragraphs 13 to 17 of the Notice to Reply, and fully evidenced in the documents.
28. The Tribunal finds that these breaches were committed, and cumulatively constitute grave and compelling evidence of unfitness to provide immigration advice, which evidence has been compounded by the aforesaid failure to respond.
29. The Tribunal considers accordingly that the decision of the Respondent to refuse the application for continued registration and to cancel the registration of the Appellant was fully justified, and that the Appellant has failed wholly to fulfil the burden which rested upon him in respect of his appeal, which must accordingly fail.
DECISION
The decision of the Tribunal is to dismiss the appeal.
David Hunter QC
21 January 2008