Maxim Immigration and Advisory Service v Office of the Immigration Services Commissioner

1

IMMIGRATION AND ASYLUM ACT 1999

THE IMMIGRATION SERVICES TRIBUNAL

APPEAL NO: IMS/2009/4/RCR

Between

MAXIM IMMIGRATION AND ADVISORY SERVICE

Appellant

And

THE IMMIGRATION SERVICES COMMISSIONER

Respondent

DECISION AND REASONS (RULE 24)

THE APPEAL

1. This is an Appeal by Maxim Immigration And Advisory Service (“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 22^nd July 2009, against the decision of the Respondent, dated 26^th June 2009, to refuse an application by the Appellant for continued registration and to cancel that registration.

5. The Appellant’s Notice of Appeal comprised an application for suspension of the effect of the Respondent’s decision, pursuant to paragraph 8(2) of Schedule 7 of the Act, and Rule 10 of the Immigration Services Tribunal Rules 2000 (“the Rules”). That application for suspension was refused by a decision, on 3^rd August 2009, of His Honour Judge The Lord Parmoor.

BACKGROUND TO THE APPEAL

6. The Appellant was first registered in July 2004, with Mr Sohail Khawar as its sole adviser.

7. The Appellant’s application for continued registration, the refusal of which by the Respondent is the subject of this Appeal, was made on 11^th July 2008. The application was for registration of the Appellant with two advisers, Mr Khawar and Mr Muhammad Kashif, for the provision of immigration advice and services at Levels 2 and 3.

8. During the years between first registration and the subject application for continued registration the Appellant had a number of advisers, one of whom, a Mr Jeremy Driver, was on 30^th July 2008 criminally convicted for providing immigration advice and services without being registered. The Tribunal acknowledges that Mr Khawar was a witness for the prosecution during Mr Driver’s trial.

9. At all material times the Appellant and its advisers were registered as competent to provide immigration advice and services at Level 1 only, save for a short period of some three months in 2007 when the Appellant had one adviser, a Mr Afzal, registered as competent to provide advice and services at Levels 2 and 3. That adviser left the employment of the Appellant at the end of that period in 2007.

10. On the date of the material application for continued registration the Appellant had two advisers, Mr Khawar and Mr Muhammad Kashif, registered as competent to provide immigration advice and services at Level 1 only (the Respondent has divided immigration advice and services into three levels of activity, or competence, depending on the complexity of the work involved, ascending from Level 1 to Level 3, and advisers are registered at one or more of these levels, depending on the degree of competence demonstrated by them.)

11. Pursuant to the material application for continued registration, Mr Khawar completed an OISC (the Respondent) Level 2 and 3 competence assessment, and Mr Kashif completed an OISC Level 2 competence assessment. The results of each assessment were assessed by an external expert, a member of a panel of experts in the provision of immigration advice and services retained by the Respondent to provide independent advice and assessment. That external expert concluded that Mr Khawar was not competent to provide immigration advice or services at Levels 2 or 3, and that Mr Kashif was not competent to provide immigration advice or services at Level 2.

12. In the course of the Respondent’s consideration of previous applications of the Appellant for continued registration, the Respondent conducted audits of the Appellant in September 2006 and March 2008.

13. In the course of the first of these audits, in September 2006, a number of cases were identified in which the Appellant was providing advice and services beyond the level of its registered competence. An Identified Issues Report following that audit was sent to the Appellant in which the Appellant was directed, in clear terms, to “… immediately cease providing advice beyond their competence in the area of asylum.”

14. In the course of the second of these audits, in March 2008, three further cases were identified in which the Appellant had continued to provide advice and services beyond the level of its registered competence. Again, an Identified Issues Report pursuant to that audit was sent to the Appellant, in which it was clearly stated that “As an organisation currently registered at Level 1 … the Respondent … must not undertake any work above this level.”

15. Following the conviction of Mr Driver, Mr Khawar wrote to the Respondent stating, inter alia, “I strongly regret that this (Mr Driver’s unregistered advice and services, which were purportedly provided above Level 1) happened in my absence and I undertake that there will be no repetition of these events.” Mr Driver had resigned from the Appellant in September 2007.

16. Following the Appellant’s material application for continued registration, a further audit of the Appellant was conducted by the Respondent on 18^th September 2008. In the course of that audit, three further cases were identified in which the Appellant had continued to provide advice and services beyond the level of its registered competence.

THE HEARING

17. The Tribunal sat to hear the Appeal on 6^th October 2009.

18. The Appellant was represented by Mr Khawar.

19. The Respondent was represented by Mr Tom Cawcutt, of the Office of the Respondent.

20. By fax message received by the Tribunal on 5^th October 2009, the Appellant requested an adjournment of the Appeal, on the ground that the Appellant wished to have the opportunity to cross examine two witnesses, Ms Menon, a former caseworker for the Respondent, and Mr Shahzad, a person who had made a complaint against the Appellant. The Tribunal indicated to the Appellant that the Tribunal would sit the following day as arranged, and would hear further representations from the Appellant in this regard at the commencement of proceedings on that day. Having heard and considered those representations, made by Mr Khawar, the Tribunal refused to grant the adjournment in respect of Mr Shahzad, and reserved its decision in this regard in respect of Ms Menon, and directed that the Appeal proceed on that day.

21. Mr Khawar elected not to give evidence, nor did he call any witness. He made an opening and a closing submission to the Tribunal.

22. Ms Heather Wetzel gave evidence on behalf of the Respondent.

23. Mr Cawcutt made a closing submission to the Tribunal.

24. In addition to these submissions, and to the evidence of Ms Wetzel, the Tribunal has considered carefully all those documents submitted to the Tribunal by the Appellant and by the Respondent.

THE COURSE OF THE APPEAL AND THE EVIDENCE

25. As aforesaid, Mr Khawar elected not to give evidence. He did not therefore submit himself to cross-examination. The Tribunal gave the most careful consideration to his opening and closing submissions, and to the considerable number of factual assertions contained therein, but has borne also carefully in mind his failure to expose those assertions to challenge.

26. The relevant decision of the Respondent, on 26^th June 2009, was based on three areas of concern. Firstly, the continuance of the provision by the Appellant of immigration advice and services above and beyond its level of competency, that is above Level 1. Secondly, the use and display by the Appellant of a fee scale which had not been approved by the Respondent, and which featured fees for work at Levels 2 and 3. Thirdly, the nature, substance and determination of a complaint against the Appellant, Complaint C3790 determined by the Respondent on 16^th February 2009.

27. The letter of the Respondent of 26^th June 2009, which communicated to the Appellant that decision, sets out those facts, in respect of the material files, cases and fee scales of the Appellant, and of the nature and substance of the aforesaid complaint, and of the material actions and behaviour of the Appellant, which relate to those areas of concern upon which the Respondent relied, in coming to her conclusions upon which her refusal of continued registration was based.

28. The Tribunal distinguishes between the facts set out in that letter, and those opinions and conclusions of the Respondent, based upon those facts, also set out in that letter. The Tribunal has come to its own conclusions, as set out below, but insofar as the facts themselves are concerned, the Tribunal considers, on the basis of the totality of the material evidence, including the totality of the documents, that those facts have been established, and are recorded objectively and correctly in the letter of 26^th June 2009, and relies, in coming to its conclusions, upon those facts, as well, of course, as its consideration of all those other relevant matters contained in that evidence and those documents, and in the submissions of the Appellant and the Respondent.

29. At the close of the evidence, the Tribunal revisited the application of the Appellant to adjourn the hearing of the Appeal, an application, as set out above, based on the desire of Mr Khawar to cross-examine Ms Menon. The latter person was the Respondent’s caseworker assigned to the Appellant from July 2006 until she left the employment of the Respondent on 31^st January 2009. Ms Wetzel, who gave evidence, was Ms Menon’s Line Manager. The Tribunal established, at the close of Ms Wetzel’s evidence in chief and cross-examination, that she had at all material stages, both as Line Manager and as part of the Upward Review process, in respect of decisions as to applications for continued registration, checked and confirmed the accuracy of all those facts established and reported by Ms Menon in the course of her dealings with the Appellant. The Tribunal had some regard to the lateness of this application for an adjournment, but, more substantively, was clearly satisfied that all relevant and necessary material and evidence was before the Tribunal, for the purpose of enabling the Appellant, in the person of Mr Khawar, to deal fully with all of the relevant issues. The Tribunal accordingly refused the application for an adjournment.

RELEVANT MATTERS OF LAW AND STATUTE

30. The Tribunal reminds itself of Rule 22 (2) of the Rules, which provides that the Appellant in Appeal proceedings shall have the burden of proving the facts on which he relies.

31. Schedule 6 (3) (5) of the Act provides that: “If the Commissioner considers that an applicant for continued registration is no longer competent or is otherwise unfit to provide immigration advice or immigration services, she must cancel the applicant’s registration.”

32. Schedule 5 (3) (1) of the Act provides that: “the Commissioner must prepare and issue a code setting standards of conduct which those to whom the code applies are expected to meet.”

33. Schedule 5 (3) (4) of the Act provides that: “It is the duty of any person to whom the code applies to comply with its provisions in providing immigration advice or immigration services.”

34. As provided for by the aforesaid Schedule 5 (3) (1) of the Act, the material code is the Code of Standards, incorporated in that booklet known as “The Commissioners Rules and Code of Standards” (“the Code”) which came into effect on 2^nd July 2007.

35. Code 4 of the Code provides that: “All advisers must satisfy the Commissioner that they are fit and competent to provide immigration advice or immigration services and that they continue to do so.”

36. Code 6 of the Code provides that: “Advisers must not operate beyond the level of competence approved by the Commissioner or in categories that have not been approved. (The previous Code had laid down a similar requirement.)

THE CONCLUSIONS OF THE TRIBUNAL

37. In his submissions, Mr Khawar dealt in detail with his relationship with the aforesaid Mr Driver, and also with the nature of his, Mr Khawar’s, provision of advice and services beyond Level 1. He also sought to deal with the aforesaid complaint, Complaint C3790 made by Mr Shazhad, and to explain his actions in the course of his dealings material to that complaint, and to assert that the complaint had been unfairly investigated and determined. He asserted unfairness also in respect of the aforesaid OISC competence assessments, particularly in respect of the engagement of an external expert.

38. Notwithstanding the content of his submissions, which the Tribunal has carefully considered, The Tribunal concludes that Mr Khawar failed completely to refute any of those facts which established those grounds of concern relied upon by the Respondent in coming to her material decision. Manifestly he failed by reason of the absence of any evidence on behalf of the Appellant, save for its submitted documents. Those documents gave the Appellant no assistance in this regard.

39. In essence, the evidential burden to establish its competence and fitness rests upon the Appellant. The Appellant has failed wholly to discharge this burden.

40. In coming to its conclusions, the Tribunal has not placed reliance upon the improper actions and conviction of Mr Driver in themselves. The Tribunal has however noted that the fact of that conviction placed the Appellant, in the person of Mr Khawar, fully and firmly on notice of the wrongful nature of advice and services provided above the level of registered competency, notice which had already been given to the Appellant by the Identified Issues report of September 2006, and again by the Identified Issues report of March 2008.

41. The Tribunal found wholly unconvincing Mr Khawar’s submissions in respect of work provided above Level 1. The Tribunal has concluded that the findings of the audit of September 2008, taken together with the findings of the two previous audits, have established beyond doubt that the Appellant flagrantly provided, and continued to provide, advice and services above and beyond the level of its registered competence. In this regard, the Tribunal also finds relevant and disturbing the facts surrounding the use and display of fee scales which were not approved and which featured fees for work at Levels 2 and 3.

42. With regard to that competence, having heard the evidence and submissions of the Respondent, the Tribunal wholly rejects the assertion on behalf of the Appellant that any unfairness existed in respect of the competence assessments completed by Mr Khawar and Mr Kashif. Indeed, the Tribunal considers that the engagement of an external expert to analyse the results of these assessments demonstrates the impartiality of the Respondent in this regard.

43. With regard to the complaint, C3790 of Mr Shazhad, this Appeal cannot operate to provide a platform for the subject of the complaint, the Appellant, to question the validity of the determination of the complaint. The complaint was duly investigated, and a determination duly made. The Tribunal considers that it is no part of the function of the Tribunal to seek to go behind that determination. Further, the Tribunal notes that the investigation of the complaint disclosed breaches of Codes 9, 14, 16 and 42 of the Code, and disclosed also that work done by the Appellant in connection with the subject of the complaint constituted, yet again, advice and services provided by the Appellant above and beyond the level of its registered competency.

44. As with the findings of the audits of September 2006 and March 2008, the Tribunal considers that the Respondent is fully justified in having regard to the determination of the complaint, as part of the relevant history of the Appellant as an adviser.

45. The Tribunal concludes that it has been convincingly established that the Appellant engaged, on a continuous basis at all material times, in the provision of immigration advice and services at Levels 2 and 3, above and beyond the level, Level 1, of its registered competence, which provision constituted a clear, and in the opinion of the Tribunal flagrant, breach of Code 6, a breach also demonstrated by work done in connection with the aforesaid Complaint, the determination of which revealed also other substantive breaches of Codes 9, 14, 16 and 42. Further, the facts with regard to the fee scales established breaches of Rules 7 and 8 of the Commissioner’s Rules.

46. Accordingly, the Tribunal considers that the Respondent was fully entitled to conclude that the facts concerning those three matters of concern set out in her decision letter of 26^th June 2009 amply demonstrated that the Appellant was no longer competent or fit to provide immigration advice or immigration services, and that she was therefore bound to refuse the material application for continued registration.

DECISION