Community and Immigration Rights Centre v Office of the Immigration Services Commissioner

Mr. Elias Dawood is a law graduate and an immigration adviser of about 12 years' standing. Since 1995 he has carried on business in Bristol under the style and title Community and Immigration Rights Centre ("CIRC"). This is an appeal by CIRC against a decision of the Immigration Services Commissioner contained in a letter of 27th March this year, determining a complaint by a young woman to whom I shall refer as "Ms. B".

CIRC has been represented before us by Mr. Trumpington, and the Commissioner by Miss Richards, and we are grateful to both of them for their submissions.

The Commissioner has regulatory functions under Schedule 5 to the Immigration and Asylum Act 1999. Paragraph 3 requires the Commissioner to prepare and issue a Code of Standards. Paragraph 5 requires him to establish a complaints scheme. By paragraph 5(3), a complaint is a relevant complaint if it relates to, among other things, (c) an alleged breach of the Code of Standards. Further provisions of that paragraph are as follows:

Mr. Dawood is a registered person, registered to give advice at all three levels of competencies. By section 87(3)(f) of the Act a decision of the Commissioner to record a determination of a complaint under Schedule 5, paragraph 9(1)(a), may be the subject of an appeal to this Tribunal by any person aggrieved, which plainly includes Mr. Dawood. This is such an appeal.

We should begin by setting out certain features of the complaints scheme and our jurisdiction on an appeal under section 87(3)(f) as we understand them. Indeed, we do not think that any of these points were disputed.

Firstly, a complaint may be made and may be notified to the adviser concerned in more than one document and more than one instalment.

Secondly, the gist of the complaint, that is the substance of the allegations made against the adviser, must be put to the adviser with an opportunity to make representations before the Commissioner reaches his determination. Again, that can be in stages. The fact that this is a mandatory requirement emerges clearly, in our view, from paragraph 6(1) of Schedule 5. We do not, however, consider that the allegation or complaint need be pleaded by the Commissioner with all the formality or particularity of an indictment so long as the adviser knows what is the nature of the charge which he has to meet.

Thirdly, if the Commissioner determines that a complaint is well founded and should be recorded and an appeal is made to this Tribunal under section 87(3)(f), our options are to dismiss the appeal or to allow it and quash the decision and the record of it. We cannot make findings of deficiencies which were not the subject of a determination by the Commissioner.

Fourthly, however, subject to the last point, it is common ground that we may form our own view of the merits. Evidence before us is not confined to evidence which was before the Commissioner, provided that it is directed to the subject matter of the complaints which the Commissioner found justified. Evidence before us may strengthen or weaken an appellant's case as put before the Commissioner. We are not, in other words, confined to public law grounds, and our reasons do not have to be identical to the Commissioner's reasons.

The Code of Standards issued by the Commissioner contains the following provisions, among others:

By letter of 7th August 2002, Annabelle Lim, on behalf of the Commissioner, wrote to Mr. Dawood enclosing a summary of the complaint, which Ms. B had made. It is at paragraph 42 of the bundle. It is not necessary in this judgment to recite it in detail. The first part, headed "Summary of the Complaint" recites five paragraphs of the Code - paragraphs 10, 11, 37, 49 and 50(b) (not 50(a)). We only observe for the record, although it is not significant in the outcome, that paragraph 37 is slightly misquoted. Paragraph 37, as we have already said, requires the adviser to act without delay, having regard to the urgency of the client's business and so forth. The next heading is "Background to the Complaint", and gives particulars of the complaint. The third part, headed "Information Required" asks a series of questions. It is accepted that those questions assume the correctness of the complaint and might have been more neutrally phrased. However, this was an early stage of the development of the complaint. Mr. Dawood responded, and there was further correspondence.

On 27th March the determination which is the subject of the appeal was made. The Commissioner found that CIRC had contravened paragraphs 37, 49 and 50(a) of the Code of Standards. He also found that CIRC had not contravened paragraphs 10, 11, 39 or 50(b). The letter added:

We heard evidence from Mr. Dawood on behalf of his firm. We also heard from the complainant Ms. B who gave evidence pursuant to a witness summons. Her foster carer, Ms. M, was called as a witness by the Commissioner, as were Ms. Janine Palmer, a support worker from East Bristol Youth Housing Association; Mr. Copus, the case worker in the OISC assigned to the file; and Mr. Randall, a solicitor with 10 years' experience as a partner in the well known firm of Winstanley-Burgess.

Ms. B is a Jamaican national, born in December 1982. She came to the United Kingdom in June 1999 at the age of 16½. She had been living with her grandfather in Jamaica. Her mother had been in the UK since 1990. In late September there was a family incident, the nature of which it does not fall to us to investigate. Police and social services were involved. It appears that on 1st October 1999 an attempt was made to send Ms. B back to Jamaica. She protested. She alleged that she had been abused by a member of her family. She was placed with Ms. M.

In October 1999 Ms. B, accompanied by Ms. M, consulted CIRC. The firm submitted an application to the Home Office on Ms. B's behalf for indefinite leave to remain, the application being accompanied by Ms. B's passport. The relevant form, SET(O), is at page 196 of our bundle. In Ms. B's complaint, at page 37 of our bundle, she alleges:

Ms. Palmer, in a letter of 17th October 2002, says that she was:

The witness statement of Ms. M of 11th July 2003 does not mention the 1999 meeting.

The papers before us include a photocopy or reproduction of a notice describing Mr. Dawood as being an LLB and a paralegal. It would not be open to us to uphold the complaint against Mr. Dawood of misrepresenting himself as a solicitor since the Commissioner, in our view quite rightly, found it not proved. We think he was correct to do so.

The letter, which is best described as a client care letter, to Ms. M of 27th October 1999, page 253, quotes a fixed fee of £300. It says that the CIRC deals exclusively with immigration and asylum matters, and makes no mention of the alleged qualification of Mr. Dawood as a solicitor.

Following the application to the Home Office seeking indefinite leave to remain, there was further correspondence with Ms. M and with the Home Office in late 1999 and early 2000.

On 12th April 2001 it appears that Miss B, by telephone, notified a new address and subsequently she moved again to a flat in another part of Bristol where she lived independently of Ms. M. Ms. M also moved in early 2001. She told us that she went to CIRC, told Mr. Dawood and he wrote it down.

On 4th March 2002, the Home Office notified the Secretary of State's refusal to grant Ms. B indefinite leave to remain. This was done in a letter to CIRC, returning Ms. B's passport. The letter was accompanied by a one stop notice, page 171 of the bundle. The letter is at page 214. Mr. Dawood, without attempting at that stage to contact Ms. B, lodged a notice of appeal, page 181 of the bundle, which gave as grounds the following:

On 9th April 2002 a meeting took place between Ms. B, accompanied by Ms. M and Ms. Palmer, and Mr. Dawood, at the offices of CIRC. Ms. B, in her complaint to the OISC, says this after referring to the events of 1999:

In her oral evidence Ms. B said that Mr. Dawood spoke to her at that meeting in a way which was at some points slow and patronising. She said she was made to feel small, and that Mr. Dawood scared her.

Ms. M's account of the meeting was contained in her witness statement and we will set out paragraph 3 of that statement. Ms. M says this:

Ms. Palmer made notes shortly after the meeting of 9th April, which were added to the Housing Association file relating to Ms. B. They run to several pages in typescript and we will not set them out at length. She alleges, in short, that Mr. Dawood shouted at Ms. B when she burst into tears, told her not to be so silly, said she should have known what to expect, and there was no point crying about it.

There is an attendance note at page 109 of this meeting by Mr. Dawood. It is not easy to read and he, in oral evidence, did not find it easy to read. However, his witness statement and evidence to us make it clear that his emphatic view is that the meeting was a calm one, nothing untoward occurred, and he did not behave towards his client or those accompanying her in any aggressive or disrespectful way. He apologised, he said in his witness statement, if Ms. B found him scary.

There is one contemporaneous document which should be noted. At page 245 Ms. B signed a statement confirming receipt of her Jamaican passport from the CIRC. The background to this is that Ms. M and Ms. Palmer and indeed Ms. B all allege that one purpose of Ms. B and Ms. M going to see Mr. Dawood was to recover Ms. B's passport which the Home Office had returned in their notification of 4th March. Ms. B and her witnesses says that Mr. Dawood was at first unwilling to return the passport and said that a typed receipt would have to be prepared and Ms. B would have to return on another occasion to obtain the passport. This standoff continued for perhaps some 15 minutes, at which point the complainants allege that Mr. Dawood grudgingly prepared the very short typed receipt at page 245: "I [it gives the name] can confirm receipt of my Jamaican passport from CIRC", and handed the passport over. They also complain that he was not prepared to hand over the whole file immediately, but plainly there were good reasons for that since some of the material on file would be material which the adviser would be entitled and indeed in some cases bound to retain.

Ms. Palmer's extensive notes relating to 9th April 2002 were disclosed with her witness statement. Other notes which the Housing Association had on file concerning Ms. B's case were not. Mr. Dawood attempted, unsuccessfully, shortly before the hearing to obtain their production. On the first day of the hearing, on 6th August this year, he renewed the application. We asked Ms. Palmer to ask those in her office in Bristol to produce them. They were faxed to the Treasury Solicitor overnight and made available to counsel on the second day of the hearing. The request to see them turned out to be justified, in our view, because they included this entry on 10th June 2002 in Ms. Palmer's handwriting:

Mr. Trumpington for the appellant argues that that entry indicates that Ms. Palmer, at any rate, was suggesting that the more that an allegation of bad advice was made against Mr. Dawood, the more that might assist Ms. B's immigration appeal. We think there is some force in that suggestion in principle, although, since Ms. B's immigration appeal was decided (from her point of view successfully) in late 2002, we do not think that this entry indicates a basis on which to discredit statements made in 2003; particularly those statements which relate to an alleged failure by Mr. Dawood to show respect to his client at interview, which would be hardly relevant to the immigration appeal, as opposed to allegations about the quality of his advice.

Continuing with the chronology, Ms. B made her complaint to the OISC on 16th July 2002. She was adamant in giving evidence that the date of 16th August given on her complaint, page 37, is correct, but she is plainly wrong since the Commissioner acknowledged the complaint by letter of 7th August. We are quite clear that that letter was correctly dated.

On 26th August 2002, CIRC, through Mr. Dawood, responded to the Commissioner's notice of complaint in very fierce terms; the response, in several places using enormous type font, accuses Ms. B of lying, and the complaint is effectively rejected wholesale.

On 28th August Ms. Lim on behalf of the Commissioner requested the case file. On 4th October, the Commissioner's office requested, and was promptly sent, copies of the written representations made to the Home Office on behalf of Ms. B. On the same date Ms. Palmer was asked whether she could give evidence corroborating Ms. B's account of the matter. She replied in very strongly critical terms by letter of 17th October.

On 6th February 2003 Mr. Copus, who had by that time taken over from Ms. Lim in dealing with this file in the Commissioner's office, sent a second set of allegations to Mr. Dawood. This letter did not make reference to particular paragraphs of the Code. The relevant part of the letter reads as follows:

This letter brought another strong response on 15th February from Mr. Dawood, saying:

On 27th March, the Commissioner made the determination to which we have already referred.

So there are three adverse determinations which are the subject of the appeal to us and we will deal with them one by one.

The first is an alleged contravention of section 37 of the Code relating to the passport. The allegation is that Mr. Dawood did not return the passport to his client without delay. It is not suggested that he should have returned the passport in the two days between receiving it and the beginning of the meeting with the client. What is said is that the delay of something like 15 minutes, possibly a little longer, was unjustified and amounted to a breach of paragraph 37. We think that it was plainly reasonable for Mr. Dawood to expect the client to sign a receipt for the passport. It was unreasonable to require that receipt to be typed, if this was going to involve more than a minute or two's delay. Certainly it was an unfortunate way to behave: to first suggest that the client would have to return on another day for a typed receipt, and then to obstruct even for a short time the handing over of the passport, but we do not consider that this amounted to delay within the meaning of paragraph 37 and we therefore set aside that determination.

Turning to the alleged breach of paragraph 49, this relates to the alleged inadequacies of the notice of appeal of 6th March 2002, page 181 of the bundle, the terms of which we have already set out. The question is whether the lodging of the notice in these terms constituted a failure by Mr. Dawood to act in the best interests of his client. Mr. Trumpington points out, and Ms. Richards accepts, that there was no mention in the original notice of complaint at page 41 of the bundle, dated 7th August 2002, of the alleged inadequacies of the notice of appeal. There is a general reference at the outset of the document to a contravention of paragraph 49 consisting of a failure always to act in the best interests of the client, but, as we think Ms. Richards accepted, this could not possibly be specific enough to put Mr. Dawood on notice that objection was taken to the terms of the notice of appeal. Nor is there any reference to the notice of appeal in the supplementary allegations letter sent by Mr. Copus on 6th February 2003.

Schedule 5, paragraph 6(1) requires that before a complaint is recorded by the Commissioner with a view to being on file at the next application for re-registration, the person who is the subject of investigation must be given a reasonable opportunity to make representations. Such representations cannot of course be made in a void. We think it is clear that the opportunity must be to make representations about specifics and while, as we have said, they need not be pleaded with the particularity of an indictment, the person under investigation must at least be told the gist of the allegation or allegations which he has to deal with.

It is sometimes possible, where an aspect of a case adverse to an appellant has not been put to him at an earlier stage, for that procedural defect to be cured on appeal. But here Mr. Trumpington's complaint is that this charge, that is the inadequacy of the notice of appeal, was not outlined to his client at all. This is clearly correct as a matter of fact. In our view, since the complaint was never put to the appellant, the Commissioner was not entitled to uphold it and thus record it under paragraph 9(1)(a) of Schedule 5. We are therefore bound on this ground alone to allow the appeal in respect of the determination under paragraph 49.

Even if we were wrong about this, we do not consider that the 6th March 2002 notice, on the facts of this case, demonstrates a failure to act in the client's best interests. It is common practice, in our experience, for notices of appeal to be in general terms. Mr. Randall accepted as much, and accepted in his witness statement that this was a valid notice of appeal. We are certainly not endorsing this short form of notice of appeal as best practice, but no one has suggested in this case that any points were in fact available to Ms. B in March 2002 which could and should have been put in the notice of appeal and which might have made a difference to the outcome. Moreover, if a cogent point had emerged in time to be included in the skeleton argument which would, by standard directions, have been required before the hearing of Ms. B's appeal to an adjudicator, we have little doubt that the adjudicator would have considered it. But, strictly speaking, given our view of the procedure followed in determining the complaint in the present case, these issues do not arise.

We turn finally to what we consider to be the heart of the complaint, the alleged breach of the obligation under paragraph 50(a) to show due respect to the client at all times. No complaint is made of failure to show due respect to the courts and the legal system.

We are not impressed, we should say at once, by what may be called the pleading point. The pleading point is that the original notice of complaint, page 42, and the supplementary letter making further allegations, did not refer specifically to paragraph 50(a). Indeed, the letter of 6th February 2003, while containing the gist of the factual complaint against Mr. Dawood in respect of the 9th April meeting, does not refer to any paragraphs of the Code at all. However, that letter, page 141, does put the facts of the allegation fairly and squarely. Mr. Dawood knew the case he had to meet. He rejected it wholesale on the facts. Whether paragraph 1 of the factual allegations in that letter, which we have set out earlier in this judgment, referred to paragraph 50(a) of the Code, paragraph 50(b) of the Code or no paragraphs of the Code at all, is, in our view, immaterial.

We turn then to the merits of the complaint. As both counsel have correctly pointed out to us, there is a wide gulf between the evidence on each side. Mr. Dawood's evidence, as we have said, is that nothing untoward occurred at all. Ms. M's evidence is that Mr. Dawood was arrogant and aggressive. Ms. B's evidence is that she was made to feel small and was talked to in a patronising way. Ms. Palmer, if anything, goes a good deal further.

We accept the evidence of Ms. M. We accept the evidence of Ms. B to the extent that we have set it out, namely that she was made to feel small and talked to in a way which she considered patronising. We accept Ms. Palmer's evidence insofar as she corroborates Ms. M and Ms. B, but insofar as she goes further, we do not accept it. We consider that Ms. Palmer was determined to present Mr. Dawood in the worst possible light.

But, viewing the matter as a whole, we consider that the interview was not conducted as it should have been, that Mr. Dawood did not show due respect to a visibly distressed client, as we accept Ms. B was. We therefore uphold the Commissioner's decision to record the complaint of a breach of paragraph 50(a). So the appeal to that extent is dismissed, and in other respects is allowed.