City Immigration Consultants Limited v Office of the Immigration Services Commissioner

IN THE IMMIGRATION SERVICES TRIBUNAL

APPEAL NO: IMS/2005/7/RCR

CITY IMMIGRATION CONSULTANTS LIMITED

Appellant

and

THE IMMIGRATION SERVICES COMMISIONER

Respondent

Before:

George Marriott

Dr Alan Montgomery Mrs Shindo Maguire

Sitting at Procession House, 55 Ludgate Hill, London EC4M 7JW

Dates of Hearing:

10th and 11 th November 2005

Sent to Parties:

2 December 2005

FINDINGS

INTRODUCTION

1.

This matter was heard by the Tribunal over two days when the Commissioner was represented by Miss Neminathan solicitor, and the Appellant was represented by Miss Simpson of Counsel. The Tribunal made a Directions Order on the 28th September 2005. The Respondent lodged with the Tribunal by fax their only witness statement from Miss Balasingam on the 19th October

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2005 and asked for permission to adduce certain extra documentation which hitherto had not been disclosed.

2.

The Appellant lodged two witness statements for the only witness they called namely Mr Cooper dated the 31 st August 2005 and the ih November 2005. At the hearing an application was made by the Appellant for an adjournment on the grounds that another matter affecting Mr King a Director of the Appellant was for hearing by the Tribunal later on in November 2005 and that the evidence which would be led in this appeal was similar evidence to that to be led against Mr King concerning the cases of M, V, and MM. It was submitted that as the subsequent case involved disciplinary proceedings, that this matter should be adjourned until the conclusion of those disciplinary proceedings.

3.

The application was opposed, and having listened to submissions, we rejected the application on the grounds that the evidence being led in this case in fact did not impinge upon the three cases above mentioned. We also gave permission for the Respondent to rely upon the documentary evidence which had been submitted late, and also to the Appellant in respect of the witness statement which had also been lodged late.

4.

We were very disappointed that the Appellant, had failed to comply with the second direction given on the 28th September 2005 namely to prepare the fully paginated bundles to be used by the Tribunal and all parties at the hearing. In fact the Appellant, in an attempt to comply with the Directions Order filed at the Tribunal a bundle the day before the hearing and which we saw on the day of the hearing. Hitherto, the Tribunal had decided to work with all the papers previously submitted and the Tribunal had kindly prepared a bundle which we used as the trial bundle. Accordingly reference was only made to the Appellant's appeal bundle insofar as it contained any document not already in the bundle prepared by the Tribunal. We expressed our concern that the Appellant had failed to comply with the Directions Order but we were told that the bundle was not prepared on time because of illness and a failure to understand what was required of the Appellant.

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BACKGROUND

5.

Pursuant to the Immigration and Asylum Act 1999, the Respondent is charged by Parliament with ensuring as far as is reasonably practical that those who provide immigration advice or immigration services are fit and competent so to do, act in the best interests of their clients, do not knowingly mislead any Tribunal, Court or Adjudicator, do not seek to abuse any procedure operating in the United Kingdom in connection with immigration or asylum matters, and do not advise any person to do something which would amount to such an abuse (see Section 83(5».

6.

In determining whether a registered person is competent or otherwise fit to provide immigration advice or services, the Respondent could take into account any breach of his Rules by the Appellant or indeed any person working under the supervision of the Appellant (see paragraph 1 (3) of Schedule 5 of the 1999 Act).

7.

The Appellant who had been registered with the Respondent for a number of years, applied for continued registration in 2004 pursuant to an application received by the Respondent in April 2004.

8.

The application was made on the Respondent's form and in accordance with paragraph 3(4) of Schedule 6 of the 1999 Act, the Respondent could require the Appellant to provide him with such further information or supporting evidence as he might reasonably require pursuant to paragraph 3(4) of Schedule 6 of the 1999 Act.

9.

Pursuant to paragraph 3(5) of Schedule 6 of the 1999 Act, the Respondent was bound to consider the Appellant's competence and fitness, and if he concluded that the Appellant was no longer competent or was otherwise unfit to provide immigration advice or services, then he had to cancel the Appellant's registration. In so doing, he could also take into account the decisions that he had made recording any complaint and decision against the Appellant. This was pursuant to paragraph 9(1 )(a) of Schedule 5 of the 1999 Act.

10.

In discharging his duty, the Respondent appointed a caseworker BB to carry out an audit at the Appellant's premises which she did in May 2004. As a result of

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11.

12.

that, and following the Respondent's procedure, she identified a number of issues which she required clarifying, and requested that further evidence be lodged in support. That requirement is set out in the Identified Issues Report at pages R79 to 86 of the trial bundle. She did that and then there was further correspondence largely from her to the Appellant with some letters from the Appellant to her and some information supplied. The final exchange of correspondence was in April 2005 when the Appellant submitted his financial statements for the year end 31 st March 2004.

Following this, BB prepared a draft letter which was a "refusal of registration" and which was eventually sent to the Appellant dated the 10th June 2005 (R1-6). The Respondent considered a number of matters and concluded that the Appellant was no longer competent or no longer fit to provide immigration advice or services and in accordance with his statutory duty cancelled the Appellants application for continued registration.

The Appellant appealed to this Tribunal, and in the meantime applied to the Tribunal to suspend the decision. This was determined against the Appellant in July 2005.

BURDEN AND STANDARD OF PROOF

13.

14.

The Appellant's appeal in a nutshell was that this decision was wrong and that there was no or no sufficient evidence for the Respondent to come to the conclusion that the Appellant was no longer competent or was otherwise unfit to provide immigration advice or immigration services.

Pursuant to the Immigration Services Tribunal Rules 2000, the burden of proof is on the Appellant on the civil standard namely on the balance of probabilities (Rule 22).

THE EVIDENCE

15.

We heard two live witnesses namely EC for the Appellant and BB for the Respondent. We also had as indicated previously effectively a trial bundle and reference to the pagination of that bundle is referred to in this Finding as far as

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16.

RULE 31

17.

is appropriate and necessary. The prefix R means documents supplied by the Respondent. The prefix A means documents supplied by the Appellant.

EC was taken through the Identified Issues Report and his evidence on various points was as follows.

A request had been made at the audit for the company's accounts for the year ends 2003 and 2004 be filed with the Respondent by the 2nd August 2004. The Rule states that "a registered person must have audited, certified or otherwise verified business accounts". The Rule is broad. Audited or certified seemed to us to have connotations of a statutory requirement where as verified seemed to us to be a little broader. By May 2004, whilst it was evident that the 2003 accounts were available, it was also evident that the 2004 accounts were not available and might well not be available for some considerable time.

18.

The 2003 accounts were sent to the Respondent late but on the 30th September 2004 (R11 0). These were received by the Respondent on the 4th October 2004 (R111-122). The accounts came within a wrapper bearing the name of a firm of chartered certified accountants who to the observer would have prepared these accounts; and they were signed by Mr Cooper as Company Secretary (R113). According to the Respondent this information was deficient in that they were not actually signed off by the accountants and the Respondent made complaint about that in the letter of the 29th November 2004 (R128) prompting a response from the Appellant on the 3rd December 2004 (R132) and a further request from the Respondent by letter dated January 2005 (R139) for the 2004 accounts to be signed off by the Appellant's accountants. A letter from the accountants explained that the 2003 accounts did not have to be signed off by the accountants unless they were audited but confirmed that the accounts had been filed with Companies House and the Inland Revenue. The letter also asserted that the absence of a signature from the accountants "would not make any difference to the credibility of the accounts so we see no reason why the DISC is insisting on the signed copy". The letter concluded that the accounts for 2004 could be signed and then a copy could be sent to the DISC. The letter also dealt with certain other matters raised by the Respondent.

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19.

20.

21.

22.

In despite of this letter, BB insisted in her letter of February 2005 (R147) that the 2003 accounts be signed by the accountants and that the Appellant do lodge the 2004 accounts by the 2nd March 2005. There then followed a number of telephone calls in March and April (between EC and BB) (R153-156) pursuing this demand and which resulted in the 2004 accounts being lodged with the Respondent by fax dated the 19th April 2005 (R 157-187). Again these accounts were not signed but were under the wrapper of the Appellant's certified accountants. Eventually however the document for 2004 accounts was duly signed by the accountants dated the 28th April 2005 was available (A3-13) and could have been supplied upon request.

When BB gave evidence, she indicated that the Commissioner had interpreted the Rule as meaning not only must the most up to date accounts be available, but they must also be signed off by the preparing firm of accountants.

We were concerned about these requests from the Respondent. Firstly it seemed to us that if accounts had been filed with Companies House and the Inland Revenue apparently by the Appellant's accountants, then the absence of a signature from them actually on the accounts did not mean that the accounts were not verified. It seemed to us looking at the document R145, that the request from the Respondent was unnecessarily bureaucratic and that in reality that letter would be sufficient for the Respondent to come to the conclusion that the accounts had been verified.

Secondly we were concerned at the request by the Respondent for not just the 2003 accounts but also the 2004 accounts. The Rule does not actually state that the most up to date accounts have to be available. Whilst we are prepared to give a fairly broad interpretation to the Rule, it seemed to us that where there was evidence before the Respondent that the accounts for the year end 31st March 2003 were not finalised until January 2004, that the Respondent should take those as the accounts, where it was evident that there was an explanation for the delay. It seemed to us that it was wrong for the Respondent to continue to defer the 2004 application for continued registration until at least those accounts were available which would not be until at the earliest January 2005 and, as it appeared from the accounts that were finally submitted, not until April 2005 (A 13). BB's evidence on this point when questioned by the Tribunal was that she decided to refuse the application for continued registration shortly after

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the 19th April 2005 and that the trigger was the fact that the accounts were not signed. She stated that had they been signed by the accountants, she probably would have approved the application but asked the Appellants to resolve the outstanding issues as soon as possible. BB also stated that her requirements as caseworker might differ from other caseworkers. It seemed to us that the Appellant's application for registration in 2003 had been successful without sight of the 2003 accounts and therefore reliance must have been made on the accounts for the Appellant for 2002 or possibly 2001. In other words, a different caseworker had taken a more realistic view of what was required.

RULES 28-30

23.

24.

25.

This broadly covered the transaction accounts for each client operated by the Appellant. The Identified Issues Report indicated that this matter was to be checked at the next premises audit.

The evidence from EC was that he anticipated, in line with previous audits, that the next audit would take place in April or May 2005. He gave evidence that BB and her assistant made it plain that they would come again and he concluded from that that they would come about the same time in 2005. He stated that they hoped by then that all the documents outstanding would be in place. His evidence concluded that provided at the next audit there was good evidence that the Rule was being complied with, that that was the end of the matter.

BB indicated to the contrary. She stated firstly that the Appellants never asked for the date of the next audit. Secondly that she anticipated making a further audit within 3 months of the original audit in May 2005. That would amount to August 2005 and she confirmed that that was the case. She stated that that audit didn't take place, because the Appellants had not supplied the information BB wanted. Nonetheless we noted that the letter enclosing the Identified Issues Report was not sent out to the Appellants until 19th July 2004 (R79) and therefore it seemed to us that if BB was planning a further audit in August, that that letter might well have set a date or indeed referred to the follow up audit which would only be taking place within 2 to 4 weeks of the date of that letter. No reference was made to it, and there was no reference to it in BB's witness statement. Accordingly we came to the conclusion on the balance of probabilities that EC's recollection of the events was to be preferred and that the

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issues concerning Rules 28 to 29 and 30 would have been checked at an audit in about April or May 2005.

RULES 14-17

26.

27.

This related to Fee Schedules. BB had requested that an amended List of Fees and Fee Schedules be submitted to her by the 2nd August 2004.

The evidence from EC was that he sent a letter dealing with that matter and others (R11 0) in September 2004 together with the List of Fees (R123). It was clear that BB was unhappy with certain aspects of those fees and therefore an amended Schedule of Fees to comply with her request was sent in December 2004 (R138). The amended scale of fees absorbed the costs of registration fees in certain instances added to other fees in others. The criticism then raised

by BB was that the work undertaken was not clear and nor was it clear whether the fees included VAT and expenses. Requests again were made by BB for further documents and in particular the Fee Schedules, although BB agreed, as was apparent from the Identified Issues Report, that Fee Schedules did exist in the Appellant's organisation. It was unfortunate that BB's letters became longer and more difficult for the Appellant to fathom as to what further information was actually being requested by BB. A further request was made in BB's letter dated January 2005 (R 140), February 2005 (R 148) but in subsequent telephone calls, no reference was made to them, BB simply concentrating upon the audit or verified accounts. We took the view that the Appellant was trying hard to comply with the requests from BB and having heard BB, came to the conclusion that the absence of an amended Fee Schedule was not the be all and end all.

CODES 18-19 AND RULE 33

28.

This related to the complaint's procedure. The action requested of the Appellant was to provide a written procedure detailing how the Appellant would investigate complaints made by clients. The complaints procedure was to be submitted to the Respondent by the 2nd August 2004.

29.

The evidence was that a letter was sent by the Appellant at the end of September 2004 (R11 0 and R124), that BB was unhappy with the document as it appeared (R130), and that the Appellant addressed this by a fresh document

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30.

(R135). The only matter then outstanding about which BB expressed concern was the identity of the senior caseworker and the identity of the Board (R142). EC stated that it was an omission not to supply that final bit of information to BB for which he apologised even though BB had sent a further request concerning it in February 2005 (R150). Nonetheless it was not an issue raised in the telephone call subsequently between BB and the Appellants.

Clearly the document should have indicated names of individuals to whom a complaint was to be made against the fee earner concerned, but in view of the fact that the Appellant had only two advisers, coupled with the evidence from EC which was that if there was a complaint against him his co-Director would deal with it and visa versa, led us to conclude that broadly the Appellant had complied with this requirement of the Respondent.

CODE 16K

31.

This related to the Appellant having in place management policies and structures. The action required by BB was for the Appellant to demonstrate that work undertaken by an advisor was regularly reviewed. The evidence from EC was that reviews took place every 3 months and that the co-Director and himself did the reviews. BB supplied a sample review form (R138B), and the Appellant supplied their own file review form (R125). By letter dated the 29th November 2004 (R130), BB expressed dissatisfaction with the arrangements and stated as she had been informed by the Appellants at that audit that file reviews had not been conducted on any of the files, then the response indicating that 75 files were viewed every 6 months was not good enough either. It seemed to us having listened to BB on this, that we were not satisfied she had been told there were no file reviews, and we preferred the evidence of EC which was to the effect that prior to the audit there were 3 month reviews but that some encouragement had been given by BB to indicate that that was too onerous. That appears to have been interpreted by EC that every 6 months would be sufficient as he gave evidence, which we accepted, which was that prior to the audit the reviews had taken place every 3 months. Further information was

requested initially to be given by the 7th December 2004 (R131), and then the 12th January 2005 (R143). We came to the conclusion on the balance of

probabilities that file reviews were taking place, but there might have been a misunderstanding between BB and the Appellants as to the number of files to

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be reviewed and the frequency, but that the Appellant had been making efforts to comply with the Code and have in place a system which was broadly satisfactory in relation to the monitoring and auditing arrangements with the advice given by each advisor.

CODES 29, 31, 32 AND 33

32.

The related to the requirement to keep orderly files. The action required of the Appellant was set out and the note concluded that that matter would be checked at the next premises audit (R85). It seemed to us for the reasons set out in paragraph 25 that all that had been requested of the Appellant was that those systems were in place and that evidence of them would be available at the next premises audit in April or May 2005.

CODES 9 AND 30

33.

34.

The final matter addressed client care.

The action requested of the Appellants merely concentrated upon the client care letter and the demand from the Commissioner that a clause should be inserted in the letter to request explicit client consent to enable the Respondent to review the quality of advice provided by the advisor. Evidence was given by BB that Code 30 had been interpreted by the Commissioner as a requirement that in each client care letter, authority was to be given to the Commissioner to inspect a particular file. It seemed to us on an analysis of Code 30, that that requirement was going beyond what Code 30 stated. Code 30 states "in order to enable the Commissioner to carry out his functions under the Act, an advisor must provide, with the consent of the client, access to client's records when requested to do so by the Commissioner or a person properly authorised by

him".

35.

When questioned about this, BB simply stated that those were the directions she had received via memos from the Commissioner, but our conclusion was that that went far beyond what Code 30 stated and that all Code 30 required was that if the Commissioner wanted to look at an individual's file, all the advisor had to do was to write to the client and confirm that he could release the file to

the Commissioner. The evidence given was that the Appellant again attempted

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36.

to comply with the request of the Respondent by producing a composite document which also dealt with complaints (R135-137). There was no reference to the breach of Codes 9 and 30 in the letter from BB dated the 29th November 2004 (R128) and when this was raised in the letter dated January 2005 (R143), the fact that the Appellant did not reply was conceded as an omission.

We came to the conclusion that the request from the Appellant went beyond what is required of Code 30, and secondly it was confusing in referring to "a sample client care letter". What had been provided by the Appellant was effectively a template but it wasn't clear to us from that letter that BB was asking for examples of how that template letter was put into practice by reference to specific cases. It seemed to us that the use of the word "sample" could reasonably have led to the conclusion that this was a requirement to supply the template which of course had already been done. We noted that this was not pursued in the telephone calls between the Appellants and BB in April 2005.

THE LETTER OF REFUSAL

37.

38.

39.

BB was taken through this letter. She agreed that she had commenced drafting it shortly after the 19th April 2005. The letter of refusal, embraced more issues than those referred to in the Identified Issues Report. We found no problem with that, but were concerned that the drafting of the letter in part gave an unbalanced view as to what had been found.

For example, reference was made (R3) to two complaints that had been determined and recorded on the file during the application for continued registration (see 956 and 1075). They were dated October 2003 (R37A) and January 2004 (R371). They referred to complaints made in June and August 2003 respectively. In other words they were determined before this application for continued registration. We understood that those were the only two complaints made against the Appellants leading to an adverse determination and a recording on file.

Code 9 was alleged to have been breached with regard to file 956, and we concluded that it was unfortunate that the Commissioner's letter of refusal referred to the fact that "copies of the client care letter were not found on a

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40.

41.

42.

number of files..." when BB confirmed that in fact the two specific referred to were the only ones found. Similarly there was a suggestion that the Appellants should have had the client care letter signed by the client (R3). BB confirmed in evidence that there would be no breach of the Code if that were not the case.

At R4, the Commissioner noted that in the determination on file 1075, the client had not been contacted for a period of 9 months. There was no other aggravating feature to this. Further in R4, reference again was made to the fact that there was "a lack of records and attendance notes kept on clients files..." there was specific reference to only two files, again giving the impression that these were examples rather than the only two files to be found in error.

Still on R4, the Commissioner determined that there was a breach of Code 30 with regard to whether clients had given their consent for the Commissioner to access their files. For the reasons set out above, we concluded that that was not a requirement that the Commissioner could make in view of the content of that Code.

The Commissioner also took the view there was a breach of Code 35 in that records had to be retained for 6 years. It seemed to us in the particular circumstances of the case where a client had demanded his file or transferred it

to another representative, that it was unreasonable for the Commissioner to come to the conclusion that the Appellant was in breach of that Code because he had failed to keep a photocopy of the file before releasing it. Whilst it may be necessary in certain circumstances to protect the Appellant to keep records for 6 years, it seemed to us that the wording of Code 35 which states "records must be retained for at least 6 years" required the Appellant to keep a record of that request and the associated authorities for 6 years nothing more.

THE CORRESPONDENCE LEADING TO THE DETERMINATION

43.

The Identified Issues Report was clear as to what was requested of the Appellant. The letters subsequent to the Identified Issue Report were in large measure, long winded, and would inevitably lead to confusion with the Appellant as to what was required of them. We can fully understand that if the Appellant submitted documents as requested by the Identified Issues Report, there might be further requests from the Respondent seeking further clarification or further

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information. We came to the conclusion that in certain respects, the subsequent letters were asking for changes well beyond those initially identified in the Identified Issues Report, and were confusing in their length and structure. We also came to the conclusion that the Appellants were doing their best to comply with the requests of BB and that there was no evidence at all to indicate that they were being uncooperative or unhelpful; indeed the converse was the case.

DECISION AND REASONS