IN THE IMMIGRATION SERVICES TRIBUNAL APPEAL NO: IMS/2006/7/RV3A
ANTHONY FREMPONG
Appellant
and
THE IMMIGRATION SERVICES COMMISIONER
Respondent
Before:
Mr George Marriott – Legal Chairman
Mr Mahmud Quayum – Lay Member
Dr Susan Rowlands – Lay Member
Sitting at Procession House, 55 Ludgate Hill, London EC4M 7JW
Hearing Date: 2nd August 2006
Sent to Parties: 5th September 2006
DECISION AND REASONS (RULE 24)
BACKGROUND
1. Reference to documents is by reference to the paginated bundle prepared by the Respondent and sent to the Tribunal prior to the hearing. We were able to read the documents placed before us including the witness statements. We have not intended to refer to the documents or the witness statements extensively in this decision.
2. Following an investigation, the Commissioner made a determination dated the 5th May 2006 (193 to 195). The Appellant had applied for continued registration in November 2005 and was authorised to Level 2 in applications for entry clearance, leave to enter or remain, and nationality and citizenship. The determination resolved to lower the Appellant’s Level to Level 1 in all three categories.
3. The Commissioner took her decision in accordance with paragraph 3A of Schedule 6 of the Immigration and Asylum Act 1999. That part of the statute empowered the Commissioner to vary the Appellant’s registration so as to make it have limited effect in any of the ways mentioned in paragraph 2(2); or so as to make it have full effect. The Commissioner also followed the Code 55 of the Commissioner’s Code of Standards which states that “an adviser must have the necessary skills, knowledge, and competencies to meet his or her client’s needs. An adviser must not advise or act for a client beyond the scope of these skills, knowledge, and competencies nor beyond the Level at which he or she is registered or exempted to do so. Details of the competencies for each Level are given in the Commissioner’s Guidance to Advisors.”
4. The Commissioner also acted in accordance with Code 57 which states “an advisor operating at any given Level of activity must have the knowledge, competencies, resources, and information sources relevant to that Level of activity as set out in the Guidance on Competencies published by the Commissioner”.
5. The determination also helpfully stated that if the Appellant wished to be registered at a higher Level he must submit the relevant competence statement to the Commissioner accompanied by the appropriate documentation, and suggested that the Appellant would benefit from further training at Level 2 after which the Commissioner would reconsider the organisation’s Level of registration.
6. The decision came into effect twenty eight days from the date of the decision.
7. The Appellant was dissatisfied by the decision and lodged an appeal to the Tribunal. The appeal set out at pages 5 to 6 of the bundle stated:
The procedure adopted in this case is unfair, because the caseworker did not allow me to explain things to her in depth. She picked the wrong files, that the initial applications were not made by us. This was our first audit and she should have adopted a two stage approach by giving us another chance to come back in six months time for another audit. Her attitude is procedurally flawed.
8. The Appellant also applied for the decision of the Commissioner to be suspended on the grounds that “the Commissioner’s findings are not a true reflection of my competence”.
9. The President of the Tribunal dealt with the application to suspend pursuant to Rule 10 of the Immigration Services Tribunal Rules 2000 and dismissed the application on the 5th June 2006 (11 to 12).
10. The Tribunal made directions for the further conduct of the case on the 26th June 2006. Directions required both parties to lodge witness statements with the Tribunal by the 14th July, and the Appellant was directed to prepare six fully paginated bundles including the witness statements and the documents which should have been filed with the Tribunal by the 21st July. The Directions Order was sent to the parties on the 26th June 2006.
11. Prior to that, namely on the 21st June 2006, both parties were notified that the case was to be heard by the Tribunal on the 2nd and 3rd August 2006.
THE HEARING
12. The Appellant had failed to comply with the Directions Order. Importantly, no witness statement from the Appellant had been received by the Tribunal.
13. By fax dated the 1st August and received in the afternoon of the same date, the Appellant applied for an adjournment on the grounds that he had been taken ill in Ghana and was rushed back to the United Kingdom on Friday last. The reason given was haemorrhoids. Accordingly he sought an adjournment with the alternative that the Tribunal might look at his case on its merit. The Tribunal contacted the Appellant and told him that his application for an adjournment was too late but that if he sought to make an application at the Tribunal on the first day of the hearing, it would be looked at. No promise for an adjournment was granted.
14. On the day of the hearing, the Appellant did not attend, but faxed to the Tribunal the documents indicating that he was suffering from hypertension. There was no medical evidence to suggest that he was not fit to attend the Tribunal. Accordingly, and in view of the conflict between his letter of the 1st August and the fax received on the day of the hearing, the Tribunal resolved not to grant an adjournment but to decide the appeal on the documents which had been lodged.
BURDEN AND STANDARD OF PROOF
15. Pursuant to Rule 22 of the Rules the burden of proof was on the Appellant who had to prove to us the facts upon which he relied on the balance of probabilities.
THE EVIDENCE
16. The Commissioner had filed her bundle which embraced two witness statements, one from ML the caseworker appointed by the Commissioner to carry out the audit (21 to 33), and one by DG a compliance and complaints team manager who attended the audit with ML (34 to 40).
17. The only document filed by the Appellant was his Notice of Appeal and we took that as effectively his evidence.
18. In questioning ML, we established that the Appellant had provided her with a list of his cases which approximated two hundred in number (97 to 99), established that she picked six random files, and established that the Appellant when invited to show a file which demonstrated his best work, chose the file of GC.
19. ML had examined the six files at random, and concluded that none of them complied with the guidance on competence. We were also taken to the report prepared by ML following her audit and dated the 24th March 2006 (179 to 191) where she identified that there were breaches of Codes 9, 10, 12, 16G, 20, 29, 32, and 55. She also identified breaches of Rules 18 and 27.
20. ML emphasised that the purpose of the audit was to ensure that the Appellant was competent at providing services at Level 2. We noted that in the letter to the Appellant, and before any decision was made, he was invited to give an explanation on the Identified Issues Report and was also told that if he had any concerns about the audit or if he wished to have a further discussion, then ML was happy to oblige.
21. We noted that the response the Appellant gave by letter dated the 11th April 2006 was as follows “thank you for your letter of the 24th March 2006 and can confirm that we accept your identified issues and immediate action will be taken to implement your recommendations”. However we noted that this letter was not received by the Commissioner until the 16th June 2006 (192), and followed a reminder to him from the Commissioner dated the 8th June 2006 (196), and the Appellant’s request for further time to respond by his letter dated the 15th June 2006 (197). We therefore concluded that the Appellant may have inserted the wrong date on the letter received by the Commissioner on the 16th June 2006.
22. ML drew to our attention that the Appellant had chosen the file of GC as his best file, and the Identified Issues Report, went into some detail about what was found (page 189 to 191) with the result that ML was concerned that the quality of representation and the management of the case and other cases reviewed did not demonstrate the Appellant’s competence at Level 2.
23. When asked questions by the Tribunal about the Appellant’s case to the effect that she should have adopted two stage approach, ML’s evidence was plain. She stated that in certain cases she probably would adopt such an approach, it all depended upon the degree of non compliance and lack of competence. She also noted that the Appellant was a sole practitioner and therefore had no support structure. She also reflected that, and accepted that a reduction in Levels would affect his livelihood.
24. She reaffirmed the matter set out in the Commissioner’s determination at page 195 to the effect that the Appellant could be reconsidered for Level 2 provided he submitted the relevant competence statement to the Commissioner with supporting documentation, and would look carefully at the training he had undertaken. She anticipated that this would be done upon an application for continued registration, but that in exceptional circumstances, it could be done earlier.
25. On hearing the evidence of DG, she simply confirmed what was in her witness statement (34 to 40) and did not demur from the questions which ML had answered at the request of the Tribunal.
DECISION AND REASONS
The decision of the Tribunal was to dismiss the appeal.
According to the Guidance and Competence published by the Commissioner in 2005, the Appellant’s competences should have included a detailed knowledge of immigration and nationality law including grounds for applications, IND practice in the consideration of cases, IND concessionary/discretionary policies, a detailed knowledge of relevant case law and precedents, and a detailed knowledge of the types of evidence needed to support cases and how to obtain this.
The review of the files conducted by ML demonstrated that the Appellant could not comply with those competences. We refer to the Identified Issues Report mentioned earlier at pages 179 to 191. It was clear to us that a review of the files, and importantly a review of what the Appellant held to be his best maintained file (GC) identified extensive shortcomings for a Level 2 advisor.
We were also satisfied that those shortcomings were so extensive that it was entirely reasonable for the Commissioner to come to the conclusion that it would be totally inappropriate to give the Appellant a further six months to improve upon his competences. We noted that the Appellant at page 192 had accepted the issues raised by the Commissioner and we also noted that he had stated then that immediate action would be taken to implement the recommendations.
He produced no evidence to support his intent, but even if he had, that would have made no difference to our decision, as that evidence would have come about the time of, or after the date of the determination namely the 5th May 2006.
Accordingly as the burden of proof was on the Appellant to show on the balance of probabilities that the determination was wrong, he failed to give any credible evidence to assert that the decision was wrong, and accordingly we were entirely satisfied that the Commissioner was entitled to come to the conclusion that she did.
Signed: ………………………………………………….
George Marriott
Chairman
