Kenny Kehinde T/a Ikut and Assiciates v OISC

The Tribunal refuses the appeal.

Introduction: This is an appeal under Section 87 (2) of the Immigration and Asylum Act 1999 (“the Act”), in which Kenny Kehinde Tuki t/a Ikut & Associates Limited, (“the Appellant”) appeals the decision of the Immigration Services Commissioner (“the Respondent”) dated the 28^th September 2011, wherein the Respondent refused to continue registration of the Appellant by the Office of the Immigration Services Commissioner.

The Law: The Act (Part V) makes provision for a scheme to regulate immigration advisers and service providers. Schedule 5 to the Act makes provision for the Respondent to make Rules (“the Rules”) with regard to the professional practice, conduct and discipline of registered advisers and their employees or those supervised by them in connection with the provision of immigration advice or immigration services. It also enables the respondent to publish a Code of Standards regarding the conduct of persons providing immigration advice or immigration services (“the Code”).

The principles to be applied by the Respondent are found in the Act, in particular: - Pursuant to Section 83(5) of the Act , “The Commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services are, inter-alia, fit and competent to do so.

If the Respondent considers that an applicant for re-registration is no longer competent or is otherwise unfit, she must cancel the applicant’s registration under Schedule 6(3)(5).

The burden is on the adviser to satisfy the Respondent that she is fit and competent to provide immigration advice and immigration services, and that she continues to be so (Code 4).

In an appeal against a decision under Schedule 6(3)(5), it is for the Appellant to show that the Respondent’s decision was wrong.

The Decision: The Respondent decided to refuse to continue the Appellant’s regulation by way of a letter dated the 28^th September 2011 (“The Decision”) .

The Decision was taken for four main reasons:

Background: The Appellant had been registered with the Respondent as an adviser at Level 1 since in or about 2006. It should be assumed that the Appellant was familiar with the Rules and Code under which the Respondent operated the registration of advisers. In 2011, as she was about to apply for continued registration, the Respondent had received a complaint from clients of the Appellant called Mr & Mrs Omagbemi (Complaint C5770). The complaint had been investigated by the Respondent. Its findings are not relied upon as reasons for the Decision herein but were part of the ongoing process which led to an audit on the 15^th February 2011 which audit was part of the evaluation on the Appellant’s continued registration. The audit process ultimately led to the Decision, the subject matter of this appeal.

The Appellant has raised (what the tribunal consider to be serious) allegations of Intimidation and Racial and Sexual discrimination and or bias by the Respondent through the caseworker involved in the audit and responsible for the recommendations that led to the Decision. She alleged that the caseworker, Mr. Johnson, was guilty of racial and gender bias. This allegation was made initially through her solicitor in a letter dated the 21^st April 2011. In this letter the solicitor asked for the case to be transferred to a different caseworker on the grounds that the Appellant had been left with the impression that Mr. Johnson felt justified in talking down to her on the premise that ethnic minorities and women in particular were somewhat inferior or inherently dishonest.

The letter of the 21^st April 2011 was passed to Mr. Johnsons’ Team Manager, who wrote to the Appellants solicitor on the 6^th May 2011, requesting “any evidence they had to support their client’s allegation and the matter would be forwarded to HR for a formal investigation. There is no evidence before this tribunal, of any reply to that letter of 6^th May 2011. The Tribunal regard these allegations as grave in deed. If they have any merit then the caseworker in question could not be relied on to act fairly in the exercise of his duties. On the other hand if untrue, they have the potential to do untold damage to the reputation of the caseworker in question and further to undermine the operation of the respondent in the difficult and important function of its role. Accordingly the Tribunal sat for four days hearing the evidence in this case. This is in itself quite unusual. The witnesses were observed carefully over a protracted period with a view to assessing their credibility and the veracity of their evidence. We turn first to the facts relating to these serious allegations.

The Evidence: At hearing on the 17^th May 2012, Kenny Kehinde Tuki, the appellant was called and sworn. In her evidence in chief, she indicated that she had been running IKUT since 2006 although it had been formed in 2004. She explained that part of the business is Immigration advice and part of the business is business management. She confirmed that she was the only one giving Immigration advice. In relation to the audit of the 15^th February 2011 she told the Tribunal she had instructed, or delegated, one of the staff to have all active files listed for the audit. She described in detail the audit meeting from the arrival of Mr Johnson to his departure later that day. She described how he arrived alone and how she took him to a room she had prepared for the audit. She offered him a refreshment drink and showed him the rest room. She indicated that he didn’t want any refreshment and she left him to it. He then approached her seeking another file (apparently not on the active list). She asked her assistant to find it as she was in a client meeting for perhaps an hour or so after which she brought the file to him. She described how he had his lunch and came back to talk with her about the audit. She then described the queries raised by Mr. Johnson in some detail. He made in depth enquiries about specific files and about information from clients that he appeared to regard as suspicious. He indicated that he would like to see individual accounts for immigration cases and he was promised that these would be produced. She indicated that he had explained that he needed to see what was charged in each case and when it was lodged. She told the Tribunal that her sister had promised that “we would have this next time”. She recounted how Mr Johnson had indicated that in future when we charged before a case that we should have a client account. She confirmed that they undertook to open client accounts in future. This summary of some pertinent aspects of her evidence led to the conclusion of this audit.

The Appellant then went on to describe how she had felt uncomfortable during the audit. She recounted this was particularly so when he seemed to insinuate that documents provided by some clients were false and that she ought to have recognised this. She told the Tribunal that she did not think this was her role. When asked about the manner with which Mr Johnson had dealt with her, she said: “When he arrived, I thought he was a caseworker. I was expecting a more professional cordial manner. I thought that he was there to help. I felt intimidated by him and his manner”. Post audit she recounted; “I complained because his requests seemed threatening rather than simple requests”. She continued; “He became overbearing and in front of my sister”. She told the Tribunal that she complained about him after he produced all his reports. I had, she said, co-operated with him all along. She explained that she didn’t go to solicitors until later because he wanted to see bank statements in relation to my professional indemnity

This effectively, was the evidence, at its height of intimidation and discrimination on the basis of gender or race. The appellant was completely unconvincing about these allegations and in the view of the Tribunal failed to establish a prima facie case to support them. The requests made by the caseworker were all for information that any registered person would know to expect from a working knowledge of the Rules and Code. We do not rehearse these here but of particular note, because it runs throughout the theme of the appellants case herein, inter-alia, a registered person would know that they must keep appropriate accounts, including a distinct record of the transactions undertaken for each client, they must keep a clear written record of all advice given, all work done and all transactions made on behalf of each client and all fees paid by the client. Such records should be available for inspection by the Respondent so as to enable her to carry out her functions under the Act.

The evidence of the appellant at the hearing of this appeal indicated a complete lack of understanding of the Rules and Code. Furthermore she seemed to be indignant at being disturbed by an audit which was interrupting her “business” meeting. She clearly did not like the queries raised by the caseworker, whom she thought had it in for her. However, there was nothing in her evidence to suggest that Mr. Johnson was treating her any differently than he would have treated any other person. Rather his queries were exposing an ignorance of, or worse contempt for, the Rules and Code and were properly testing of competence and fitness of a registered person. Having observed the appellant, it is our view she was aware he was not going to go away and as time went on she became determined to distract his efforts to determine the issues he was employed to consider and make his recommendations upon.

We are of the unanimous view that the allegations of intimidation and bias on the grounds of race or gender are utterly unfounded and have been used to discredit the caseworker in question. It is difficult to determine to what extent, if any, these allegations were made maliciously. We cannot determine the genuine belief in the appellants’ mind as to the reason behind the manner in which the audit was carried out, but we have no doubt that her allegations are unfounded and provide some form of distraction from her own shortcomings as a registered adviser. We shall turn to these shortly but first comment on the manner in which the caseworker did carry out his function in this case.

Mr. Johnson gave evidence by witness statements also and added briefly with evidence in chief. He was in the witness box for almost two days and cross examined most competently at length on behalf of the Appellant. One only has to peruse his witness statement, his working notes, memos and records to understand how diligent and conscientious he is. If criticism is to be laid at his approach to his work, it may be that he is slightly over zealous. However the Tribunal listened carefully to the methodical approach he takes to his work and in particular the manner in which he approached this case to reach a fair and sound analysis of the appellants work on which he could make an informed opinion on how fit and competent she was to carry out the important work entrusted to a regulated person. This he did despite a veiled reluctance by the appellant to provide answers to his queries and documents to verify her mode of operation. The Tribunal also learned that there have been previous complaints about Mr Johnson and the manner in which he conducts his investigations. However there has never been any finding of wrongdoing against him and clearly those who are investigated by him are going to resent the thorough and relentless investigation that he carries out. We listened carefully to his responses under lengthy and testing cross examination and accept entirely his bona fides. This tribunal regard Mr Johnson as a credit to his employer and the important function served thereby.

We now turn to the four grounds for the impugned decision

The tribunal unanimously find, on the facts, that the appellant has failed to establish the respondent was wrong in reaching its decision in this matter. Despite the able representation on behalf of the appellant in these proceedings, this Tribunal find the respondent acted in a fair and reasonable manner throughout their audit and considerations arriving at their decision. The cross examination by the appellant failed to undermine the weight of the arguments, that the appellant is not to be regarded as fit and competent to act as an adviser.

Immigration advisers fulfil an important role, They are required to deal with vulnerable clients who often do not have experience with the English legal system. The relevant law can be complicated, as can the factual basis of each case. The decision made can have a profound effect on the client’s status in the UK. As a result it is important that advisers are fit and competent and that their client’s are fully informed.

For the reasons and circumstances set out above, the Tribunal unanimously refuses this appeal.