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IN THE FIRST-TIER TRIBUNAL
IMMIGRATION SERVICES Case No.IS2009/005/RTR
GENERAL REGULATORY CHAMBER
ON APPEAL FROM:
Immigration Commissioner’s Decision
Dated: 19 ~August 2009
Appellant: LONDON COLLEGE OF PROFESSIONAL DEVELOPMENT LTD.
Respondent: THE IMMIGRATION SERVICES COMMISSIONER
Heard at: Victory House, 33 – 34, Kingsway, London WC2B 6EX
Date of hearing: 19th & 20th January 2010
Date of decision: 26th January 2010
Before Brian Kennedy QC (Chair)
and
Dr. Susan Rowlands OBE
and
Paul Martin Barnett
Attendances:
For the Appellant: Nonyelu Okoye
For the Respondent: Tom Cawcutt
Subject matter: Appeal against refusal to register.
Cases: NoneIN THE FIRST-TIER TRIBUNAL Case No. 2009/005/RTR
GENERAL REGULATORY CHAMBER
DECISION OF THE FIRST-TIER TRIBUNAL
1. The Parties appeared at the rescheduled date before this Tribunal on the 19th January 2010 and the Respondent sought a short time to consult. The parties then indicated to this Tribunal that by consent, they sought this Tribunal to allow the appeal. Accordingly the Appeal was allowed.
2. The Appellant then sought an order for the costs of this appeal. He conceded that the decision to refuse dated the 19th August 2009 was neither frivolous nor vexatious but submitted it was unreasonable in the circumstances.
3. This Tribunal did not accept this submission and refused the application for costs.
BACKGROUND AND EVIDENCE.
4. The London College of Professional Development Ltd., (hereinafter referred to as “the Appellant”) applied on the 15th of February 2009 for Registration to the Immigration Services Commissioner (“the Respondent”). The application was received on the 23rd February 2009. The application named Nonyelu C. Okoye as their adviser and indicated their intention was that he would advise at Level 3 in all categories.
5. By decision dated the 19th August 2009, the Respondent refused the Application. The Appellant issued a Notice of Appeal dated the 9th September 2009 which was received by the Respondent on the 15th September 2009. The Respondent served a Notice in reply dated the 13th October 2009 and the hearing before this Tribunal was fixed for the 3rd & 4th December 2009. The communication of these hearing dates was not acknowledged by the Appellant.
6. In the circumstances of the case generally, (as will become apparent below) it is not necessary to rehearse here all the detail of the factual matrix or the reason or reasons behind the Respondents’ decision but Section 83(5) of the Immigration and Asylum Act 1999 requires the Respondent “to exercise her functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services: - (a) are fit and competent to do so and (b) act in the best interests of their client”.
7. The concern and fundamental reason behind the Respondents decision to refuse registration lay in a finding against Nonyelu C. Okoye as a Solicitor when he appeared on the 6th January 2005 before a Solicitors Disciplinary Tribunal (“the SDT”) as constituted under the Solicitors Act 1974. The SDT in a ruling dated the 26th of April 2005 (which we shall hereinafter refer to as “the 2005 Findings") effectively found Nonyelu C. Okoye guilty of conduct unbefitting of a solicitor and punished him accordingly with, inter-alia, significant restrictions to his practising certificate.
8. By Letter to this Tribunal dated 1st December 2009, Peter Cadman, Solicitor of Russell-Cooke Solicitors, informed this Tribunal that he had been instructed to represent the Respondent herein. In that letter he referred to legal limitations on the 2005 Findings and thereby helpfully informed this Tribunal that “The Solicitors Regulation Authority, however, has conceded that paragraph 121 where the SDT purports to impose these conditions is an unlawful Order outside its jurisdiction.” and that “The Solicitors Regulation Authority has conceded that any conditions on Mr. Okoye’s practising certificate must be construed under Section 13 of the Solicitors Act in the normal course of events”.
9. Mr. Cadman unfortunately was not aware of the hearing dates set for the hearing of this appeal at this Tribunal of the 3rd and 4th December 2009 and was, in the event, unable to attend. The hearing was therefore adjourned to the 19th & 20th January 2010.
REASONS FOR DECISION
This Tribunal is conscious of the burden on the Respondent arising from the statutory duties and obligations as indicated and referred to at paragraph 6 above. We understand the resultant concerns of the Respondent in light of the 2005 Findings. It is important that there is careful monitoring and where necessary restriction of the services provided by those who hold themselves out as fit to provide such services. We are also conscious of the Article 6 and other related rights under the Human Rights Act. 1998, of those making applications to the Respondent and on appeal of decisions therefrom to this Tribunal. We find as a fact that the conduct of the Respondent in coming to the decision on the 19th August was not unreasonable in these circumstances.
The import of the legal position arising from the extent of the Respondents’ reliance on the 2005 Findings was brought to the attention of the Respondent through the helpful correspondence referred to above from Mr. Peter Cadman. This Tribunal find as a fact that on consideration of that position the Respondent has acted reasonably in its consent to allow the appeal. The Tribunal find any imbalance or unfairness to the Appellant as the result of any delay in reaching that agreement was proportionate in all the circumstances
Brian Kennedy QC
Judge
26 January 2010