Altaf Ebrahim T/a Ebrahim and Co Asian Legal Advisory Service v OISC

This is an Appeal by Ebrahim and Co Asian Legal Advisory Service against a decision of the Immigration Services Commissioner (“the Respondent”), dated 24^th December 2012, refusing the Appellant’s application for the continued registration of Altaf Ebrahim (effectively the Appellant, and hereinafter referred to as “the Appellant”) as an immigration adviser authorised to provide immigration advice and services at Level 3, and authorising him thereafter to provide immigration advice and services at Level 1 only.

The Appellant duly appealed against this Decision by Notice of Appeal dated 19^th January 2013.

On 11^th February 2013, the Tribunal suspended the effect of the Decision until the Appeal had been decided.

The Tribunal sat to determine the Appeal on 9^th July 2013.

Previously, on 12^th April 2013, prior to the first scheduled date, 19^th April, for the hearing of the Appeal, the Appellant had applied for an adjournment on the ground that his representative, Ms Atcha (his fellow-adviser in the Appellant’s firm), required more time to prepare for the hearing. This application was granted by the Tribunal.

On 5^th July 2013, the Tribunal received from the Appellant a draft “Consent Order”, signed only by the Appellant, which sought to provide that the dates of the hearing of the Appeal (9^th and 10^th July 2013) should be vacated, and that the Appellant should continue to practice at Level 3 until the outcome of a further application for “repeat authorisation”.

The Tribunal ascertained that the Respondent did not so consent, and informed the Appellant that the hearing of the Appeal would proceed.

On the morning of the hearing, Ms Atcha renewed the application for the vacation of the dates of the hearing.

Again, the Tribunal ruled that the hearing should proceed. Ms Atcha and the Appellant acceded to this ruling, and the hearing of the Appeal did proceed on 9^th July 2013.

Prior to the hearing, the Tribunal had received from the Respondent a Hearing Bundle, containing the Decision Letter, the Notice of Appeal, and relevant documentation, including witness statements of Chiquitta Davies and Deirdre Gilchrist, employees of the Office of the Immigration Services Commissioner.

The Tribunal had also to hand all those documents furnished by the Appellant.

At the hearing, Ms Atcha called the Appellant to give evidence, and the Appellant was cross-examined by Mr Bisgrove.

Ms Davies and Ms Gilchrist gave evidence on behalf of the Respondent, and were cross-examined.

At the conclusion of the evidence, the Tribunal directed that final written submissions were to be exchanged between the parties and provided to the Tribunal.

In response to this direction, the Tribunal received the Respondent’s Submissions, dated 1^st August 2013, and received also, on 7^th August and 21^st August respectively, the Appellant’s closing Submissions and responding Submissions.

During and after the hearing, and prior to its determination of the Appeal, the Tribunal has considered fully the evidence given on behalf of the Appellant and the Respondent, all of the documents furnished by the Appellant and Respondent, and the written submissions made on behalf of the Appellant and the Respondent.

The Tribunal has reminded itself that the statutory principle governing the material Decision of the Respondent, and the determination of this Appeal, is set out in Section 83 of the Act, which provides, materially, that: “The Commissioner must 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.

The Tribunal has reminded itself also that the burden of proving, on the balance of probabilities, the facts on which he relies (and in effect of proving that the material Decision was wrong) rests on the Appellant.

The Appellant has practised as an immigration adviser for many years, and has been registered with the Respondent as a Level 3 adviser since 2001.

Registered immigration advisers provide immigration advice and services at three Levels, 1, 2 and 3. Level 3 is the highest level, involves dealing with the most difficult and complex immigration and asylum issues, and comprises, inter alia, representation of clients before the material tribunals.

The core issue in the appeal is, of course, the issue of whether or not the Respondent had good and sufficient reasons to amend the level at which the Appellant was authorised to provide immigration advice and services, by, through her material Decision of 24^th December 2012, refusing his application for continued registration as a Level 3 adviser, and authorising him thereafter to provide such services at Level 1 only.

In the course of the hearing it was submitted on behalf of the Respondent that the particular issues in this Appeal relating to the aforesaid core issue were threefold, namely: (a) failings in file maintenance and record keeping; (b) failings in the competence of the advice and services given; (c) failings in the standards of professional conduct towards clients and third parties.

It was accepted on behalf of the Appellant that these were indeed the material particular issues in the Appeal, and the parties, in the course of the Appeal, and in their post-hearing written submissions, dealt fully with those issues.

The Tribunal has decided, in this particular case, to append to this Decision those written submissions.

The Closing Submissions on Behalf of the Respondent, dated 1^st August 2013 to which submissions are appended three appendices, namely: 1. Extracts from the Commissioner’s Code and Rules; 2. Chronology of Key Events and Documents; 3. Chronology and Content of “unprofessional” written representations by Mr Altaf Ebrahim.

The Submissions of the Appellant, received by the Tribunal on 7^th August 2013.

The Closing Submissions by the Appellant, received by the Tribunal on 21^st August 2013.

The Tribunal is grateful to Ms Atcha and to the Appellant, and also to Mr Bisgrove, for the Respondent, for the provision of these comprehensive, cogent and helpful documents.

The consideration of the issues material to the Appeal comprised the reception, consideration and analysis of a very substantive body of evidence, documentary and oral, and of detailed submissions.

The Tribunal considers that the relevant evidence is set out, fully and accurately, in those submissions, as also are the material assertions of each party in support of their case.

Accordingly, for the avoidance of wearying and unnecessary repetition seriatim in this Decision of that evidence and those assertions, the submissions are appended as set out above, and a reading of this Decision should be accompanied by a reading of the appended documents.

The Tribunal thus considers that it may accordingly proceed to set out its Conclusions in respect of the material issues.

Manifestly, in the course of the hearing, and in the aforesaid submissions, the Respondent sought to support its assertions in respect of the alleged failings of the Appellant in respect of “failings in file maintenance and record keeping” and “competence” and “standards of professional conduct”, and the Appellant sought to refute those assertions.

The Tribunal proposes to deal firstly with the issue of competence.

Essentially, the Respondent relied upon two matters.

Firstly, her determination of a number of complaints made against the Appellant in 2011 and 2012. Secondly, the competence and practice of the Appellant in respect of the lodging of notices of appeal.

In this regard, the Respondent relied upon six complaints against the Appellant, and her findings comprised in the determinations of those complaints, made between August and October 2012.

Each of those complaints was upheld, and determined “against” the Appellant.

It is important to note that in the course of the hearing the Tribunal ruled, as it has consistently in past Appeals, that it is not, cannot be, and should not be a function of the Tribunal to seek to re-examine the merits of complaints against advisers - to seek to “go behind” the determinations, because each complaint against an adviser is the subject of a full and final investigative process. This ruling was accepted by both the Appellant and the Respondent in this Appeal.

The Tribunal has regard simply and solely to the determination of a complaint, and to the substance of that determination.

In the Closing Submissions of the Appellant, he has sought to discuss, and make assertions about, the merits of the complaints and their determinations. Whilst the Tribunal fully understands why he should wish to do this, nevertheless the Tribunal has had regard solely to the facts established by the determinations, in terms of those breaches of the Commissioner’s Code and Rules which the Respondent found had been committed by the Appellant in the course of his conduct relating to each of the complaints.

Those material facts established by those determinations, in terms of breaches of the Code and Rules, and the basis of each complaint, are set out, properly and accurately within the terms of the aforesaid ruling, in paragraphs 38 to 128 of the Closing Submissions of the Respondent.

Starkly, comprised in these six determinations are 44 breaches of the Code by the Appellant. 16 separate Codes have been breached - (in the order in which the breached Codes appear in the Submissions) Code 11 on five occasions, Code 18 on two occasions, Code 33 on four occasions, Code 81 on four occasions, Code 84 on three occasions, Code 4 on two occasions, Code 9 on two occasions, Code 72 on one occasion, Code 13 on nine occasions, Code 17 on two occasions, Code 34 on one occasion, Code 6 on one occasion, Code 36 on one occasion, Code 88 on five occasions, Code 20 on one occasion and Code 30 on one occasion.

The substance of each of those Codes may be found in Appendix 1 of the Closing Submissions of the Respondent.

Suffice it for the Tribunal to state that, in its consideration, cumulatively these breaches of the Code establish a gross failure of competence on the part of the Appellant as a Level 3 adviser.

The investigation of one of the aforesaid complaints, C6275, comprised a scrutiny of the practice of the Appellant of lodging, on behalf of many of his clients, what are known as “protective” notices of appeal, in cases where there had been a refusal of an application for “leave to remain”, and where there was no substantive, or any, ground for an appeal.

The effect of the issue of a notice of appeal is to delay the removal from UK of a person who has been refused the right to remain.

The Appellant accepts that on many occasions he did “automatically” issue such notices of appeal. He asserted that this practice was justified by Civil Procedure Rules, and by case law, and asserted also that very many of the appeals which he had lodged in this manner had been successful.

Independent expert legal opinion obtained by the Respondent established that there was no justification either by procedural rules or by case law for the practice of issuing such “protective” notices of appeal, and that, where an application for leave to remain had been refused, and there was no existing leave to remain, and no immigration decision had been made, there was essentially nothing to appeal.

Despite the assertion of the Appellant as to the successful outcome of many of his appeals - he said in evidence that fifty cases in which such “protective” notices of appeal had been issued had gone to a hearing - he failed to produce to the Respondent, in the course of her material investigation, any examples of “protective” notices of appeal which had been substantively listed for hearing.

In the course of the hearing of this Appeal, the Appellant did produce to the Tribunal a single Judgment of the First-Tier Tribunal (Immigration and Asylum Chamber), handed down by Immigration Judge Blake in March 2011. That judgment concerned the appeal of a Ms Kobi, a client of the Appellant, against a refusal of leave to remain. That appeal was allowed, not under immigration law but under Human Rights law, pursuant to Article 8 of ECHR. However, a scrutiny of the Judgment revealed that Judge Blake had said: “However, I have to say that the manner in which Ebrahimi (sic) & Co prepared statements for the appellant and for her partner left a very great deal unsaid. So concerned am I about the behaviour of Ebrahami & Co that I intend to refer their conduct to the Office of the Immigration Services Commissioner by way of a detailed complaint about them.”

No other specific examples of “protective” notices of appeal which, having been issued “automatically”, have produced a positive result, at least by way of a substantive hearing, have been submitted by or on behalf of the Appellant to the Respondent or to the Tribunal.

The Tribunal accepts the assertion of the Respondent that such Notices have been on many occasions issued by the Appellant without due consideration to the merit of an appeal, and without considered, or any, advice being given to the relevant client, and that the issue of such Notices has resulted in charges to clients whose “appeal” had no merit, and that the issue of such Notices is capable of causing unwarranted delay in due process, in respect of the removal of those persons without a right to remain in the United Kingdom.

The Tribunal concludes that the Appellant has failed successfully to refute the assertion of the Respondent that his practice of issuing “protective” notices of appeal demonstrated a failure of competence as a Level 3 adviser.

The Tribunal proceeds to consider the issue of “file maintenance and record keeping”.

The assertions of the Respondent in this regard depended upon the results of two audits of the premises and files of the Respondent conducted in December 2010 and February 2012, and upon the evidence given in the course of the hearing of Ms Davies, a Caseworker employed by OISC, and Ms Gilchrist, a member of the management team of OISC, and Ms Davies’ Line Manager. Ms Davies and Ms Gilchrist conducted the 2010 audit, and Ms Davies the 2012 Audit.

The material findings of those audits, and of the issues raised thereby, are set out in paragraphs 16 to 35 of the Closing Submissions of the Respondent, and, in the conclusion of the Tribunal, are thus set out accurately and in accordance with the evidence.

In summary, the audits disclosed significant deficiencies with regard to the contents of a number of files, most significantly in respect of the absence of attendance notes and records of advice given, and of receipts for fees, and of deficient client care letters, and of such letters which appeared to have been drafted in a “pro forma” manner, without regard to the individual circumstances of the particular case.

The material evidence and assertion of the Appellant in this regard is that the conduct of Ms Davies and Ms Gilchrist was, essentially, incompetent and improper - that they did not read the files properly, and would not listen to any representations made, or reasons given, by the Appellant about issues raised during the audits.

Ms Davies and Ms Gilchrist gave evidence, and were cross-examined. Their cross-examination was brief, and its thrust was that the problems between the Appellant and the Respondent, against a background a number of years of a largely harmonious relationship between them, had arisen solely because of the volume of recent complaints. (The Tribunal has dealt above with the results and validity of those complaints.) The challenge to the audit findings was made on the general ground of the aforesaid alleged impropriety, and there was no effective challenge to the detail of those findings.

Ms Davies and Ms Gilchrist each responded robustly, comprehensively, cogently and convincingly.

The Tribunal prefers, overwhelmingly, the evidence of Ms Davies and Ms Gilchrist to the evidence, and assertions in this regard, of the Appellant.

The Tribunal considers that the audits of December 2010 and February 2012 were carried out with due care and professionalism, and did disclose significant deficiencies in “file management and record keeping”, which the Respondent was fully entitled to take into account in the overall assessment of the competence of the Appellant as a Level 3 adviser.

Finally, the Tribunal has considered the issue of alleged “failings in the standards of professional conduct towards clients and third parties.”

In short, the Respondent has reviewed a body of correspondence from the Appellant - letters and messages from him to the Border Authority (UKBA), to the Office of the Respondent (OISC), to Solicitors and to a client.

The quotations from that correspondence, which the Respondent considered objectionable, are set out in Appendix 3 of the Closing Submissions of the Respondent, and the Tribunal does not repeat them seriatim here.

Undoubtedly, a good deal of the material language used by the Appellant is intemperate, and can readily be construed as “unprofessional”. Some of the phrases may well have given offence.

The Appellant accepted in evidence that he is “quite assertive”, and that he did not like to be bullied or intimidated, and that many clients were aggressive, as were a number of “new” Solicitors with whom he communicated. With regard to UKBA, he said that there was mutual respect, but said also that this organisation could be aggressive, and had a “Gestapo mentality”. With regard to OISC, the material correspondence clearly reveals a deeply hostile view on the Appellant’s part.

The Tribunal recognises that the dealings of the Appellant with others can frequently, and not invalidly, be confrontational. The Tribunal accepts that the Appellant is a man of passion, and strong feelings. With the benefit of hindsight, many of us regret words and phrases used “in the heat of the moment”.

However, clearly, it does behove a registered adviser to be properly respectful and temperate in his oral and written dealings with others in the course of the provision of immigration advice and services.

Clearly, a good deal of the language impugned by the Respondent is disrespectful and intemperate.

The Tribunal does not consider that this issue of “failings in the standards of professional conduct” can, in itself, be determinative of the appeal. This issue is material to fitness, rather than to competence. However, the Tribunal recognises that an adverse (to the Appellant) view of the relevant disrespectful and intemperate language can validly be taken, in terms of the fitness of the Appellant, and it does consider that the Respondent was entitled to take this issue into account in her overall consideration of the fitness and competence of the Appellant as a Level 3 adviser.

The Tribunal concludes that the findings of the Respondent in respect of the aforesaid complaints, and the established breaches of the Code comprised in these findings, are themselves of sufficient gravity to justify the Respondent in her view that the Appellant is not competent to provide immigration advice and services as a Level 3 adviser.

“A fortiori”, the Tribunal concludes that, cumulatively, its conclusions in respect of the issue of the complaints, and of the “protective” notices of appeal, and of the significant failings of the Appellant with regard to file maintenance and record keeping, and of those failings in professional standards of conduct identified above, fully justify the Decision of the Respondent to refuse the application for continued registration as an immigration adviser authorised to provide immigration advice and services at Level 3, and authorising him now to provide immigration advice and services at Level 1 only.

The Tribunal concludes that the Appellant has wholly failed to prove that the Respondent did not have good and sufficient reasons to thus amend the Level at which he is permitted to provide such services.

Having regard to the aforesaid conclusions, the Decision of the Tribunal is to dismiss this Appeal.

The Commissioner has a duty to ensure that registered advisers are fit and competent. Section 83(5) states that:

“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 –

(a)

Are fit and competent to do so;

...

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

The Commissioner may, in continuing an applicant’s registration, vary the registration so as to make it have limited effect (Schedule 6(3)(6) and 6(2)(2)).

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

In an appeal against a decision under Schedule 6, it is for the Appellant to show that the Commissioner’s decision was wrong.

By decision dated 24 December 2012, the Commissioner decided to grant the Appellant’s registration at Level 1, where the Appellant had previously been registered at Level 3. [5]

The decision took into account evidence from two sources:

It is submitted that the evidence demonstrates a number of breaches of the Commissioner’s Codes and Rules which collectively (as set out in the decision letter) mean that the Commissioner cannot be satisfied of either the competence or fitness of the Appellant to provide immigration advice and services above Level 1.

The failings fall broadly into three areas:

Maintaining complete and accurate records is a very important requirement imposed by the Codes and Rules. It covers the provision of written advice to clients and the recording of instructions taken and decisions made. The provision of a client care letter is specifically required by Code 33. Without a written record, an advisor will not be able to review or accurately recall the progress and detail of a case. In the event that another advisor has to take over the case, that advisor will not be able to pick up what has happened and what is required.

Furthermore, without written records, the purpose of the regulatory regime will be frustrated as the Commissioner will not be able to review the standard of advice given.

In the case of Mr Ebrahim, the evidence shows that not only were proper records not kept, but in many instances advice was not given at all. Notices of appeal were lodged without any proper discussion of their merits and without the informed consent (and at times, without any consent) of the client.

The evidence shows that Mr Ebrahim has a poor grasp of the law and procedures required to properly discharge his obligations as an advisor. This is particularly starkly exposed by the multitude of appeals made where there was no right of appeal at all, and the repeated instances in which inappropriate applications were made and judgments were misunderstood by the Appellant.

A common feature of many complaints is that they arise out circumstances in which Mr Ebrahim lodged an appeal where there was no right of appeal and where the initial application was unparticularised and unsupported by evidence. On review of the case papers, the Commissioner has identified significant and troubling further failings in recording advice and instructions. It appears from the papers (and is supported by Mr Ebrahim’s evidence to the Tribunal) that the Appellant frequently makes decisions on behalf of his clients in the absence of their instructions and without properly advising them on the merits and implications of those decisions.

A review of the correspondence sent by the Appellant shows that he is rude and aggressive towards clients, towards officials at the Home Office, and towards other professionals. Such behaviour is contrary to the Code and Rules. It is damaging to clients and undermines the trust that the regulatory regime is designed to promote. This consistent abusive and unprofessional conduct has led the Commissioner to conclude that that Appellant ought not to have contact with clients at Levels 2 and 3. These clients may have complex or difficult circumstances and are likely to be particularly vulnerable.

File reviews conducted during the 2010 audit raised concerns about the care with which applications were made by the Appellant and the compliance of the Applicant with the duty to maintain records.

In the case of Chhikaniya [47], letters written to the Home Office were in general terms only and did not reflect the client’s individual circumstances. They contained the same wording as was found on other supporting letters in the file. In addition, the client care letter was almost identical to others reviewed, stating all the same reasons why the client had a case to remain. This raises a concern that cases were conducted by rote, with no real consideration of the particular circumstances of each client.

It was unclear from the file what advice had been given to the client about the merits of their claim. The Appellant, when asked about this in cross examination, said that “just because matters were not in an attendance note, that does not mean that the client was not advised.” He accepted that “not everything was written down meticulously.” He accepted that, where there was no client care letter, the advice given to clients would not have been written down. He further accepted that client care letters were not on all files. The Appellant therefore accepts that the files were not maintained in accordance with the requirements of the Code and Rules.

Discussions between the auditors and the Appellant revealed that applications of little merit were made so that clients could avoid arrest and detention while their case was under consideration. In cross examination the Appellant accepted that this was part of the reason why such applications were made, but said that the auditors, when they came to the office, did not want to listen and only wanted to talk.

In the case of Singh [48], the covering letter did not make clear what the client’s leave situation was. The Appellant accepted that the cover letter was deficient, saying that “we forgot to tell the Home Office.” The auditor noted that client care letter was dated after the application form and was identical in all material respects to the others reviewed, given the same grounds for applying and the same documents to be provided.

In this case, following the refusal of the application, the Appellant sent the client a fax saying that a notice of appeal was going to be lodged and asking for a further £300. The Appellant in cross-examination accepted that there was no discussion with the client of the merits of the appeal and that it was the Appellant’s decision, rather than the client’s, to lodge the appeal. The client would not have known that there was no right of appeal against this decision, but Mr Ebrahim’s opinion was that it was appropriate to carry out the work without discussing it with the client and, furthermore, that it was appropriate to charge for the work. He stated that, “the client doesn’t need to pay.” This comment can be contrasted with the approach actually taken by the Appellant in C6345 (below at para 110).

It is not apparent from the records whether or not this £300 was paid by the client. However, during the course of the Tribunal hearing the Appellant did produce a further file relating to a Mr Asiedu. That file has some parallels with that of Mr Singh. It shows that the £300 was asked for prior to any meeting or discussion and that the £300 was paid when the client attended the office. Mr Ebrahim accepted that in the case of Asiedu the appeal was lodged without any prior discussion with the client and without the client’s instructions. In both Asiedu and Singh, there is no evidence in the files of any advice having been given regarding the appeal.

In Singh, the first tier immigration judge ruled that there was no appeal right and no grounds for appeal. Following this the Appellant faxed UKBA asking them to review the case – it is unclear whether there was any charge for this application for review, and there appears to be no basis for the request.

In relation to Asiedu, the file notes (distributed at the hearing) show that the decision to lodge an appeal was taken by Mr Ebrahim without consulting the client. The client was simply told to attend with £300. There appears to have been no discussion about the merits of an appeal and no advice given (and certainly none recorded) in relation to the appropriate steps to be taken.

The judgement itself makes plain that the wrong approach was taken (paragraph 2). It also casts serious doubt on the competence of Mr Ebrahim which caused the Immigration Judge to state that he would himself be making a complaint to the OISC (paragraph 11). In cross examination Mr Ebrahim stated that, despite what was said in the judgment, he did not accept that there was no right to appeal under the Immigration Rules. He accepted that there was no discussion with the client about whether to appeal. Indeed, the attendance of the client post-dated the lodging of the appeal and the only real record is that £300 was paid on that date.

The audit identified four issues in an Identified Issues Report (“IIR”) [51]. The first and fourth issue were in relation to file management and records. The auditors reported that the files reviewed had very few if any attendance notes and receipts for fees. This is exemplified by the files discussed above. Although the Appellant does not accept that there was a lack of fee records and attendance notes, he did agree in cross examination that there was often no record of the advice given to clients. The Appellant explained the findings of the audit by saying that the auditors did not in fact read the files. This allegation by the Appellant was denied by both Ms Davies and Ms Gilchrist.

The lack of attendance notes had been raised in previous audits. In addition, the auditors noted that the ability to complete a financial trail was made difficult due to the lack of receipts or invoices. These failings in maintaining proper records and in putting advice into writing were a breach of Code 7 and of Rule 16.

In addition to the concerns about file maintenance and record keeping, the IIR identifies two further issues in relation to Code 9 and Code 12.

The findings of the audit [51] were that there appeared to be little research done into the clients’ individual circumstances and the merits of their cases. Papers were drafted on the first day of meeting the client, although the meeting was rarely documented. It has already been noted that correspondence was very similar, if not identical, across the cases conducted by the Appellant. The concern is that matters were conducted on a pro-forma basis rather than being addressed to the client’s particular case. This concern is fortified by the suggestion from the Appellant that they had 20,000 cases between the two advisers, and the admission by the Appellant that the reason for poor record keeping was that there was insufficient time to carry out the necessary paperwork.

The auditors noted that the Appellant appeared to be making applications which had no chance of succeeding, and charging clients for the service. In his evidence in cross examination, the Appellant stated “Where the letter has said there is no right of appeal, I have advised that there is a right of appeal.” It appears to the Commissioner that, first, the Appellant does not fully understand the appeals process and, secondly, that clients are not properly informed about the merits of their cases. As a result clients were charged for applications which they did not understand and which had no prospect of success.

A further issue raised by the auditors [52] was that clients and third parties were frequently unable to make contact with the Appellant and that clients were not kept properly updated. In addition, clients were fearful of making enquiries with the advisers [52 and 46]. Mr Ebrahim explained this aspect in cross-examination, saying “Many clients are respectful, but some want to ask the same question every day. It gets irritating. If I get irritated, I get assertive. Many clients look down on women. I don’t like that. They get aggressive, police have to be called. It is mainly Afro-Caribbean clients and Arab clients. I prefer not to work with them, but I do.”

This response can be compared with complaint C6600 (below) where the client making the complaint was a vulnerable women who had been the victim of domestic violence.

A further audit was carried out on 28 February 2012 and an IRR was sent to the Appellant on 29 March 2012 [135].

The audit highlighted similar problems in relation to inadequacies in record keeping and the routine submission of unmeritorious cases. In respect of Codes 82, 85 and 86 (requirement 1) the auditors notes that files were not easy to locate and were not stored in an orderly fashion. The auditors also noted (requirement 3) that it was not possible to establish a clear financial trail from the receipts included on the files. These criticisms were not accepted by the Appellant, who stated in cross examination that the auditors did not read the files and that they were incompetent. He accepted that one file was “slightly misplaced” but denied that there was any problem with the storage or organisation of his files.

The other area highlighted again related to Code 9 – the requirement to act in the best interests of the client. The auditors noted that once again there were a number of cases in which the merits of the application were weak. Although files did contain attendance notes, those notes did not record any advice given on the merits of the case and there was no evidence that the clients were aware that the cases were weak. Mr Ebrahim accepted that advice was not documented in the files. He said that “It might be in the client care letter, which the cases sometimes do have but in many cases do not.” He stated that it was due to lack of time that attendance notes were not properly recorded, but accepted that this did not comply with the Code and Rules.

A meeting was held between Ms Davies, Ms Atcha and Mr Ebrahim on 14 May 2013. This was, in part, so that Ebrahim and Co could justify their practice of lodging what they termed “protective notices of appeal.” [140]

The Appellant has said on a number of occasions [eg 146] that he has in his possession many examples of the successful use of such notices, and that he would be able to obtain expert legal opinion to justify their use. None of this evidence has ever been produced by the Appellant. It is submitted that the one case he did produce during the course of the tribunal hearing does not in any way justify the routine making of such applications where no right of appeal exists.

On 7 June 2011 Peter Illing of UKBA lodged a complaint against the Appellant. The Appellant had made an application on behalf of a Mr Gomes which had been refused on 13 January 2010. The appeal was dismissed on 27 April 2010 and permission to appeal refused. The complaint was that the Appellant had then submitted a request for a review by UKBA which did not adduce any new material. The complainant noted that the request for a review rested on a fundamental error of law – the Secretary of State had no power to review in the absence of an error of law or the presence of new material not available to the tribunal [174].

The complaint was determined on 22 August 2011 [200]. The Commissioner found that breaches of five codes were substantiated. In addition, the Commissioner noted that the rude and offensive language used by Mr Ebrahim was not acceptable.

Code 11 requires the adviser to give clients a full explanation of the implications of their position and any proposed course of action. The advice and any instructions must be confirmed in writing. The Commissioner found that a breach of this Code had been substantiated.

When the file was initially submitted to the Commissioner for review, no attendance notes were found. The Appellant later supplied copies of attendance notes which he said had been “available on request.”

There was no mention in the notes of the client’s status while the appeal was pending; no mention of the merits of the client’s case; and no mention of the implications of losing. Any advice which was given was too late as the hearing was already imminent.

In addition, there was no evidence that any advice to Mr Gomes was confirmed in writing.

As a result, it is plain that Code 11 had been flagrantly breached in that (i) the client had not been properly informed and (ii) any advice that had been given to the client had not been confirmed in writing.

Code 18 requires an adviser to have the necessary skills, knowledge and competencies to meet their client’s needs, and to satisfy the Commissioner of this via the processes and systems approved by the Commissioner for this purpose. The Commissioner determined that a breach of this Code had been substantiated.

The Appellant had, in response to the statement of complaint, denied that any unmeritorious representations were made in the case of Gomes and asserted that the files would show this if read diligently. This attitude mirrors the evidence of the Appellant in other areas of the case, where he alleged that the auditors were incompetent. The Commissioner found that the files had been read diligently and there was nothing in them to counter the allegation in the complaint.

The Commissioner noted that there was no evidence that Mr Gomes’ partner had exercised a treaty right for 5 years; that the appeal was subsequently dismissed; and that the appeal to the Upper Tribunal was dismissed as it did not identify any error of law. The Commissioner further noted the comments of the Immigration Judge (in his decision of 14 May where leave to appeal was refused) that the grounds on which the Appellant sought leave to appeal were no more than a reiteration of his submissions at first instance and that there was no evidence supporting them, merely an assertion.

This shows that the Appellant has little understanding of what is required to advance an application and little understanding of the appeal process.

Notwithstanding this criticism by the Immigration Judge, the Appellant’s representations to the UKBA on 26 May suggested that the decision of 14 May supported a further review. This, the Commissioner found, suggested that the Appellant did not understand the appeal process; did not understand the significance of the Immigration Judge’s comments; and did not understand how properly to make further representations to the Home Office.

The Commissioner further found that the Appellant had little notion of the evidence needed to support the initial application and little notion of what was being applied for.

The Commissioner considered the abusive comments contained within the Appellant’s fax to the Home Office of 16 June 2011, concluding that they served as further evidence of a paucity of advocacy skills. The comments will be addressed in more detail below (72, 102, 125 and Appendix 3).

The finding of the Commission was that the Appellant lacked the necessary knowledge, skill and competencies to meet his clients’ needs.

Code 33 requires an adviser to write a client care letter prior to undertaking any substantive work. The required content of the letter is set out in the details of the Code (copied at page 2 of the determination letter).

The Appellant having admitted that no client care letter was written, the Commissioner found that a breach of Code 33 was substantiated

These codes require that an adviser must keep clear, orderly and accurate records of contacts, dealings with clients and dealings with third parties (code 81) and that in respect of each client, advisers must identify and record key information and dates and enter these on a file management system (code 84). The Commissioner determined that a breach of both of these codes was substantiated.

An analysis of the file notes showed that they were unclear and omitted much important information. Examples are set out on page 6 of the determination letter.

The determination of this complaint shows that the Appellant has failed to keep proper records of advice given and instructions received; has failed to explain to the client in a client care letter the instructions taken and advice given; has failed to demonstrate adequate skill and competence and has failed to keep proper records of contact with the client and key dates in the case.

On 8 June 2011 a complaint was lodged against the Appellant. The Appellant had made an application on behalf of a Mr and Mrs Sharma which had been refused on 3 May 2011. The refusal letter stated that there was no right of appeal. Nevertheless, the Appellant lodged an appeal on 6 May 2011. The appeal was struck out as invalid. [602]

The Complaint determination, dated 12 October, determined that the Appellant had breached Codes 33; 11; 81; 84; 4 and 9. [628]

As set out above, Code 33 requires an adviser to write a client care letter prior to undertaking any substantive work. The required content of the letter is set out in the details of the Code. [629]

The Appellant having again admitted that no client care letter was written, the Commissioner found that a breach of Code 33 was substantiated.

As set out above, these Codes address the requirement for an advisor to keep accurate records of attendances, advice given and instructions received.

The Appellant, in response to the statement of complaint, stated that the attendance notes would reflect full advice given to the client. However, on reviewing the file, the Commissioner found that the attendance notes failed to demonstrate a sufficient level of advice given to the clients, nor was there explanation of the potential implications of the application.

The Commissioner gave detailed examples of failings in this regard, and determined that breaches of Codes 11, 81 and 84 were substantiated. [631]

Code 4 requires that all advisers must satisfy the Commissioner that they are fit and competent to provide immigration advice or immigration services.

The Commissioner, in reviewing the file of Sharma, looked at the application for further leave to remain in which representations were made by the Appellant. The Commissioner also noted that the application was refused primarily due to a lack of supporting evidence, and that the refusal clearly stated that the decision did not carry a right of appeal.

In response to the statement of complaint, the Appellant sought to justify the practice of lodging what he termed “protective notices of appeal.” The Commission found that there were concerns that the Appellant did not understand the First Tier Tribunal appeal process. [632]

For the reasons summarised above (and set out in full in the decision letter) the Commissioner found that a breach of Code 4 was substantiated.

Code 9 requires an adviser to always act in a client’s best interests. In this case, the Appellant had refused to provide to UKBA the client’s contact details. Furthermore, once the client had requested their file to be transferred to new representatives, the manner in which the Appellant dealt with that transfer request demonstrated, in the Commissioner’s determination, that the Appellant was not acting in the best interests of the clients.

As a result, the Commissioner determined that a breach of Code 4 had been substantiated.

The determination of this complaint shows a repeat of the issues identified in the earlier case. The Appellant has again failed to keep proper records of advice given and instructions received. Again, a client care letter has not been produced and no good reason was advanced for the error. The Appellant again has failed to demonstrate adequate skill and competence in dealing with the application and appeal, making basic errors and showing a poor understanding of what is required.

On 30 January 2012 a complaint was lodged against the Appellant by Ms Karanja, a former client [1078]. In addition, a further complaint was lodged by Ms Karanja’s new solicitors [1082]. The two complaints were dealt with by the Commissioner under the same reference.

The Complaint was determined on 10 October 2012. The determination found that breaches of Codes 72, 81, 13(a), (b) and (d), 17, 18, 33, 11, 34 and Rule 6 were substantiated [1130].

The complainant had been dissatisfied with the standard of work done on behalf of Ms Karanja; the lack of client care and information given to Ms Karanja; the Appellant’s behaviour towards Ms Karanja; and the fact that Ms Karanja had been misled as to the professional status of Mr Ebrahim.

The Commissioner determined that Mr Ebrahim had falsely described himself as a lawyer, and thus found that a breach of Code 72 was substantiated.

The complainant’s case file was reviewed by the Commissioner. She found that the records did not detail any advice to the complainant, contrary to Code 81 which requires that advice given and actions agreed should be detailed. Code 81 requires the notes to be clear and accurate. Those notes that were kept would not be clear to anyone else reading them. The Commissioner therefore determined that a breach of Code 81 was substantiated.

An adviser at level 2 or above is required by the Commissioner’s Guidance on Competence to “deal sensitively with vulnerable or traumatised clients.”

The Appellant made a number of offensive, insulting and derogatory comments to and about his client. These are set out in the determination letter [1132 – 1133]. These comments were made in the full knowledge that Ms Karanja had been the victim of domestic abuse. The Commissioner found that the language and behaviour of the Appellant was unprofessional and unacceptable. She found that he had failed to demonstrate that he was fit to practice in respect of this requirement.

The Commissioner therefore determined that breaches of Codes 13(a) and (b) and 17 were substantiated.

The Commissioner noted that Ms Karanja’s case was complex. She further noted that in 12 months Mr Ebrahim had failed to progress her case in any meaningful way. At the date that Ms Karanja withdrew her instructions no application had been submitted that had been accepted by UKBA.

The Commissioner considered the knowledge and skill required of advisers and considered carefully the work submitted to the UKBA. She found that the representations of 7 April 2010 did not display the required level of skill or aptitude, but were instead unclear and ineffective. The Commissioner found that representations of 24 October 2010 were wholly inadequate and that in representations of 20 November 2010 Mr Ebrahim displayed no knowledge of the applicable laws or policies presented by Ms Karanja’s case. She found the representations to be neither cogent nor clear, and in fact erroneous. In further representations of 19 January 2011 Mr Ebrahim again made incorrect assertions and failed to display that he had sufficient knowledge of immigration law to identify possible immigration categories that might apply.

The Commissioner’s conclusion was that Mr Ebrahim had failed to display in his work for Ms Karanja that he had knowledge of UKBA’s practice in the consideration of cases. The Commissioner therefore found that breaches of Codes 17 and 18 were substantiated.

Mr Ebrahim admitted that there was no client care letter in this case. The Commissioner therefore found that a breach of Code 33 was substantiated.

The Commission considered the written evidence as to the information provided to Ms Karanja. The Commissioner found that there was no evidence in the file that anything was explained to the Client at all. Mr Ebrahim admitted that no communications or advice were put in writing to Ms Karanja [1141]. The Commissioner therefore found that a breach of Code 11 was substantiated.

The Commissioner also found that there was no evidence that Mr Karanja was informed of the true progress of her application [1142]. Neither was there evidence that she was informed of her options or the potential merits of the applications that were made. The Commissioner found that in addition to a breach of Code 11, a breach of Code 34 was substantiated.

There was no evidence on the file that Ms Karanja was informed about the costs of the applications to be made, and no evidence that the fee scale was shown to her. The Commissioner therefore found that a breach of Rule 6 was substantiated.

The Commission considered that the client had been given very little information or advice regarding the complexity of her situation and the various applications that could be made. She was not in any position to make an informed decision as to what steps to take.

This is a consistent feature of the way in which Mr Ebrahim practiced. In the cases of both Asiedu and Singh (above at paragraph 20) similar features arose. Mr Ebrahim accepted that in the case of Asiedu the appeal was lodged without any prior discussion with the client and without the client’s instructions. In both Asiedu and Singh, there is no evidence in the files of any advice having been given regarding the appeal.

The Commissioner concluded that to act in such a manner was not in the best interests of the client and so found that a breach of Code 13(b) was substantiated.

Mr Ebrahim misled the UKBA by omitting facts as to the nature of the Complainant’s relationship. The Commissioner therefore found that a breach of Code 13(d) was substantiated [1144].

This determination again shows repeated and consistent failings in keeping proper records – file notes were wholly inadequate. This is mirrored in the advice actually given to clients. It appears that clients were not properly informed as to the steps that were ostensibly being taken on their behalf and were not able to make proper decisions as to the conduct of their case. In addition, the steps that were in fact taken by the Appellant were inappropriate, showing a lack of understanding of immigration law and procedure.

As well as demonstrating significant failings in the conduct of the client’s affairs, the Appellant showed that he was not a fit and competent person as set out in the Commissioner’s guidelines, showing as he did contempt for the client and for fellow professionals.

A complaint was made on 6 June 2011 [684] by an officer of the UKBA. The complaint alleged that the Appellant had made representations to the Home Office to reconsider refusal with no new evidence. The Appellant relied on an AIT decision of 18/4/11 as if it was an allowed appeal, whereas it was in fact a decision to strike out an invalid appeal.

The Complaint was determined and the Appellant company notified by letter dated 7 March 2012 [705].

Once again, the Commissioner found that there was no client care letter, contrary to code 33 [707].

The Commissioner noted that the case file did not contain any notes of their contacts with the client. There was no record of instructions taken from the client, actions agreed with the client or advice given to the client. Attendance notes were subsequently provided. On inspection of the attendance notes the Commissioner determined that they failed to record a sufficient level of advice about the applications to be made or their implications. The Commission had further concerns, set out in the determination letter [707- 708] as to the way in which the appeal was submitted.

As a result of examining the file, the Commissioner determined that breaches of codes 11, 36 and 81 were substantiated.

As set out above, an adviser is required to act in the best interests of their client. The Commissioner noted that the application was refused due to a lack of supporting evidence. An appeal was lodged and a fee charged for so doing. In an attendance note dated 21 April 2011 was written “no valid appeal”. The note does not discuss the appeal and in particular does not discuss that there was no right of appeal.

The Commissioner considered that charging a client £300 for completing an appeal form, where there was no right of appeal, was not in the clients best interests. Therefore a breach of Code 9 was substantiated [709].

It should be noted that this behaviour was mirrored by Mr Ebrahim’s actions in relation to Asiedu, where there is a record of the receipt of £300. Mr Ebrahim accepted in cross-examination that he had not discussed with the client whether or not there should be an appeal and only met with the client after the appeal had been lodged. The documents produced by the Appellant during the hearing and copied for the Tribunal show that the client was simply told to attend the office and bring £300.

The Commissioner reviewed the competence of the actions taken by the Appellant [709 – 710] and concluded that the Appellant was not competent. She therefore found that a breach of Code 4 was substantiated.

The Commissioner noted the unprofessional conduct by Mr Ebrahim in his correspondence of 16.6.11, set out at page 694.

The same areas of concern arise in respect of this complaint as have been seen previously. The record keeping by the Appellant is woefully inadequate. Likewise it is plain that clients are not properly advised and are not consulted on the decisions to be made in their cases. The competence of the advice given is inadequate and it is apparent that the Appellant does not properly understand the law and procedures about which he is giving advice.

This was a complaint by an officer of the UKBA who alleged that Mr Ebrahim had, on 4 July 2011, refused to hand over a passport belonging to one of his clients who were to be removed from the UK. Mr Ebrahim was described by the Complainant as having been rude and aggressive. [1426]

In his response to the complaint, Mr Ebrahim described it as false and vexatious, and accused the officer of having a “Gestapo mentality” and of being bigoted [1430].

The Commissioner’s determination of the complaint was sent to the Appellant’s firm by letter dated 6 September 2012 [1456].

The Commissioner considered in some detail the circumstances surrounding Mr Ebrahim’s refusal to provide the passports to the Immigraiton officer and also his refusal to return the passports to the clients themselves [1457 – 1459]. The clients had been arrested and detained. It was their request that the passports be handed to the Immigration officer.

The first reason given by Mr Ebrahim was that there was an order from the Tribunal which was a “protective order” giving lawful stay until the Home Office or Tribunal had fully reviewed the matter. This was not correct. The Tribunal’s order stated that the Tribunal had no jurisdiction to consider the appeal and was to take no further action.

The second reason given by Mr Ebrahim was that it had no instructions to hand over the passports. A letter from the clients dated 11 July 2011 (after the date on which the Immigration Officer attended) sought the return of the passports from Mr Ebrahim. Also on the file was a letter of authority from Malik and Malik solicitors who sought the return of Mr Patel’s file as soon as possible.

Mr Ebrahim, in response to that letter, indicated to Malik and Malik that all the documents were available to be sent, but subject to payment of outstanding fees. Further correspondence and attendance by relatives of Mr Patel (who at this stage was in detention) sought the urgent return of the passports. Mr Ebrahim again wrote to Malik and Malik on 29 August 2011 saying that he would not return the passports without payment of the £250.

This approach should be contrasted with Mr Ebrahim’s evidence before the tribunal. Asked, in the context of an appeal in the absence of jurisdiction, whether he thought it appropriate to carry out work without the knowledge or consent of the client Mr Ebrahim said that the client “did not have to pay.” The exchange of correspondence in this case suggests that Mr Ebrahim was keen to recover all fees that had been charged, even to the extent of withholding a client’s file and passport while the client was in detention.

The determination found that Mr Ebrahim’s actions in not handing over the passport of 4 July did not constitute a breach of any Code or Rule as he did not have instructions to do so.

However, the attendance note of 11 July and subsequent correspondence engaged the duty to return the passport to the client without delay. The Commissioner found that Mr Ebrahim retained the passports in disregard of the urgency of Mr and Mrs Patel’s business and prejudiced their affairs [1461].

In respect of the request from Malik and Malik for the return of the documents, the Commissioner found that Mr Ebrahim had again breached his duty [1461].

For reasons set out in full in the determination letter [1461 – 1464] the Commissioner found that the Appellant, in refusing to return the passports, was in breach of Code 88 on 4 separate occasions. The Commissioner also found that the Appellant was in breach of code 13(b) on each of those occasions.

This determination shows that over a considerable period of time the Appellant improperly refused to return his client’s passport. This was because he believed the client owed him £250 for lodging what the appellant has termed a “protective notice of appeal”. As set out above, the lodging of such appeal, for which there is no jurisdiction, displays an ignorance of immigration law and practice. Also as set out above, the common practice of the Appellant was to lodge such appeals in the absence of instructions from the client and without advising the client on the merits.

The effect in this case was that the client, who wanted to return to India, was detained for a period of several months. The implications were severe. Code 89 requires that, in the case of a client who is in detention, the relevant documents must be forwarded no later than 3 days after the receipt of the request. Either in ignorance or in defiance of this requirement, the Appellant repeatedly refused to return the passports.

It is submitted that this is a serious and inexcusable lapse in standards by the Appellant. It shows a complete disregard for the interests of his client. The first reason given by Mr Ebrahim for refusing to return the documents shows a serious lack of competence and understanding of the immigration rules and law. It is of note that the financial dispute arises out of the lodging of this hopelessly misconceived appeal.

A complaint was lodged by Ms Hussain (a former client of the Appellant) and Lawise Solicitors (her new representatives). Ms Hussain had complained about the quality of advice given and alleged that Ebrahim and Co had failed to return her original documents. Both complainants alleged that the Appellant’s responses contained racist remarks.

In determining the complaint, the Commissioner found that Ebrahim and Co breached Code 11, 13(a), 13(d), 17, 20, 30, 84 and 88 [1005].

In short, for the reasons set out in the determination letter [1006 – 1009], the Commissioner found that Ebrahim and Co had breached Code 88 in respect of documents that it had sent to the Home Office without Ms Hussain’s instruction. The Commissioner also determined that Ebrahim and Co had knowingly misled Ms Hussain (in breach of Code 13(d)) when suggesting that all her original documents were available for collection, whereas in fact documents had been sent to the home office without her instruction.

The Commissioner determined that Ebrahim and Co did not have appropriate knowledge of the relevant procedures in that they submitted the incorrect fee for Ms Hussain’s 2009 application [1011], resulting in the application being returned. As a result, the Commissioner found that Ebrahim and Co were in breach of Code 17.

The Commissioner determined that there were four further breaches (code 11, 20 (negligence), 20 (recklessness) and 84) in respect of the advice and services provided to Ms Hussain [1012 – 1014].

The Appellant’s practice of lodging appeals where there were no ground and no rights of appeal was considered in this complaint. The advice of an expert immigration lawyer was sought. The Commission concluded that the practice had no justifiable basis in law, and that it demonstrated a mistaken knowledge of appeals procedure and UKBA practices [1015 and 1026 - 1037]. Such knowledge is a requirement of those practising at level 2 or 3 under the guidelines on competence. As a result, the Commissioner found that Ebrahim and Co breached Code 17.

The Commissioner reviewed the correspondence from the Appellant in the context of this complaint [1015 – 1024]. Further details are set out in Appendix 3. The Commissioner found that there were numerous breaches of Code 13(a) and a breach of Code 30, and noted that such behaviour gave cause to consider whether Mr Ebrahim was fit to provide immigration services.

The determination of this complaint demonstrates failings under three broad categories. First, the Appellant has failed to comply with his duty to return the client’s documents. In this instance, the Commissioner determined that the Appellant deliberately misled his client in respect of the return of those documents.

Secondly, the competence of the Appellant, in particular with regard to his knowledge of the law and process relating to appeals, was found to be below that required for an immigration adviser

Thirdly, the Appellant has again displayed a lack of courtesy towards other professionals and a lack of consideration towards his client.

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 vital that advisers are competent and that clients are fully informed.

The purpose of regulation is to ensure that advisers are competent and to build confidence in the regulatory scheme. Where a person enters a regulated profession, it is for him to show that he fulfils the requirements of the scheme and that he is able to conduct the work to the required standard.

It is submitted that that the Appellant has not shown that he is fit and competent to provide immigration advice and services above Level 1. The Commissioner therefore had good and sufficient reasons to amend the Level at which he is permitted to provide such services.

show due respect, politeness and courtesy to their client, the Asylum and Immigration Tribunal and the Commissioner;

act objectively and fairly with respect to the client;

be prepared to provide – e.g. to a member of staff of the Asylum and Immigration Tribunal, immigration judge or government immigration and nationality staff, including those at posts abroad – identification and confirmation of their authorisation by the OISC to provide immigration advice or immigration services under the Act at the authorised level;

not knowingly, recklessly or negligently mislead those mentioned at (a) to (c)

not seek to abuse any procedure operating in the UK in connection with immigration or asylum, including any appellate or other judicial procedure; and

not advise any person to do something which would amount to such abuse.

details of the services and the individual adviser’s responsibilities as agreed with the client. These details must make clear what instructions

all terms and conditions of engagement, including that the OISC may examine the file;

confirmation of the costs estimated or agreed;

information regarding any additional costs likely to be incurred or for which the client may become liable (e.g. disbursements);

details of the person dealing with the case, including their location and telephone contact number; and

details of the adviser’s complaint-handling procedures.

Chronology of key events and documents

Chronology and content of unprofessional written representations by Mr Altaf Ebrahim