Muzaffar Law Associates v Office of the Immigration Services Commissioner

Background.

Muzaffar Iqbal trading as Muzaffar Law Associates, the appellant, applied for continued registration on 9^th May 2007. The appellant sought level 3 registrations in all areas of work.

By decision dated 26^th October 2007, the Immigration Services Commissioner, the respondent, registered the appellant at level 2 in 4 areas of work and level 1 in the fifth area of work.

By notice of appeal received on 22 November 2007, the appellant appealed against the respondent’s decision to refuse registration at level 3.

The appeal was fixed for hearing at Procession house, London on 19^th and 20^th March 2008. In the event, it was concluded on the 19^th March 2008.

The Hearing.

The appellant appeared and represented himself.

The respondent was represented by Geoff Temme.

The respondent objected to any reference being made to recent AIT decisions provided to the tribunal by the appellant that post-dated the decision under appeal. The Tribunal agreed to ignore those later decisions, as they were not available when the respondent made her decision.

The appellant objected to the use by the respondent of a witness statement served on him dated 26^th February 2008. The respondent said that the appellant was in breach of Rule 17, as he had had no notice of the names of witnesses to be relied upon by the respondent. It appeared that the appellant sent a letter to the Tribunal dated 3^rd January 2008 containing their bundle of documents, name of witness and list of documents not relied upon. During the hearing, the Tribunal was told that only the bundle of documents was sent to the appellant and so it appeared that The Tribunal was at fault and in breach of rule 17(3). Later, during the lunch adjournment, the tribunal staff indicated that the bundle of documents was sent with the Rule 18 list and the name of the witness to the appellant.

The appellant agreed that he had received the witness statement and had had time to consider it. He agreed that he suffered no disadvantage in these circumstances.

The appellant opened his case and referred to his Skeleton Arguments, [appellant’s bundle pages 2-10]. He then gave evidence and was cross-examined at length and in detail.

It was clear that a central issue was the quality of the answers given by the appellant in his level 3 assessment that took place on 25^th July 2007.

He was taken through his answers to the level 3 assessment test. [respondent’s bundle pages 147-154; answers, respondent’s bundle pages 155–159].

He agreed that a central issue was the need to show the subsistence of the marriage in the assessment scenario presented. He said that his answer to Q4, [respondent’s bundle page 157], showed that he had raised all relevant grounds. He said that the limited leave was evidence that the marriage was subsisting. When asked why he had not included the reasons why the available documents did not support residence by the parties to the marriage, he said that his grounds obviously included an explanation why the documents did not support the claim. When asked why he had included the allegations set out in his paragraph d) [respondent’s bundle page 158] he said that he hoped that the client would obtain documents to support such arguments and it was his practice to include grounds in the hope that evidence in support would appear later. When asked why he said the husband’s mother was sick and resided with the client he first referred to the Attendance Note, [respondent’s bundle page 149]. When reminded that there was no reference to the husband's mother only to the husband’s father and the client’s mother, he first said it was mistake and later said that he had asked the client to obtain information about the husband’s mother. When asked why he said that it would not be possible for the husband ‘to find suitable job and settle in Philippine’ and that ‘there would be language barriers as well’, [respondent’s bundle page 158], and was reminded that the scenario said the husband was a British citizen of Filipino origin, [respondent’s bundle page 147]; he had no satisfactory answer.

When asked why there appeared to be no reference in the grounds to the lack of service of the Home Office letter dated 31 August 2001, he said that it was covered by grounds f) and g) respondent’s bundle page 158.

He also said that any further or more detailed grounds could be added into skeleton arguments delivered before the hearing.

When asked why he referred to exceptional circumstances in relation to Huang and Razgar d) and e) respondent’s bundle page 158 he appeared to be unaware that the House of Lords had altered the position in March 2007. He also appeared unaware of the binding nature of a House of Lords decision, stating that it is ‘for the tribunal to decide whether to rely on it or not’

He maintained that his answer was a proper and sufficient answer to the assessment questions.

When asked about the AIT decisions in the respondent’s bundle, he said that he had drafted the grounds on appeal in each case.

A statement by Witness C had been served. The appellant agreed its contents and asked no questions of the witness.

The respondent then called the caseworker. His statement was adopted in chief. He was cross-examined in detail by the appellant.

The case worker agreed that the appellant’s Competence Statements showed skill and knowledge. He said that the listed asylum appeals did not demonstrate relevant experience. He agreed that it was the level 3 assessment answers that led to the decision to register at only level 2. He maintained that the decision was correct.

He told us that the questions and model answers were set by outside qualified persons who were independent of the Commissioner.

He explained that a caseworker marked answers given using model answers. He said that the marks given totalled 19.5 out of 39, which is a 50% score. He said that such marks represented a failure. He said that over 80% would normally represent a pass.

He said that where the total marks resulted in a score of between 60 and 80% that was the area where an assessment may count as failure. He told us that such a marking led first to a re marking by a caseworker of equal experience, normally one of the team. He was in a team of 6 and each could be called upon to check the marking of a colleague. Once such had taken place, then if the decision was still to restrict or refuse, the decision would be checked by a caseworker manager. It would then be checked by a member of the legal team and then by a senior manager. The decision under appeal had been checked in this way all the way up to the top. His decision had been confirmed by all.

When shown the original model answer Sheet, [respondent’s bundle pages 153 and 154], he said that the figures on the sheet in pencil included both his own marks and marks assigned by others. He said that those with a ‘tc’ were made by a lawyer.

When asked if what he had seen and heard during the appeal changed his view of the appellant, he said that it did not.

The respondent then argued that the decision was fair and correct and asked for the appeal to be dismissed.

The appellant argued that the decision was unfair. He said that the marking of his level 3 assessment, [respondent’s bundle pages 153/4], added up to 20.5 or 22.5 which equalled 60% and the decision was harsh. He took us through his answer and argued that it was sufficient and correct. He said that to prevent him acting at level 3 was unfair.

At the end of the hearing, we told the parties that we would retire and discuss the evidence and arguments. We said that if we could tell them our decision by 3.30 pm we would do so but that our reasons would take time to prepare and would be delivered in the future.

We returned at 3.30pm and told the parties that the appeal was dismissed and our reasons would be delivered at a later date.

Decision.

The appeal is dismissed.

Reasons.

Persons who provide immigration services or advice such as the appellant must apply for registration or continued registration to the respondent. If the respondent considers such a person to be competent and otherwise fit to provide immigration advice and immigration services, the respondent must register such person.

The respondent’s Code 18 states that an adviser must have and continue to have the necessary skills, knowledge and competencies to meet the client’s needs, and must satisfy the Commissioner of this via the processes and systems approved by the commissioner for this purpose.

The respondent considered all information provided by the appellant. The respondent arranged for the appellant to take a level 3 written competence assessment on 25^th July 2007. The appellant took such assessment, [respondent’s bundle pages 147-154]. The appellant’s answers are at respondent’s bundle pages 155-159.

The respondent provided feedback on the appellant’s answers with letter dated 25^th October 2007, [respondent’s bundle pages 194].

The answers show that the appellant failed to demonstrate competence at level 3 as sought.

The respondent’s decision to restrict the appellant to level 2 was based mainly on the level 3 assessment and the appellant’s answers.

The answers omitted any reference to the lack of service of the home office letter dated 31 August 2001. This removed half of the client wife’s case.

The answers also showed that the appellant not only was prepared to include arguments unsupported by any information from the client but also omitted explanations why the client lacked documents supporting her case that she had lived with her husband.

When asked to clarify his reasons for including arguments in his grounds of appeal that were unsupported by documents or instructions from the client, his answers that he did so in the hope evidence may arrive later did not impress us. It was also at odds with his answer, when questioned why arguments were not in his grounds of appeal, that matters could be added later in Skeleton Arguments.

The reference to exceptional circumstances showed that he had not appreciated that the House of Lords had changed the Law in March 2007 nor that a House of Lords decision was binding on lower courts and tribunals.

Perusal of the AIT decisions in the respondent’s bundle showed remarks giving rise to concern such as those at page 66 paragraph 16; those at page 96 paragraph 29 which refers back to bundle page 90, paragraph 4 and page 92, paragraph (viii); those at paragraph 48, page 113; those at page 162, paragraph 2. The appellant told us that he had drafted the grounds of appeal criticised but told us that the appeal was successful. These tend to confirm our impression that the appellant does not master the detail of his client’s case and presents a wide variety of arguments whether relevant and supported by evidence or not.

On all that we have heard and read, we have no doubt that the appellant failed to perform as required in the level 3 assessment of 25^th July 2007 and that the respondent’s decision that he was not fit to be registered at level 3 was correct.

Seddon Cripps

9^th April 2008 His Honour Judge Cripps.