IMMIGRATION AND ASYLUM ACT 1999
THE IMMIGRATION SERVICES TRIBUNAL
APPEAL NUMBER: IMS/2006/5/RCR
Between:
Ebenezer Olusola t/a Faith4 & Co. Immigration
And Welfare Advisory Services
Appellant
And
OFFICE OF THE IMMIGRATION SERVICES COMMISSIONER
Respondent
Before:
Mr. B. Kennedy QC (Chair)
Dr. A. Montgomery
Mr. Martin Hoare
Sitting at Procession House, 55 Ludgate Hill, London EC4M 7JW
Appearances:
For the Appellant: Mr. S. Mahmood, of Counsel.
For the Respondent: Ms. M. Neminathan, Solicitor.
Hearing Dates:
20th & 21st July 2006
Sent to Parties
7th August 2006
Decision and Reasons
Background:
The Immigration and Asylum Act 1999 (Part V) sets out the means of establishment of a scheme to regulate immigration advisers and service providers. Under the scheme, the provision of immigration advice or immigration services will be prohibited unless a person is registered with the Office of Immigration Services Commissioner (“the Respondent”), authorised to practice by a designated professional body or exempt under the terms of the scheme or Act. The Respondent has a duty to ensure that those who provide immigration advice or immigration services are competent to do so and the Respondent has power to register or refuse to register applicants at various levels of competence to provide immigration advice or services.
Ebenezer Olusola, (“the Appellant”) herein was granted registration by the Respondent at Level 1 in June 2003. The Appellant applied for continued registration at Level 2 in May 2004. The Respondent carried out an audit of the Appellants work on the 29th July 2004 and found the Appellant to be working beyond level 1. The Respondent warned the Appellant of their findings verbally and in writing on the 3rd September 2004 in an Identified Issues Report. The Appellant then wrote to the Respondent on the 27th September 2004 confirming that he had read and understood the types of work permitted at level 1 and further confirmed that he would no longer provide advice and assistance beyond his level of registration, in this case Level 1.
In a further letter from the Respondent to the Appellant dated 6th April 2005, the Appellant was clearly warned of the consequences of failing to comply with Code 55 of the Respondents Code of Standards.
The Respondent carried out a second audit of the Appellants work on the 1st July 2005 and again the Respondent found that the Appellant was working beyond his level of registration. Again, the issues were raised by the respondent with the Appellant verbally at the end of the audit and in writing on the 5th September 2005 in an Identified Issues Report.
In a decision (“the decision”) by the Respondent on the 7th April 2006, the Appellant was refused his application for Continued Registration.
The Appellant has lodged an appeal of the decision by way of Notice of Appeal dated the 27th April 2006 as a result of which this appeal has been brought to hearing. The appellant sought to suspend the decision pending this appeal and that application was refused on the 2nd May 2006.
This Tribunal had been presented with a trial bundle, “bundle”, from the Appellant which was indexed and paginated and shall refer to the relevant page numbers where appropriate. Additional documentation was admitted with the consent of the parties. This tribunal also had the benefit of helpful Skeleton Arguments presented by the representatives for both parties at the end of the evidence.
THE ISSUES:
Essentially the Respondent takes issue with the interpretation of a number of cases considered by the Respondent in their audits. The appellant maintains that in the three cases of Smith, Olagunji and Oswaldo, (“the three cases”), considered in the second audit he was in fact acting only for the main applicant who was an EEC national and not their dependent partner. The appellant accepts that no work could be carried out by him at Level 1, inter-alia on Asylum, Illegal Immigrants or Overstayers but maintains that he was not advising or acting for the dependents in these three cases where these were the issues.
The Tribunal has referred to the Respondents “Guidance on Competence”
Particularly pages 8 & 9. “Guidance” stresses the basic nature of work
permitted and also confirms that applications “that are within the Immigration
Rules” are permitted. Elsewhere it states “an adviser at Level 1 must establish
whether the client already has a more qualified legal representative. Where
this is so, the Level 1 adviser must check with that adviser before carrying out
any work and copy relevant information to that adviser.
There is a specific section dealing with EU and EEA Immigration Law. Work
permitted in this section includes:
residence permit for an EU/EEA national
family permit for a non – EU/EEA family member
It is to be noted specifically in the case of Olugunji, the attendance sheet at
Page 197 of the Bundle makes it clear that this gentleman is an illegal entrant.
At pages 198 – 199 it is clear that his partner is a lady holding indefinite leave
to remain as a Nigerian citizen and not a citizen of the EU at all. The
attendance note further makes it clear that the advice is to the gentleman and
not to his wife and that the course of action is an application to the Home
Office and the payment of the Home Office fee of £155. Notwithstanding the
lack of clarity elsewhere in the attendance note, it is sufficiently clear that the
intended application is to obtain permission to stay for an illegal entrant on the
basis of marriage/relationship with a settled person.
The Guidance makes it clear that work is not permitted in applications that are
not within the Immigration Rules and further states that no work on illegal
entrants, overstayers, removal or deportation from the UK is permitted at
Level 1. Given that the person who is making the application is an illegal
entrant, he cannot make an application within the Rules, he can of course
make an application on human rights or Home Office policy grounds, but
these, as we understand it, are not within the Rules and therefore not permitted
at Level 1.
The other two cases involved applications under Regulation (EEC) 1612/68 of
the Council Article 10. Whilst this is not within the terms of the domestic
immigration rules, we accept work of this nature is not specifically excluded.
However it is noted that the essence of such permitted work in this category is
“basic”.
In relation to the Appellants argument that the work was really for EU people
who had non-EU illegal entrant partners, and that the client was the EU
citizen the following is noted:
In the case of Cesar, at page 208 of the bundle and also in the supplementary bundle disclosed by the Appellant, the EU citizen of course does not need a residence permit to remain in the UK. If such a person wanted a residence permit he/she would not have to include dependants in that application. The application form (Form EEC1) states at Section 7 “for yourself and any of your dependants fro whom the residence permit or residence document is required, you should enclose (and a list of items is then given).” In this particular case the non-EU resident, namely Esosa Osama, is included in the application form. Furthermore the attendance summary sheet makes it clear that the client is Esosa – a Nigerian lady who came to the UK as a visitor in 1990 and further that the advice given was that the lady was an overstayer. The representation to the Home Office of 19th January 2005 referred to Esosa as the client and the husband (Cesar) as simply the spouse. Accordingly it seems the documentation from the Appellant shows that the position presented to the Home Office is not the same as the position presented to this Tribunal. In fact the documentation also shows that as a result of the representations, permission was given to the non-European citizen.
In the case of Smith, the Tribunal did not benefit from any additional disclosure from the Appellant. Nevertheless the agreed bundle shows that advice was given both to the EU citizen and the non EU citizen. Again, at page 196 of the bundle, the attendance note indicates that the non-European citizen came to the UK on the 21st November 2003 as a visitor but then later applied for asylum with a solicitor involved. There is no evidence that any reference is made to that solicitor nor has the Appellant made the case that any such reference was made.
Therefore there is evidence in all three cases referred to at Paragraph 7 above, that advice was given directly to a non European Union citizen by the appellant and in these cases there as an application outside the of the Immigration Rules. Further it seems that two of these cases have involved an element of asylum, overstaying or illegal entry.
This Tribunal is of the view that it would have been important to check if the previous advisers had been involved. In deed the Appellant was on Notice that in one case a solicitor had been involved. Not checking, it seems, was a breach of the Respondents code. The importance of checking must be underlined. In such matters a pervious history will have been given to the Home Office in the context of the other application. This could well have a bearing on the cogency of the information with regard to the marriage application.
We feel it should also be noted that the EU citizens did not need residence permits to stay in the UK. It would seem therefore that the intended beneficiary of the advice for the Appellant was the illegal entrant.
The Appellant also argues that he did not give advice in a case involving a person known as Shawn Levy but accepts that if he had done so, as alleged, then he would have been acting outside his level of competence. The Appellant denies any knowledge of the existence of a letter dated the 21st July 2005 to the Chief Immigration Officer on behalf of Shawn Levy. The appellant maintains this letter is a forgery and did not emanate from his office, was not signed by him (the appellant) and he further denies any knowledge of the person known as Shawn Levy.
THE ORAL EVIDENCE:
The first witness was EO, the Appellant, who adopted his statement of the 13th June 2006 at page 10 of the bundle. In relation to the three cases he indicated that he had advised only on residency for Spouses or unmarried partners and that this was permitted under Level 1 to which he had been registered. He acknowledged that the main clients’ partner in each case had issues outside his level of competence but maintained he had not advised them.
EO then gave evidence relating to a letter from his office at page 189 of the bundle. He confirmed it was his letter head but indicated that it was not a genuine letter of his and the signature was not his. This letter purportedly from EO was written to the Chief Immigration Officer about a person known as Shawn Levy on the 21st July 2005 seeking a review and release of Mr. Levy who had been arrested by the Immigration Service. EO maintains that he never saw the letter in question until the papers sent by the Respondent for this hearing arrived with him, in or about July 2006.
EO accepted the findings of the 1st audit of the 29th July 2004 and that he was then acting outside his level of competence. He also accepted that if he had been acting for Shawn Levy as suggested by the letter of the 21st July 2005, then he would have been acting outside his level of competence.
EO indicated that at the time he had accepted instructions form Olagunji he had not been aware that Olagunji was an illegal immigrant.
The second witness was CM, the case worker employed by the Respondent. She adopted her witness statement dated 28th June 2006 at pages 52 to 65 of the bundle. CM gave detailed evidence of the two audits she had personally carried out. Specifically she referred to the three cases under consideration at the time of the second audit. The first being the Olagunju case where she maintains the case involved inter-alia an illegal immigrant. The second case of Smith was a case involving inter-alia asylum issues. The third case Oswaldo involved inter-alia an overstayer. In relation to the three cases CM stated that she went through the cases under consideration with the Appellant, explaining that he had been working above his level. She stated that at no time did the appellant suggest or explain to her that he was acting for the sponsor only.
CM indicated that although the Respondents had come across the letter of 21st July 2005 (purporting to be from the Appellant to Immigrations Services) from inquiries with the Immigration Office, her Director did not think there was any need to disclose it to the Appellant or to seek clarification from him on it.
CM under cross examination clearly indicated her view that the Appellant should have referred the three cases under discussion to an adviser with a higher level of competence.
DECISION:
This tribunal unanimously finds that despite warnings given and acknowledged after the first audit on the 29th July 2004 the Appellant continued to give advice and offer services above his level of competence. We also find that the Appellant failed to give adequate client care. We find that the Respondent is correct in finding the Appellant was in breach of the Respondents Code 52 and 55. Accordingly we dismiss this appeal.
REASONS:
We find that on the balance of probabilities the letter of the 21st July 2005 relating to the person known as Shawn Levy was written by or on behalf of the Appellant and accordingly confirms that he was acting outside his level of competence. Having said that we find that it was wrong of the Respondent not to disclose this letter earlier and seek an explanation from the Appellant. Mutual disclosure is an important prerequisite to any assessment of fitness in any determination or decision by the Respondent.
This tribunal finds further that the Appellant acted outside his level of competence in the three cases referred to above.
Specifically we find the Appellant advised on an application outside the Immigration Rules in the case of Olagunju.
In the cases of Smith and Esosa Osama/ Cesar, we find the Appellant undertook non-basic advice work in a European Union Law context and failed to check in the Esosa Osama/Cesar case whether a previous adviser had been involved. In the case of Smith, where he was on Notice that a previous adviser had been involved, the Appellant did not refer to that adviser.
Notwithstanding the argument that the non-European Union people were not his clients, we find this is not born out by the Appellants’ attendance notes or where we have seen representations to the Home Office, in those representations.
It seems to us that European Residents do not need permits to remain in the UK. Further it seems that the clear intention in at least two of these applications was to secure rights of residence for non-European citizens who had problems with the legality of their stay in the UK.
The Respondent sets out the argument for the breach of Code 52 at paragraphs 26 & 27 on page 86 of the bundle. It seems that the Appellant has not sought to rebut this argument. We accept the Respondents argument on this point.
Accordingly we find breaches of the Respondents Code at 52 and 55 have occurred.
EO indicated in his oral evidence that at the time he had accepted instructions form Olagunju he had not been aware that he was an illegal immigrant. This is apparently contradicted by his written notes at the time of taking instructions (see page 197 of the bundle) and we feel significantly undermines the Appellants credibility.
This tribunal found the Appellant to be an unreliable witness and preferred the evidence of CM the caseworker involved in this case. CM was an experienced and diligent caseworker. She presented as a thorough individual who had given every opportunity to the Respondent to put his business in order and she had patiently and fairly presented her case throughout to the Appellant and to this tribunal.
B. Kennedy QC
