League for Human Rights v Office of the Immigration Services Commissioner

Having due regard to all of the evidence and submissions, the decision of the Tribunal is to dismiss this Appeal.

Reasons

The evidence identified four matters of substance.

Firstly, an audit of the Appellant conducted on behalf of the Respondent by Mr Perera on 13^th July 2004.

Secondly, assessments of Level 1 competence, electronically performed “online”, through the medium of the “Internet”, by Mr Kanu on 2^nd June 2005 and by Mr Martin on 21^st June 2005.

Thirdly, an audit of the Appellant conducted on behalf of the Respondent by Ms Woods on 10^th October 2005.

Fourthly, written competence assessments, in respect of Levels 2 and 3, administered to and undertaken by Mr Kanu and Mr Martin, in the course of the aforesaid audit on 10^th October 2005.

In respect of the audit in July 2004, it is clear that matters of concern were raised in respect of the Appellant’s accounting system and keeping of records. Mr Kanu acknowledged those concerns, and also the need to regulate the part played in the League of Human Rights by Mr Martin, in a letter to Mr Perera dated 6^th August 2004.

In respect of the assessments of Level 1 competence, in a test comprising 40 questions, Mr Kanu answered 17 questions correctly and 13 questions incorrectly. The tribunal did not have before it the detailed results of Mr Martin’s assessment, but it is clear, from a document comprising a “caseworker’s comments on performance” which was before the Tribunal, that Mr Martin also answered a significant number of questions incorrectly.

Those performances, which the Tribunal finds were less than satisfactory, resulted in several communications from the Respondent to the Appellant about the need for further training and study in respect of Level 1 competence.

A further audit of the Appellant was due to take place in September 2005. This audit was to be conducted in the context of the Appellant’s application for continued registration, and ultimately took place, conducted by Ms Woods, on 10^th October 2005 as aforesaid.

The Tribunal finds that, by the time the audit of October 2005 was conducted, it should have been clearly present to the mind of the Appellant (in effect to the minds of Mr Kanu and Mr Martin), that matters of accounting, record-keeping, the role of Mr Martin, and also of competence, required to be addressed by the Appellant.

The audit of October 2005 revealed firstly that the part played by Mr Martin in the League for Human Rights had not been regulated so as to abate the concerns raised in the audit of July 2004, and recognised by Mr Kanu in his letter of 6^th August 2004. Mr Martin continued to work, and to keep all his files, at home, a situation which the Tribunal finds was inherently unsatisfactory in terms of the Appellant’s administrative competence (though the Tribunal makes no finding in respect of the Respondent’s concern about insurance).

Secondly, the audit revealed a number of deficiencies in respect of the accounting system, file management system and record-keeping of the Appellant.

The Tribunal recognises that the audit system involves a random selection of files, and notes that in this case Ms Woods selected 4 out of 68 files of Mr Kanu, and 6 out of 10 or 12 files brought by Mr Martin from his home to the Appellant’s office. Nevertheless, whilst disapproving, as being potentially misleading, the use of the word “many” by Ms Woods in her description of the number of files which disclosed deficiencies, the Tribunal accepts that as a matter of fact the aforesaid deficiencies did exist in a number of the examined files, and that their existence was a valid matter of concern for the Respondent.

In two of Mr Kanu’s files, and three of Mr Martin’s files, the audit purported to reveal significant deficiencies in the advice given to clients. As aforesaid, Mr Martin played no part in the hearing of this Appeal. The focus of much of the evidence in the Appeal was the competence of Mr Kanu. His file relating to Sonoj Chipalu, one of those files examined in the audit and said to give cause for concern, was made available to the Tribunal and was carefully examined. The Tribunal’s detailed analysis of this file is appended to this Decision.

The Tribunal did have the opportunity to examine other files of Mr Kanu which he placed before the Tribunal, at its invitation, on the second day of hearing, and the Tribunal does recognise that Mr Kanu has done work of merit in the field of immigration advice, particularly in his appearances before tribunals.

Nevertheless, the Tribunal finds that in the file of Chipalu, and in a second file of Mr Kanu, that of Hinds, and in three files of Mr Martin, those of Parry, Stewart and Watson, there were significant deficiencies, and matters of valid concern for the Respondent in the context of the competence of the Appellant.

In addition to the aforesaid examination of files, the audit of October 2005 comprised written competence assessments, in respect of Levels 2 and 3, administered to and undertaken, in the form of written answers to specific questions, by Mr Kanu and Mr Martin.

The Tribunal was initially concerned about the status of these assessments, and heard detailed evidence from Mr Perera, and submissions from Mr Mably, in respect of the policy and procedures of the Respondent in respect of this assessment system.

The Tribunal is ultimately satisfied that this assessment system has been properly implemented, is properly administered, and does form a valid part of the audit process designed to test and assess those submitted to it.

There were before the Tribunal the material questions, answers, comments about, and assessments of, performance relating to the aforesaid competence assessments of Mr Kanu and Mr Martin.

The Tribunal has examined carefully all of the relevant material, and has concluded, as did the Respondent, that Mr Kanu and Mr Martin failed to demonstrate their competence at Levels 2 and 3 on the basis of those assessments.

Insofar as Mr Kanu, during the course of the hearing, sought to distance himself and the affairs and competence of the Appellant from Mr Martin, the Tribunal wishes to make it clear that the Tribunal finds that at all material times, that is the period of time with which the Tribunal is concerned for the purpose of determining this appeal, the Appellant consisted, as it were, of both Mr Kanu and Mr Martin, and the Tribunal has accordingly considered the evidence relating both to Mr Kanu and to Mr Martin.

The factual situation in respect of Mr Martin, his retirement, and the end of his association with the Appellant, will no doubt be the subject of consideration by the Respondent in the course of the next audit of the Appellant. However, facts and matters which have occurred after the decision of the Respondent which is the subject of this Appeal are not facts and matters which validly fall for the consideration of this Tribunal.

In that context, the Tribunal notes that the Respondent was entitled to have regard to the determination of Complaint C2026, in September 2005, a complaint made in respect of Mr Martin. In the event, and having regard to the purported withdrawal of “his” appeal by Mr Martin, and having regard to its conclusions in respect of all of the other evidence and material before it, the Tribunal did not find it necessary to examine in detail the circumstances of Complaint C2026.

The Tribunal reiterates that it has considered carefully all of the evidence and material placed before it, including the very detailed written submissions of Mr Kanu dated 11^th January 2006, and Mr Kanu’s oral evidence and able submissions during the course of the hearing of the Appeal. The Tribunal wishes to state that its determination does not comprise any adverse conclusion as to Mr Kanu’s credibility or integrity. Indeed, as aforesaid, the Tribunal considers that Mr Kanu has done work of merit, has much to offer, and will, the Tribunal hopes, be afforded the opportunity to continue to work, consistently with a competence increased with the support of the Respondent, in the field of immigration.

The Tribunal does however conclude that the Appellant has not fulfilled the evidential burden placed upon him by the material legislation. The Tribunal has been satisfied that the evidence, cumulatively, as to deficiencies on the part of the Appellant in respect of administration, accounting, record-keeping and competence, justified fully the Respondent in arriving at its decision of 7^th November 2005, and accordingly dismisses this Appeal.

David Hunter QC

27 March 2006

IMSET 2005/013/rnv

The Commissioner queried the issue of the appellant's charges in respect of the matter of Sonoj CHIPALU.(SC) and this was raised as point 6 in Miss Woods' Identified issues report of 10/10/2005. The appellant refers to this file on page 48 of his bundle and states that (para 82) ''we submitted representations immediately and he (SC) was transferred back to Glasgow.''

In the CHIPALU file, the Bail Summary provided by the Immigration Service records that removal directions were deferred and SC moved back to Glasgow as ''further representations were submitted by an MP'' requesting SC's transfer. The appellant's file shows no record of the appellant having had any contact with any MP. The Immigration Service briefing gives no credit to the appellant, as having been the motivating factor behind SC's transfer to Scotland.

The tribunal examined a number of files provided by the appellant, (AK), and found them generally to contain copies of relevant correspondence from the Home Office and most outgoing letters but often lacking in records of instructions received from clients and fee breakdowns.

In the CHIPALU file, we found that SC was an illegal immigrant, who had been arrested and detained by the Immigration Service, pending his deportation to Nepal. AK had, according to a fly note in his file, been instructed by SC, whom he had visited in detention, on 12 February 2005, We did not examine or retain copies of SC's medical details.

Between 12 February 2005, AK commenced representations on behalf of SC to obtain his release, on bail, from immigration detention. These took the form of fax correspondence between AK and Chief Immigration Officer Goody, at Edinburgh Airport. Essentially, these representations amounted to a request to release SC on the grounds that his Human Rights were being breached by his continued detention and later on medical grounds AK also requested that SC be granted Indefinite Leave to Remain, in the UK on the grounds that he had established a family life.

AK's file records further written representations on 22nd February and 25 February 2005, in his own words, as being the ''bail application'' on behalf of SC. The Home Office in its response to representations made by AK on 14 February 2005, refer to AK's representations against the detention of SC. In its response to AK's substantive letter of 19 February 2005, the Home Office on 7 March 2005 addresses AK's, attempts to prevent ''the removal of his client'' and their Human Rights implications and dismisses the request for Indefinite Leave to Remain. No right of appeal was given and this was not challenged by AK.

On 28 February 2005, the Immigration Service provided a chronological immigration history of SC in the United Kingdom. From this it is clear that all SC's appeal rights had been exhausted; ''as of 24/07/02.''

It was raised before the tribunal that AK obtained SC's release on bail by claiming that SC had an outstanding appeal.

We did not have a transcript of the bail hearing before us but the letter of the DCA dated 21 March 2005 is instructive. The DCA state that SC's representative (AK) had informed the Adjudicator, ''at the hearing that an appeal was pending and understood from the Presenting Officer that this was not disputed.'' The DCA continue by stating that all parties were present at the hearing and all relevant issues in respect of any outstanding appeals ''ought to have been raised'' The file does not show that AK, who continued to be SC's representative for a further 22 days, disputed the DCA's assertion.

On 12 April 2005 AK gave notice to the IAA that he was no longer representing SC.

On the issue of AK's fees, there is no fee breakdown recorded in the file and no evidence in the file of travel and/or accommodation receipts. The total fee is described as being £1740.60 of which the fly note appears to record a payment on account of £500 that does not appear to have been deducted from this total bill.

On the issue of record keeping, the file lacks any client care letters or correspondence with the client and holds no records of telephone conversations.

On the issue of AK's alleged statement to the adjudicator at the bail hearing of 1 March 2005. On a balance of probabilities based on the evidence before the tribunal AK made this statement. This statement was then equally, on a balance of probabilities, given the evidence, factually inaccurate.

SC had made no formal application to remain in the United Kingdom prior to the bail hearing, representations were made by AK on Human Rights grounds but these were not answered until after the bail hearing. There was accordingly no immigration decision against which any right of appeal could have been made at the material time of the bail hearing on 1 March 2005. As the immigration history clearly specifies SC had exhausted all rights of appeal almost three years earlier and his immigration status in the eyes of the law was as at 1 March 2005 that of an illegal entrant. It was for this purpose that he had been arrested and detained.

Representations made by AK were in AK's own words to obtain release on bail. AK completed a statutory form to this effect. This is not an immigration application but represents supporting grounds for an application to be released from immigration detention. There was no outstanding appeal right, as the bail hearing had not taken place.

It is clear too that, on a balance of probabilities, AK's statement to the Adjudicator went unchallenged at the hearing by the Presenting Officer acting on behalf of the Immigration Service. AK cannot be held responsible for this abberation.