Benjoh Kind Ukeleghe v Office of the Immigration Services Commissioner

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Determination and Reasons.

Backqround.

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The Immigration Services Commissioner, the prosecutor, laid a disciplinary charge against Benjoh King Ukeleghe, the person charged, by written notice dated 24th June 2005. [Bundle page 29]. The Tribunal acknowledged the charge and sent a copy to the person charged.

By written application, served with the charge and dated 24th June, the prosecutor applied for a direction under paragraph 9(3) of schedule 5 to the Immigration and Asylum Act 1999 that the person charged and any person employed by him be prohibited from providing immigration advice and immigration services until the conclusion of the charge proceedings or further order [Bundle pages 30-31].

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I held a hearing on 20th July 2005 and refused to make a direction as requested.

The Hearinq.

The hearing of the charge proceedings took place at Procession House, 55 Ludgate Hill, London EC4M 7JW on 17^th November 2005.

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Simon Ray of counsel represented the prosecutor and Ms Oji of counsel represented the Defendant.

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A preliminary point was raised namely, that the letter of complaint [Bundle page 23] was addressed to the company, City Immigration Consultants Ltd and that the attached alleged possible breaches [Bundle pages 24-27] were all alleged against the company. The resulting Determination dated 24 June 2005 [Bundle pages 1-22] was against the company. I asked Simon Ray how the Commissioner put the case against the individual defendant. He replied that he relied upon the witness statement of Berita Tendayi Mapembe [Bundle pages 68-80] dated 3rd June 2005. I pointed out the fact that the written charge [Bundle page 29] referred to the Determination dated 24th June 2005 alone as the evidence against the defendant. Simon Ray agreed that the determination was against the company and not the defendant.

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We retired to discuss the position.

We returned and asked Simon Ray for further help.

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The Immigration and Asylum Act 1999 by section 83 provides that the Commissioner is to have the regulatory functions set out in part 1 of schedule 5 to the act. Schedule 5 paragraph 5 provides for investigation of complaints against persons. Paragraph 6 provides that the person, the subject of the investigation, must be given a reasonable opportunity to make representations to the Commissioner. Paragraph 8 deals with determination of such complaints against persons. Paragraph 9 provides a range of discretionary sanctions that can be exercised by the Commissioner when a complaint is found proved. The Commissioner has a range of options, which include under paragraph 9(1 )(e), the option to lay before the Tribunal a disciplinary charge against a relevant person.

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Here the complaint was laid against the company but not the defendant. No proper details of the conduct alleged against the defendant were provided in the charge. It was not clear how the Commissioner put the case against the defendant.

We asked Simon Ray how he dealt with this question. He said that he relied on the statement of Berita Tendayi Mapembe and the allegations therein.

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We asked Ms Oji for her comments. Ms Oji said that she had read my comments in the refusal to make an interim direction under Rule 15 and she was concerned to ascertain the case against her client. Once it was conceded that the complaint

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[Bundle page 23-27] and the Determination [Bundle pages 1-22] were against the company and not the individual, there was no other allegation in the charge for her client to dispute.

We retired again.

We returned and told the parties that the prosecution failed, the charge was dismissed and we would deliver written reasons in the near future.

Reasons.

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The Immigration and Asylum Act 1999 sets out a statutory procedure to be followed

when investigating complaints. The statute provides that the person, the subject of complaint, must be given a reasonable opportunity to make representations to the Commissioner. The Commissioner's complaints scheme, paragraph 35, makes it clear that the person, the subject of the complaint, will be notified of the complaint against them and, by paragraph 36, that following the Commissioner's determination of the complaint, the Commissioner will provide a copy of his written statement to the

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person complained of. Schedule 5 paragraph 9(1 )(e) of the Immigration and Asylum Act 1999 and Paragraph 37(d) of the Complaints scheme make it clear that the Commissioner can then lay a disciplinary charge against any relevant person. Paragraph 37 (d) of the scheme continues, "This would generally apply to the most serious matters or where there is a history of complaints",

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We take the view that where a charge is laid against a person who has not been the subject of a complaint that has been investigated in accord with the statutory scheme then the charge must specify precisely what it is that he or she has done or not done and why such action or inaction is in breach of a specified Rule or Code. This is necessary both to concentrate minds on the allegations and to provide an opportunity for the defendant, who faces the loss of his or her livelihood, to conduct a proper investigation and prepare his or her defence. In this case the charge referred to the determination against the company and did not make clear the allegation against the Defendant. We took the view that the charge was defective and could not succeed.

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We dismissed the charge.

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17^th November 2005

His Honour Judge Seddon Cripps.