Immigration Advisiory Service v Office of the Immigration Services Commissioner

The Immigration and Asylum Act 1999

The Immigration Services Tribunal

Appeal Number: MS/2005/2/RCR

Between

Immigration Advisory Consultants Limited

Appellant

-and-

The Immigration Services Commissioner

Respondent

Before George Marriott, Chairman

Doctor Alan Montgomery

Doctor Susan Rowlands

Sitting at Procession House

55 Ludgate Hill

London

EC4M 7JW

Sent to Parties:

This 4^th day of October 2005

DECISIONS AND REASONS

INTRODUCTION

1. Reference to documents in this decision are by reference to the agreed and paginated bundle prepared by the Respondent. Where reference is made to individuals, their initials are used so as to preserve confidentiality.

BACKGROUND

2. The Appellants’ original application for registration (pursuant to the Immigration and Asylum Act 1999 (the 1999 Act), ) had been approved on 23 August 2002. Their application for re-registration in August 2003 was delayed pending an audit which took place in January 2004. In the light of unsubstantiated issues arising from that audit the Respondent decided to approve the application but notified the Appellant that re-registration in 2004 would be subject to the satisfactory outcome of a follow-up audit in August of that year.

3. Following that investigation, the Respondent, by letter dated 10 March 2005 with annexes (1 – 87), decided to refuse the application for continued registration. He relied upon paragraph 3 (5) of schedule 6 of the Immigration and Asylum Act 1999 which states:

“if the Commissioner considers that an Applicant for continued registration is no longer competent or otherwise fit to provide to provide immigration advice or services, he must cancel the Applicant’s registration”.

4. As a result, the Appellant appealed the decision (88 – 103). At the same time, the Appellant made an application to suspend the Commissioner’s decision pending the determination of the appeal. That application was refused on the 16 April 2005 (111 – 113). The consequence of that was that the Appellant could no longer provide immigration advice and services after 1 month from the 10 March 2005.

5. The Appellant had been represented by solicitors in connection with the lodging and the settling of the grounds of appeal but on the day of the Hearing, the Appellant was represented by new solicitors, and Mr Faisal Khan, a partner of the firm, conducted the Appellant’s case. The Respondent was represented by Counsel in the person of John-Paul Waite.

6. At the beginning of the case, the Appellants, even though they had lodged five witness statements, indicated there would only be one live witness in the person of SH. The Appellants indicated to the Respondent that they had no questions for three of the Respondent’s witnesses namely CR, RH, and AMK.

7. Accordingly, the limit of the Appellant’s evidence was that evidence given by SH. The evidence submitted by the Respondent for cross examination was that of GT with the other evidence being admitted. The written witness statements submitted by the Appellant were not agreed nor tested in cross examination and we were not therefore able to give any weight to them.

8. One crucial witness for the Appellant could not attend for family reasons. We asked whether or not in the circumstances an application for an adjournment was to be made, but were told by the Appellant’s solicitor that no application for an adjournment was being sought.

LAW AND BURDEN OF PROOF

9. Since this was an appeal from the Commissioner’s decision, the burden of proof lay with the Appellant and the standard of proof was that on the balance of probabilities (Rule 22 (2) of the Immigration Services Tribunal Rules 2000).

THE HEARING

10. In accordance with previous directions and the practice of the Tribunal, any witness who was to give evidence had submitted a witness statement. SH gave the only evidence for the Appellant. She confirmed the truth of her witness statement (114 – 120). She confirmed that she was a Director of the Appellants, a Limited Company which had been incorporated in November 2002 and agreed that she was responsible for the general management of the Company and held the overall responsibility to ensure that it ran efficiently. She agreed that she was not registered as an adviser with the Respondent and therefore when cross-examined about the quality of the cases run by the Appellant, stated that she could not speak for the advisers who were not there and could not comment on the 16 files looked at by the Respondent. Accordingly, she was unable to comment or give any direct evidence in relation to most details of the Respondent’s decision. Much of her evidence related to the Appellants’ claim that when Y was working for them they were not in breach of OISC rules 28,29 and 30. She insisted that Y had worked legitimately for the Appellants with the knowledge of the OISC, stating that since he was already registered she had not seen any need to make formal application to the Respondent for permission to employ Y as an adviser. She maintained that the issue had been settled orally between one of her immigration advisers and a case-worker even though the latter had indicated in a letter ( document 284) that the issues would be re-considered when the application for re-registration was received in August 2004. She also asserted that she did her best to ensure that her staff did not do work at level 3, namely a level beyond which they were registered to provide services.

11. Her evidence concerning the August audit was that she had nothing to say about it as she could not interpret it because she was not an immigration adviser. Accordingly, and as she was not registered, she claimed that what knowledge she had about immigration she had picked up by osmosis.

12. When questioned by the Tribunal, she agreed that the Appellants were a limited company from the 19 November 2002 but before that, she believed that it was under the trading name of C who looked after all the finances until she became ill. Unfortunately C had since died. She was unable to offer any satisfactory explanation as to why complete financial records had not been released to the Respondent, simply reiterating that they had never been recovered from C.

13. Her attention was then drawn to discrepancies in the figures shown in documents 350 and 453 which are respectively management accounts for the period 1 November 2002 to 30 September 2003, and 1 November 2002 to 31 July 2003. She initially asserted that she drew no money from the company as would appear to be borne out by the management accounts at page 453 but then agreed that she had received the sum designated as “Directors remuneration” which appears at page 350. She was unable to explain why the figure shown for Directors remuneration for £5,400 when added to the wages and NIC of £32,013 gave a total of £37,413 for the longer period, which equated exactly with the total shown in the accounts for the shorter period. She was unable to explain why, according to the documents, no wages had been paid between the 1 August and the 30 September 2003, a total of two months. Her attention was drawn also to document 454 namely the Accountants’ Report, which stated that they relied upon information supplied by the limited company without carrying out an audit for the supply of those figures.

14. When asked about the failure to keep satisfactory records in all files examined, including on instructions taken from clients, she insisted that she put the interests of the client first but agreed that the Appellants “may not have been perfect in keeping attendance records, but this is not considered essential because of the way we charge our clients”. It was put to her with regard to files, that the Appellants did not make clear the range of advice and services they were authorised to provide under the Act and that this constituted a failure to act in the best interests of the clients and hence to act objectively and fairly with regard to them. She responded that this was an offensive suggestion: she always put the client’s interest first, but acknowledged that she did not have any knowledge of those specific cases.

15. That was the conclusion of the Appellant’s evidence and we did not direct our attention to any of the Appellant’s witnesses, NK, SZ, SF and BS, as although witness statements had been filed, they were not accepted or agreed by the Respondent and the Appellant did not call them.

16. Evidence was then given by GT, the case worker engaged by the Respondent, who produced the letter of cancellation dated 10 March 2005, which he had signed for and on behalf of the Respondent.

17. GT confirmed his witness statement (225 – 246). Dealing with the employment of Y by the Appellants he was shown a letter from Y in which he agreed that he was employed by them and that he ceased to be employed on 28 August 2003 (457). He acknowledged that there was no complaint with regard to the quality of Y’s work but stated that he had not told C that it was in order for Y to work for the Appellants. He agreed that the audit undertaken in January 2004 (page 2 – 3) had given serious cause for concern, so much so that he could have approached the matter in a different way with a view to considering whether there was sufficient evidence to cancel the registration there and then. However, in view of the delay in determining the Appellants’ 2003 application for re-registration he had decided to give them a further opportunity to put their house in order by the time of the next audit in August 2004.

18. He was then taken to a specific number of files. On one file, (698) where he had concluded that the case was mishandled, the Appellants claimed that a positive decision by the IAA vindicated their actions. We came to the conclusion that the investigation was fairly conducted. The procedure adopted by the Commissioner was to identify a number of issues and ask the Appellant for their response. In the light of that response, he decided that his knowledge on a particular area of immigration law and practice was insufficient to come to a conclusion and therefore instructed an expert in the person of AMK (251 – 255) whose evidence was not challenged by the Appellant. The appellants had instructed solicitors to comment on AMK’s initial report. What was at issue was whether the appellants knew how to make an appropriate application that could be considered either as a human rights application or as an application under a concession, when it did not fall clearly within the terms of the concession. Armed with that evidence and notwithstanding the representations made by the Appellant via other solicitors, he came to the conclusion that the Appellants failed to demonstrate a detailed knowledge of the Human Rights Act 1998 which was a competency requirement of immigration advisers. The fact that the IAA subsequently reached a favourable decision does not obviate the failure of the Appellants to provide soundly based advice. It was an IND grant of leave to remain.

19. He was then taken to another file involving work permits and Sector Based Scheme (SBS). We were satisfied with the conclusion that he reached namely that the Appellants had failed to demonstrate competence required for this at both levels 1 and 2. The Appellant produced no evidence to counter this.

20. The cross examination then proceeded with regard to other files (712 – 629). We were satisfied that the conclusions reached by the Respondent, namely the failure to advise the client on the interview or attend the interview with the client, meant that the Appellant had failed to demonstrate a detailed knowledge of asylum legislation and procedures.

21. In relation to the issues concerning the employment of Y which the Appellant had been at pains to explain, the witness emphasised that he did not mention Y in the decision because of any potential confusion concerning the status of Y’s employment with the Appellant i.e. an employee or a consultant. We took the view that that was a fair stance to take.

22. GT made it plain that he had, for the purposes of making his negative recommendation to the Commissioner, taken a conscious decision not to base his decision on the specific findings from the earlier audit in January 2004 but had concentrated on the audit in August 2004. He had however concluded, and we agreed, that the repetition of similar shortcomings exposed by the second audit showed an unwillingness to taken on board the lessons of the first audit and adapt procedures in order to work within the rules.

THE DECISION

23. Having heard the evidence, and looked at the documents, we came to the conclusion that the Appellant had not discharged the burden of proof; indeed the Appellant had considerable difficulties as no direct evidence was called from any of the case workers and relevant materials were not provided to the Tribunal. The only evidence led by the Appellant came from a Director who was not a registered adviser and who admitted that her knowledge of immigration matters had been acquired “by osmosis”. Therefore, we dismissed the appeal.

REASONS