IMMIGRATION AND ASYLUM ACT 1999
IN THE IMMIGRATION SERVICES TRIBUNAL
APPEAL NUMBER: IMS/2007/3/RCR
Between:
ADAGIO CONSULTING LTD
Appellant
-and-
THE OFFICE OF THE
IMMIGRATION SERVICES COMMISSIONER
Respondent
Before
Brian Kennedy QC (Chair)
with
Shindo Maguire
and
Paul Barnett
Sitting at Procession House, 55, Ludgate Hill, London EC4M 7JW.
Appearances:
For the Appellant: David Mitchell of Counsel
For the Respondent: Melanie Cumberland of Counsel
Hearing dates:
30th – 31st May 2007
1st June2007
13th – 14th August 2007
17th – 19th September 2007
Decision and reasons sent to the parties on:
Wednesday the 26th September 2007.
Decision and Reasons
Background:
Adagio Consulting Limited, the Appellant (“A”) was founded by Kobina Oduro-Mensah (KOM) with the help of the Prince’s Trust and the East London Small Business Centre in 2001. The A was incorporated on 29 June 2002 and registered with the Respondent, the Office of the Immigration Services Commissioner (“R”) that year.
The A’s registration was renewed year-on-year until its application of 10 March 2006 which after a prolonged review by the R was refused in a letter (including twelve appendices) dated 20 February 2007 [bundle 1, pages 1-101].
The letter set out five grounds for refusal:
Failure to charge fees in compliance with the Commissioner’s Rules [b1, 2]
Failure to demonstrate competence as required by the Commissioner’s Code of Standards [b1, 7]
Failure to ensure publicity, advertising and promotional material for the organisation is in accordance with the Commissioner’s Code of Standards [b1,8]
Failure to have audited, certified or verified business accounts as required by the Commissioner’s Rules [b1, 9]
Failure to act in their clients’ best interests as required by the Commissioner’s Code of Standards [b1, 10]
The R’s decision was appealed by the A on 19 March 2007 [b1, 102-121]
On the 22 March 2007 HHJ Cripps heard an application by the A to suspend the R’s decision pending the substantive hearing by this Tribunal. Judge Cripps allowed that application and in his ruling summarised the application thus:
“This is not the case of an appellant who has refused to listen or communicate with the R. For each complaint, a measured and detailed answer is provided. On the papers before me, I cannot say that this appeal is unlikely to succeed. I am not prepared to close the appellant down now when there is a real possibility that the appeal may be successful in the future”
Evidence in the appeal was heard over six days, namely 30th and 31st May, 1st June, 13th and 14th August, and 17th September 2007 followed by comprehensive and detailed submissions by the parties on the 18th September and after considered deliberations, an oral ruling by this Tribunal on the 19th September. The length of the hearing was due to a significant increase in documentation presented by the parties for the hearing (ultimately 5 Bundles of Documents), an original underestimate of length of hearing and the subsequent unavailability of a venue.
The A has the burden of proving the facts on which he relies on the balance of probabilities (Rule 22(2) Immigration Services Tribunal Rules 2000). A party alleging fraudulent conduct is required to prove the charge beyond reasonable doubt (Rule 22(3)).
The Tribunal wishes to acknowledge the important and significant contribution of both counsel in their preparation and presentation of this case.
The Issues:
The thrust of the R’s evidence in support of the first ground for refusal was that the A had been requested on a number of occasions over an extended period to provide what the R felt was a transparent fee scale. In evidence it became clear that the R relied on Rule 14 with particular reference to the ‘professional fee’ charged by the A, which Mr. KOM for the A in evidence stated was essentially A’s profit margin, and the R stated that Rule 14 prohibited such fees. (Ref: letter and witness statement of Caseworker A of R).
The R, throughout a lengthy period, corresponded with the A and the tribunal
had some sympathy with the A’s argument that there was confusion by what the
R actually sought in respect of the A’s fee scale. It seemed to the A that on
occasion it was to be a fixed scale and at other times this appeared not to be the
case.
The R persisted in their assertion that Rule 14 had not been met and that the A
was being uncooperative. The A in response, in their evidence of 31 May 2007
through Mr. KOM, stated that the changes required by the R to the A’s fee scale
structure would have consequences for the business and Mr.KOM argued that
the A was doing his best to comply with conflicting requirements from two
different caseworkers, with the second of whom relations had deteriorated very
significantly. In fact correspondence about the fee scale had been ongoing from
Mr.KOM stated that Caseworker B the earlier caseworker from the R,
didn’t offer much assistance and that the A called in the services of a business
consultant to assist them in resolving the fee scale matter.
In her witness statement, Caseworker A, the caseworker dealing with the registration application of the A at the time of the refusal, stated that Rule 14 did permit the consideration of a professional fee in the event of a successful outcome see Para 4a witness statement of Caseworker A, Para 38 of witness statement Caseworker A. and finally at Para 39 of witness statement of Caseworker A wherein she suggested that the professional fee was not allowed by Rule 14.
Counsel for the A indicated in cross examination of Caseworker A that Rule 14 makes no mention of any such matter. The Tribunal finds this point persuasive but as Rule 14 is in fact silent on the matter of professional fees or success fees neither side can adduce any advantage from this point. The argument has no
merit for either party for the purposes of this appeal. However there was
confusion about the degree and extent to which it was perceived that the R was
seeking to interfere with market rates and it is clear that this did much damage in
the relationship between the parties.
The second ground of refusal by the R relied on the matter of the A’s failure, in
the eyes of the R, to demonstrate competence as required by the Commissioner’s
Code of Standards. This is in essence related to an employee with the A firm,
Mr. DB who was in the opinion of the R conducting unsupervised work above
his level of registered competency (Level 1). At an audit conducted at the A’s
premises on the 18th September 2006, Mr. DB took a written Level 2
competency test and failed. In addition, and as a result of concerns observed by
the R at this audit, it was stipulated that Mr. KOM was to attend Level 3 training
within three months, sending the R confirmation that he had done so. Further the
R became aware that Mr. KOM had not sat the Level 3 competence assessment
although he had participated in the pilot scheme run by the R prior to the
implementation of the requirement for assessment. The R had taken the view
that all those who had participated in the pilot must still sit the Level 3
competence assessment and no later than December 2006. Mr KOM duly sat the
Level 3 assessment and failed.
The A sought to negate this requirement by suggesting inter-alia that the R was
operating an unfair scheme by having practitioners’ assessments marked by the
R’s staff with less qualifications and experience than the practitioners. The A
further sought to rebut the R’s argument by stating that it was the A’s view that
as Caseworker A had marked Mr. KOMs’ paper, given the tension between the
two and the fact that Caseworker A was A’s caseworker there was a potential
conflict of interest. Caseworker A stated under cross examination that she passed
the answers to be checked by peer members within the R hierarchy. Again,
the argument of the
A, while persuasive to an extent and certainly raising important questions of
perceived conflicts of interest and procedure, fails to answer the criticism. The
fact remains that Mr. KOM and Mr. DB, both advisers at the A, have yet to pass
their respective appropriate level competency tests. However unpalatable the A
may find this scheme, there is now a requirement to comply. This Tribunal
however were concerned about the stark contrast between the
approach of Caseworker B the earlier caseworker and Caseworker A. The latter
although conscientious was arguably confrontational, arguably overzealous and
lacked experience. Caseworker A had ceased to converse with the A and only
communicated in writing. A background that lent itself to a perceived
prejudice and bias against the A. The Tribunal are of the opinion that it was
unfortunate that in these circumstances, exams sat by Mr. KOM and
Mr. DB were marked by Caseworker A at all.
The third ground of refusal by the R rests on the argument that the web site
of A was misleading to their (potential) clients in particular according to the
R because it mentioned specific outcomes within set periods of time that the
R suggested could not be met. The A answered this by referring to the fact
that they removed the only offending word that the R had stated was a
problem and that they had assumed that the matter had been resolved until
the refusal notice. Caseworker A stated that she had referred in the Identified
Issues Report (IIR) drawn up during the audit to more than one problem
with the web site. It is certainly the case that the web site print out
produced in evidence to this Tribunal continues to make claims of visas
being obtainable within a set period of time. This does seem strange to the
Tribunal as it is difficult to see how the A could have predicted this with
such assurance when each case must surely be processed differently even
when straightforward and is in any event dependant on Home Office
workloads and other factors outside the control of the A. From the totality
of the evidence provided however, the Tribunal concludes that the A did
comply with the ostensible request of the R to withdraw the word guarantee
from the web site and that there was no further clear signal from the R as to
what more was required of the A to address this issue.
The Tribunal heard evidence from Mr. DF, who was appointed by the A to
act as accountant to the company. The Tribunal found Mr.DF to be a
competent qualified and credible Caseworker And his evidence assisted the
Tribunal in assessing this fourth ground of refusal. The basis of this ground
arose from the R’s statement that the A had, despite repeated requests,
failed to provide independent audited accounts in accordance with the R’s
Rules. The A sought to address this matter by stating that they had thought
that accounts had in fact been provided and were the ones already submitted.
It remained the R’s contention that these did not constitute independently
audited accounts. Mr. DF stated in his evidence that he felt the accounts
sufficed and that he had drawn them up but could not explain under cross
examination why they had not been signed. He offered the suggestion that
they may have been sent by email. The Tribunal had no reason on the basis
of this evidence and the presence of accounts to doubt Mr.DF’s evidence or
that of Mr. KOM on this matter and therefore did not find the R’s
arguments in support of this ground of refusal to be sufficient.
2..10 The fifth and final ground of refusal by the R rested on the R’s statement
that the A had not acted in the best interests of their clients. The R sought to
support this argument by relying on complaint determinations that had been
laid on the file during the current year of application. A number of these
were outlined in the R’s letter of refusal of 20 February 2007 and all were in
some way related to arguments about fees. There were also competence
related issues that mirrored the earlier argument of the R that Mr.DB was
acting above his level of competency and that this was noted at the premises
audit of 18 September 2006. In reply to this argument, counsel for the A
raised the matter of the complaints procedure and remedies or the lack
thereof during the procedure for the A or indeed any practitioner
complained against. It became apparent from evidence of Caseworker A under
cross examination, and indeed from Mr. KOM in his evidence in chief, that
the R has no procedure in place that allows an appeal against the negative
determination of a complaint against a practitioner. It was further
established at this appeal that the R’s process for evaluating complaint
determinations laid on a particular file was to review only the
determinations and not the background or the whole complaint when
making a decision on registration of an adviser. Caseworker A confirmed that
she had indeed stuck to this procedure. On balance the Tribunal found that
there were clearly several complaints against the A and that they
predominantly related to fees and unexpected charges. This suggested to
the Tribunal a problem with the A’s charging practices which the R had
already taken into consideration as part of her decision to refuse to register
the A. However in the circumstances outlined, the tribunal cannot place
significant weight to these determined complaints which are no substitute
for evidence on the merits.
At this stage it was the opinion of the Tribunal that counsel for the A had
raised some very important points which, the R may ultimately wish to
consider and had properly led to this appeal. The Tribunal was of the
opinion that the appeal was finely balanced.
During the course of evidence being given, an issue arose relating to a
substantial part of the R’s procedure when considering an application for
re-registration that is the premises audit. This process is conducted on an
annual basis by the R to ensure advisers are compliant, competent and
conducting their businesses in compliance with the Commissioner’s Rules
and Codes of Standards and that advisers are acting in the best interests of
their clients.
Such a premises audit was conducted by Caseworker A and Caseworker C (then
employed by the R) on 18 September 2006 at the A’s offices. During the
course of this audit, Caseworker C examined the file of one Mr. Anderson,
which the A had conduct of and whom the A had represented in his claim for
Political Asylum. A report of this audit is set out at p 291 of bundle 1
placed in evidence at Appeal. Of particular interest to the Tribunal is the
report of the audit of the file of Mr.Anderson dealt with at p 293 of bundle 1.
The case is related and the perceived shortcomings are cited by the Caseworker
A in her report. In particular under the heading Issues, point (iii.), reference is
made to a letter dated 15th December 2004 written by Mr. DB of the A’s
firm, suggesting that the client might benefit from the “new amnesty rule’’.
It was contended by the R that this letter had not been well drafted and that
Mr. DB had been working at a level above that at which he was qualified
and that this was against the best interests of the A’s client. Other
comments were made about the quality of the A’s work.
In his witness statement Caseworker C elaborated on this audit and in particular
refers to his examination of three files, one of which was called Anderson (p
520 Bundle 1). Caseworker C specifies that he left his findings on this case,
(which is contained in pages 1-5 of his typewritten notes dated 25 September
and that most of these comments were incorporated, in the audit report.
(para 14 p 520 bundle 1). At para 17 of his statement of evidence (p 521
Bundle 1) Caseworker C stated that he left handwritten notes he had made on
Caseworker A’s desk and that these were later typed up in the more formal
report of 25 September 2006 which is found at p 47 of bundle 1. Page 56 of
bundle 1 relates to Mr DB’s actions on files he contributed to and Caseworker
C states that Mr.DB’s actual work on the case (Anderson sic) raised concerns as
well. Mr. DB’s letter dated 15 December 2004 suggested his client would
benefit from ‘the new asylum amnesty rule’.
In answer to this point the A in his amplified grounds of Appeal stated at p
116 of bundle 1, that: “Also the issues regarding the letter dated 15
December 2004 and outlined in the Identified Issues Report at page 10
(bundle 1 sic) was actually written by NNK who was registered at level two.
It again demonstrates how factually incorrect the Commissioner has been
and how little communication has taken place between Adagio and the
Commissioner.’’
The issue of the letter of 15 December 2004 arose then in evidence in chief
given by Mr. KOM on 13 August 2007. In a continuation of his evidence in
chief the A had produced a further bundle of documents recorded as
bundle 4 for the purposes of the appeal. Among the documents the A
ought to rely upon were two letters related to the Anderson file. The first at
p 4 of bundle 4 was dated 15 December 2003 and purported to be signed by
NNK to the Home Office and the second was a letter dated 15 December
2004, also signed although not this time in a handwritten manner by NNK.
This letter too, was addressed to the Home Office.
Under questioning from Counsel for the R, the A was asked about the letter
dated 15 December 2003 signed by NNK which the R had referred to as
having been signed by DB. The A responded that there was only a letter
dated 15 December 2003 signed by NNK. Counsel for the R continued to
ask the A why he had not produced the letter dated 15 December 2004
earlier to which the A responded that it was in the file. Counsel for the R
then put it to the A that the letter dated 15 December 2004 had been
produced for the convenience of the appeal. The A responded that there
were so many allegations the A could counter and was again asked by
Counsel for the R why the letter had not been produced earlier, particularly
as the matter had been used as part of the R’s refusal reasons.
The Tribunal then invited Counsel for the R to formally put to the A the
implication that the letter had been fabricated for the purposes of the
hearing, if that was what she was implying. This Counsel did and the A
stated under oath that he could not give a better answer than that “we
haven’t manufactured it” and that “his solicitor had said it was not
necessary at this stage” and “that the Appellant had no reason to
manufacture the letter”.
In his evidence in chief of 14 August 2007, Mr.DB stated under oath that
he had done a lot of work on the Anderson case and that he knew that there
was a letter going to the Home Office on 15 December 2004 but not to the
client Anderson. Counsel for the R put it to Mr. DB that the letter of the 15
December 2004 had been recently created . DB responded that he could
not see how it could or would have been. He continued that he had been
looking for a letter dated 15 December 2004 to Mr. Anderson, but didn’t see
the letter.
Caseworker C who attended the premises audit of 18 September 2006 on behalf of the R gave evidence on 14 August 2007 and under oath stated that he did
not recall seeing a letter dated 15 December 2004 signed by NNK. He
could also not recollect any of the other documents on the file. Counsel for
the R then referred to a set of handwritten notes produced before the
Tribunal under disclosure and numerated p 44. These notes were a list of
documents that Caseworker C had noted as having seen on the Anderson file and
made at the time of the audit. Starting three lines down from the top the
entries are recorded as follows:
10/12/03: IND only – awaits (illegible) asylum nat.
15/12/04-ref to above letters enc b/c for client and suggests may benefit from
‘’the new asylum amnesty rule’’
15/12/03 letter to client (illegible?)
8/6/04 clearing reply from IND
29/09/04 letter of NK (all work done by NK and DB) illegible (Red delivery)
11/1/05 can update-can still (illegible) (no illegible of contact with HO
illegible)
11/2/05 Clear to HO from DB- he illegible do then.
14/2/05 letter to client of 11/1/05 – again no sign of reply from HO
11/3/05 illegible
12/5/05 letter to MP
There were other letters mentioned later but these are of not material to the
matter at hand .
The Tribunal therefore was presented with conflicting
evidence and the fact that Counsel for the R had put to the A that he had
manufactured the letter of 15 December 2004 for the convenience of the
hearing. The A flatly denied this and the A could see no reason why it would
have been manufactured. Caseworker C who had conduct of the Anderson file at
audit was unable to recall exact documents but did not remember the letter
produced at p 5 of Bundle 4, although his handwritten notes mention a letter
dated 15 December 2004 which was out of sequence with the other dated
letters.
The Tribunal therefore directed that the original file would be
sought from the Home Office with a view to establishing the facts.
The Home Office produced the requested file, with the valued assistance of
Mr. HN, an employee of the Home Office, in order to establish the presence of
those documents received from and sent to the A.
For the purposes of brevity, the relevant portion of the list of documents read
out in court under oath by Mr HN of the Home Office is cited below.
28/11/03 Appellant (A) to Home Office (HO)
10/12/03 HO to A
15/12/03 A to HO (Mr HN pointed out that this letter had actually been
dated 15/12/04 and the date amended manually to 2003.)
23/09/04 A to HO
11/02/05 A to HO
11/03/05 A to HO
11/03/05 A to HO (different section)
12/04/05 A to HO
In a separately attached bundle of letters attached to the Home Office file the following sequence of correspondence was related to the Tribunal by Mr. HN.
28/11/03 A to HO
04/12/03 A to HO
15/12/04 A to HO ( this was in fact, when the contents were read, out the letter
above and amended above to 2003)
23/09/04 A to HO
The Tribunal asked Mr HN to place the letter at p 5 of bundle 4 and dated
15/12/04 alongside the letter dated 15/12/04 in the Home Office file and to
read the contents. Mr HN confirmed under oath and before the Tribunal that
the letter at p5 of bundle 4 was not the same as the letter of erroneously dated
15/12/04 in the Home Office file. Furthermore the letter dated 15/12/04 and
the one amended from 04 to 03 were one and the same as were in fact the
contents of the letter at p 4 of the Appellant’s bundle 4.
In fact the other correspondence noted on the Caseworker C handwritten note
between the Home Office and the A appeared in the Home Office file. Mr. HN
further confirmed in response to Counsel for the A that there was but a “very
small possibility” that any correspondence could be lost in linkage of papers at
the Home Office.
On examination of all of the above evidence further independent
corroboration was available in the A’s bundle 4 at p 9 of the bundle which
formed part of the Draft for Comment drawn up by the office of the
Parliamentary and Health Service Ombudsman, who had acted on behalf of
the A in his complaint against the Home Office. At para 12 of the draft the
Ombudsman relates correspondence between the A and the Home Office and
confirms again that a letter of 15 December (no date shown) was sent to the
HO including birth certificates for the client’s two children. It was noted, the
year of this letter has been left off while no other referenced letter misses the
year of writing. However the Tribunal can rely on the A’s own letters and at
p 4 of bundle 4, the Tribunal noted that the contents of the letter referred to
by the Ombudsman were the same as the letter dated 15 December 2003 and
produced at p 4. These same contents are reproduced in abbreviated form by
Caseworker C in his handwritten notes under the date 15/12/04. The same
Contents were read out by Mr HN of the HO under the letter erroneously dated
15/12/04 and amended by hand to 03.
The Tribunal therefore was able to gain considerable insight in respect of the
letter dated 15/12/04. Three pieces of factual and corroborating evidence
indicated that the letter dated 15/12/04 in Caseworker C’s handwritten note, the
Ombudsman’s draft and the Home Office file were one and the same letter and
that the original letter which lies on the HO file was in fact originally dated
2004 and amended by hand. Nowhere in the evidence is the letter of 15/12/04
allegedly sent to the Home Office, as produced at p 5 of Bundle 4 by the
appellant and upon which he sought to rely, to be found.
In particular, this letter was not on the Home Office file whereas all the other
correspondence noted by Caseworker C was. The only conclusion to be drawn
and that which has indeed been drawn was that the letter at p 5 of Bundle 4
had indeed been subsequently created by the A thereby misleading this
Tribunal.
Furthermore, it is our view, on the balance of probabilities, that the letter
produced in Bundle 4 at p 4 is not an original. The Tribunal was assisted by Mr.
HN of the HO who stated that the letter dated 15/12/04 had been amended by
hand to 03. It’s contents were identical to the letter produced at p 4 Bundle 4
and it would therefore have been reasonable to have expected to see the 2004
date replicated at the top of this letter. In fact the letter is dated 2003.
Decision and Reasons:
The Tribunal are conscious of the implications of this appeal for both Mr.
KOM and Mr. DB trading as they do as ADAGIO CONSULTING
LIMITED and do not come to our conclusion lightly. We have considered
carefully the voluminous papers and documents presented to us together with
the oral evidence of the witnesses given at this hearing. We are satisfied to the
required standard of proof that the purported letter of the 15th December 2004
to the Home Office was in fact manufactured in the belief that it would in
some way assist the A at this Appeal. We are unanimous in this view and are
firmly convinced, beyond any reasonable doubt, that Messrs KOM and DB
falsified evidence before this tribunal in relation to the existence of this
purported letter of the 15th December 2004 at p5 of the A’s bundle 4 which
they tried to persuade us emanated in the course of their handling of the
Anderson file.
Further having had the opportunity to hear the witnesses at length, we are, on
balance, of the opinion that the evidence supports the R’s assertion that the A
was unwilling to comply with the R’s requests rather than unable to understand
them.
In all the circumstances we cannot rely on the credibility, or accept the
evidence of, the main witnesses for the A and for that reason we must reject
this appeal.
Brian Kennedy QC