Edinburgh Law Centre v Office of the Immigration Services Commissioner

Background

The Immigration Services Commissioner, the respondent, sent a statement of complaint to Edinburgh Law Centre, the appellant, with letter dated 23^rd March 2005. Thereafter there was correspondence between the parties. The respondent visited the appellant’s premises on 27^th April 2005. The respondent investigated the complaints and other matters arising during her investigation.

By decision dated 7^th November 2005, the respondent determined that the appellant had breached paragraphs 9, 15, 16(d), 29, 32, 49, 50(a), 50(b), and 55 of the Code of Standards and withdrew the appellant’s certificate of exemption.

By Notice of Appeal, received on 16^th November 2005, the appellant appealed against the respondent’s decision.

The notice of appeal included an application to suspend the respondent’s decision pending the hearing of the appeal. [Rule 10].

Acknowledgement of appeal [Rule 6] was sent to the appellant and a copy of the notice of appeal was sent to the respondent on the same date.

I decided the application to suspend without holding a hearing. I refused to suspend the decision and delivered written decision and reasons dated 28^th November 2005.

The parties were notified that the hearing of the appeal would take place at Procession House, 55 Ludgate Hill, London EC4M 7JW at 1030 on Thursday 2^nd and Friday 3^rd February 2006.

The Tribunal was provided with a Notice in Reply by the respondent dated 5^th December 2005, expanded grounds of appeal by the appellant dated 23^rd December 2005, a bundle of documents prepared by the respondent [291 pages], a bundle of documents prepared by the appellant [157 pages], a witness statement by D O [for the appellant] and a witness statement by P O J [for the respondent].

The Hearing.

Daniel Onifade appeared to represent the appellant and give evidence on its behalf.

The respondent appeared represented by G Temme, who called a witness P O J.

Daniel Onifade opened the appellant’s case. Witness O then affirmed and his statement was treated as his evidence in chief. He was cross-examined by Mr Temme.

During the midday adjournment, the tribunal was provided with copies of the appellant’s original application form for exemption received 2 April 2001.

Witness J then took the oath. His statement was taken as his evidence in chief and Mr Temme asked him some questions on matters that had arisen during the morning. Daniel Onifade then cross-examined Witness J.

At the end of 2^nd February, the appellant reminded the tribunal that he had informed them in January that he could not attend on the 3^rd February. The hearing was then adjourned, part-heard, to 1000 on 24^th February 2006.

On 24^th February the adjourned hearing commenced at 1000. Witness J’s cross-examination continued until 12.36. He was then re-examined until 12.41. The Respondent then presented argument why we should not allow the Appeal. We rose for the mid-day adjournment. The appellant then presented argument why we should allow the Appeal. We retired at 15.30 to begin consideration of the issues. We said that we would return by 16.00 and tell the parties if we had made a decision, but reasons would not be available until later.

At 16.00, I returned and told the parties that we had not reached a decision, that we would therefore reserve our decision and deliver it, with reasons, in the near future.

Decision.

We dismiss the appeal.

Reasons.

We reminded ourselves that the burden was on the appellant to show the facts upon which it relies and the standard of proof was the balance of probabilities.

There are the following issues: -

Code, Paragraph 9. Does the letter at C1 in the appellant’s bundle comply with paragraphs 9 (b) and/or 9(c)? Was a copy of it retained in the client’s file? Was a copy of C2, the details of complaint handling procedures, retained on the client’s file?

The respondent’s argument is set out at paragraph 3.1 of her decision and amplified in paragraphs 6-15 in the statement of her witness, J. The appellant’s reply is set out in its reply and witness statement pages 1 and 2. The document referred to as the relevant document is at page 154 and C1.

We take the view that the words “The agreed cost of the services to be provided are as follows; between £400 and £700” do not comply with Code paragraph 9(b). We take the view that a figure must be specified, not a range as wide as this.

We take the view that the words “the above cost does not include cost/expenses or fees for other professionals e.g. Doctors, Interpreters or advocates, where they are required” do not comply with Code paragraph 9(c). We take the view that the necessary information must be specific to the client. In the Repeta case, there could be no possible need for an interpreter or an advocate to deal with the matter covered by the costs estimate i.e. to make an application to the Home Office. The letter must be drafted and/or amended so as to deal with the particular client’s case. He or she is entitled to know the nature and extent of any extra charges that may be necessary in his or her case. A general warning is insufficient to comply with Code paragraph 9(c).

Neither C1 nor C2 was in the copy of the Repeta file sent to the respondent on 4^th March 2005, p163-291. C1 and C2 appeared for the first time when sent to the respondent with appellant’s letter dated 7^th April, p96, 99. Neither C1 nor C2 were in the Repeta file when it was inspected during the visit on 27^th April. Witness O could not explain its absence on 27^th April, see note of conversation p130. Witness O told us in evidence that he found C1 and C2 were in the file on a later occasion when he found it between two other letters. It is clear to us that wherever C1 and C2 were, they were not in the copy of the client file sent on 4^th March nor in the file inspected on 27^th April. This is a clear breach of Code paragraph 9.

C69 shows that the Advocate instructed to present Repeta’s case at the hearing on 17 November 2004 charged £940.00 for his services. The respondent complained in her final speech that there was no note of any warning to the client of the likely fee to be charged by the advocate. This lack of contemporary note may be because the Appellant kept no notes of meetings. The lack of such note played no part in our decision.

C1 includes a standard paragraph indicating that a charge was to be made to the client. The question as to whether payment can be called for from a client was of some importance during the investigation and the hearing. The appellant when faced with an application form had the choice whether to seek registration or exemption. The form said that organisations offering services for profit are required to register (and pay the fee due from such applicants) whilst those working in the not for profit sector should seek exemption. This appellant sought and obtained exemption. At the time of its application there was no further guidance as to the meaning of the words “offering services for profit” and “working in the not for profit sector”.

The appellant’s understanding is set out at page 98 subparagraph 11. The respondent’s then view is set out at page 104 when witness J tells witness O that the appellant can make no charges at all for anything. Witness J agreed during the hearing that his then view was not correct.

The respondent issued further guidance on this matter, A3, sent 15 July 2004. This says that an exempt organisation cannot ask for payment from a client save for 3 matters.

The excerpts from the respondent’s Annual Reports for 2000-2001, p159/160 and 2001-2002, p161/2, speak of the “for profit” sector who charge for their services and the “not for profit” sector who do not charge for their services.

We are concerned that the difference between an exempt organisation and one requiring registration may not be as clear as it could be. Exemption is a matter for the Commissioner as there is no definition in the 1999 Act. The “not for profit” sector includes organisations that DO charge their clients. The payments may be called disbursements, fees, out-of-pocket expenses or by other words. There must always be a temptation for an organisation to seek exemption, if only to avoid the need to pay the fee required from those seeking registration. There may be occasions when an exempt organisation is charged with claiming payment(s) that show that it should be registered and cannot be exempt. Unless and until it is made clear exactly what, if any, payment can be called for by an exempt organisation, this is an area that may well cause difficulty.

Code paragraph 15. This allegation is now withdrawn. The Respondent says that the failure, if any, should be alleged under Code paragraph 12. This was not ventilated during the hearing. We make no comment save to record that we are aware of the Respondent’s current position.

Code paragraph 16(d). Does the appellant need to have verified, certified or audited accounts? If so, are the documents D1-15 sufficient? Do such accounts have to be available for inspection? Why were D1-13 not shown to the respondent before her decision?

The respondent’s argument is set out at paragraph 3.3 of her decision and amplified in paragraphs 19-23 in the statement of her witness, J. The appellant’s reply is set out in its reply and witness statement pages 2 and 3. The documents referred to as the relevant document are at pages 68 & 69 and D1-15.

Witness O told us that the appellant has accounts and such are as shown in D1-15. He said that his remarks on 27^th April 2005, p132 arose out of a misunderstanding. He thought the questions related to management accounts and not to annual accounts. Witness J told us that he asked for both annual accounts and any records of income and expenditure but was told that there were no accounts of any sort. Both agree that a document headed “balance sheet as at 31/01/2004”, p68 & 69, was passed from Witness O to Witness J on that occasion. Witness O called this a nil Inland Revenue return. Witness J told us that he took the time during the meeting on 27^th April not only to make notes of answers but also to make his request as clear as he could. It seems to us that the exchanges on this topic in witness J’s letter, p134/5, witness O’s reply, p141 and witness O’s e mail dated 24 May, p143 all support witness J’s account of the meeting on 27^th April. We accept Witness J’s recollection of the conversation as accurate. We accept that in April and May 2005, Witness O was saying that the appellant had no accounts.

Both witness O and witness J told us during the hearing that the appellant did require accounts within the meaning of Code 16(d). The appellant argued that D1-15, signed off as they are, are adequate for the appellant’s operation. To our surprise, witness J agreed that D1-15 were sufficient and acceptable to the respondent. It follows that the appellant has proved that it did have accounts in compliance with Code 16(d).

This leaves the issue as to whether those accounts were available for inspection within Code 16 in April and May 2005. They were not provided despite what we have found to be a clear and specific requests made on 27^th April, see p132 but also thereafter, see written request p134/5 and appellant’s reply in e mail 19 May p141 and statement in e mail dated 24 May, p143. We find that the accounts were not available for inspection in April and May 2005 and so the appellant was in breach of Code 16.

Code paragraphs 29 & 32. Breach is conceded. Appellant says that it has improved since April 2005.

The respondent’s argument is set out at paragraph 3.4 of her decision and amplified in paragraphs 24-27 in the statement of her witness, J. The appellant’s reply is set out in its reply and witness statement page 3.

The Appellant says that it has improved since April 2005. Witness O told us that the lack of records was the norm. He explained that lack of staff and resources made such necessary. We regard this breach of Code paragraphs 29 and 32 as of particular importance. The real difficulties caused by such absence of records are illustrated by the position in the Repeta and Qureshi cases. We will return to this topic later.

Code paragraph 49. Did the appellant’s behaviour breach this paragraph?

The respondent’s argument is set out at paragraph 3.5 of her decision and amplified in paragraphs 28-35 in the statement of her witness, J. The appellant’s reply is set out in its reply and witness statement pages 3 and 4. The documents referred to as the relevant documents are at pages 63-67, 155-157 & 233-236 and C33-37.

There are separate allegations within this alleged breach.

In his final speech, the appellant argued that Code paragraph 49 should have a purposive interpretation and that proof of a positive act to the client’s detriment is required to prove breach. We disagree. We take the view that breach can be proved by any act or failure to act, deliberate or accidental, which is not in the best interest of the client and/or which does not put the client’s interests before the advisers interests.

Code paragraph 50(a) and (b). Did the appellant’s failure to represent his client on 13^th October and/or his failure to provide 2 medical reports to the client before 13 October 2004 breach this paragraph?

The respondent’s argument is set out at paragraph 3.6 of her decision and amplified in paragraphs 36-39 in the statement of her witness, J. The appellant’s reply is set out in his reply and witness statement pages 5.

Code paragraph 55. Does the evidence show that the appellant does not have the necessary skills, knowledge and competencies to meet its client’s needs and so is in breach of Code 55?

The respondent’s argument is set out at paragraph 3.7 of her decision and amplified in paragraphs 40-60 in the statement of her witness, J. The appellant’s reply is set out in his reply and witness statement pages 5, 6 and 7.

The respondent has issued a Code of Standards, which apply to all persons providing immigration advice or immigration services; the Commissioner’s Rules, which apply to registered advisers and those employed by them; Guidance to Advisers: Competencies (superseded by a second edition: Guidance on Competence) and a Complaints Scheme. Code paragraph 55 in the section of the Code follows a heading ‘Competence’ and is under the subheading Competency. It states that an adviser must have the necessary skills, knowledge and competencies to meet his or her client’s needs. We take the view that the word competencies must refer to competencies as set out in the Guidance to Advisers; competences [sic] and in Guidance on Competence. We take the view that a person may have the necessary competence but may act inappropriately, carelessly, in breach of the code or “incompetently” in the widest meaning of the word but such behaviour does not necessarily prove that such a person does not have competence as set out in the Guidance. It is the difference between a person who is not qualified to do something and a person who has the qualifications but acts incompetently on occasion.

Here, witness O argues that his approach to Domestic violence cases was successful and bases his argument on the Repeta application and appeal and on his success in the Qureshi case.

We take the view that the appellant did its best with the evidence available in the Repeta case. Another adviser may have taken the view that such a case was bound to fail, but that does not mean that it was wrong to try. The client entered the country on 16 December 2000. He had a visa valid from 13 December 2000 to 13 December 2002, C61 last 5 lines. If an application for ILR was made prior to the expiry of his then existing right, then he would have a right to appeal against any refusal of such application. If no application were made until after the expiry of his then existing right, not only would such an application be at risk of refusal but also, if refused, there would be no right of appeal, p270 first few lines of last paragraph. It was therefore important that an application be made before the middle of December 2002. On 27 July 1998, the Home Office had announced what was known as the Domestic Violence concession, p269, last 4 lines. At the time the application for ILR was made in November 2002, there was only that Domestic Violence Concession. On 18 December 2002 paragraphs 289A, 289B and 289C were inserted into the Immigration Rules, E5 top. 289A (iv) refers to such evidence as may be required by the Secretary of State. 289C says that such an application is to be refused if the Secretary of State is not satisfied that each requirement of paragraph 289A is met. The evidence required was as set out in the Home office letter dated 12 August 2003, C13. The appellant made the application and struggled on with what it and the client could gather. Those whose cases appear hopeless to an experienced adviser are not bound to withdraw but are entitled to soldier on in hope. The appellant knew what was required and chose not to draw the lack of evidence to the attention of the IND. It seems to us that the appellant had the competence required. Witness O chose to act carelessly and to keep little or no records. This is incompetence in the widest sense but not, on our strict interpretation, lack of necessary skill, knowledge and competencies as set out in the Code and Guidance.

The Qureshi application. Here the position is somewhat different. The appellant cited Qureshi as an example of a successful domestic violence application. Note of witness O’s answer on 27^th April, p131, No 5. Notes of case made at the time, p110. Witness J raised the topic in his letter dated 3^rd May, p135, 6^th paragraph. Witness O repeated his pride in his conduct in that case, p141, 5^th paragraph from the end. Witness J refers to the reason for the production of the case p140, 3^rd paragraph. Witness J confirmed the position.

The respondents decision letter dated 7 November 2005, p 11, paragraphs 6 & 7 makes it clear that the respondent is saying that that appeal succeeded not on domestic violence grounds which were all rejected but by reason of the Seven Year Child concession policy alone that was identified by the Home office without any help from the appellant. In his statement, page 6^th page, first two paragraphs witness O continued his argument that Qureshi was a good example of a successful application on domestic violence grounds and spoke of an appeal being mounted if that application had not succeeded. It is not clear to us that an appeal would have been available, but that topic was not explored during this appeal. The appellant included some papers relating to the Qureshi case in its bundle, B24-35.

We have only pages B24 to B35. We have not seen any other documents nor have we seen any application for ILR other than the letter dated 10 February 2001, B27. The letter dated 10 February 2001, B27 says that an application for asylum for Mrs Qureshi and her 3 children has failed and seeks ILR for her and the children on 3 grounds, domestic violence, paragraph 4 & 5, suffering from unspecified medical conditions not treatable in Pakistan, paragraph 7 and because of disruption that would be caused to the lives of the children if she is deported, paragraph 8. Mrs Qureshi arrived in the UK on 4^th February 1995, B32. She then had two daughters. She applied for asylum on 16 March 1995 and was refused on 12^th February 1998, p110, top. The 7 year child concession policy was announced on 24^th February 1999, B32. On 4^th February 2002, Mrs Qureshi and her two elder children had been resident in the UK for over 7 years and were therefore entitled to the benefit of that concession. This was to be the sole reason that ILR was granted in May 2003, B32/3.

When witness O was cross-examined on the 2^nd February, and asked if he would have applied under the 7-year child concession policy in the Qureshi case he replied, “I cannot say”. He said that he could not add grounds to an existing application but when asked what Rule said so, he said “I cannot quote the Home Office Rule”. He then said that he had considered the 7-year child concession that he had realised that it applied to Mrs Qureshi as from 4^th February 2002 but he had decided to do nothing about it. He said that he could not remember if he had told the client of her rights under the 7-year child concession nor could he remember if he had discussed it with her. If the appellant did fully appreciate the changed position after 4^th February 2002, it is hard to understand why this was not mentioned in the appellant’s telephone calls of 19/7/02, 19/11/02, 3/3/03 and 28/4/03. B30/1 and why the letter dated 28 April 2003 was phrased as it is.

Witness O continued to regard that case as a good example of a domestic violence application. It was not until the adjourned hearing on 24^th February that he finally conceded that the Qureshi case was of no use as an example of a successful domestic violence case. He then said that at the time that Johnson asked him for an example of a case that had succeeded on domestic violence grounds he had selected Qureshi by mistake and should have chosen another of his cases. He made reference to the cases of Abdulkarim, B1-B10 and Keogh, B11-B23. We have only limited papers for these cases; they were introduced into this Appeal in January 2006 when the appellant served its reply, witness statement and bundle of documents. We do not feel able to form a concluded view as to the appellant’s witness O’s conduct of those case. In any event, Intra Vires, a different organisation, dealt with those cases.

Detailed knowledge of concessionary policies is knowledge required for level 2 and 3 Immigration advisers, See page 11 of the Guidance to Advisers; Competences issued in October 2000.

We take the view that the appellant’s production of Qureshi as an example of a successful domestic violence application coupled with his continued reliance on that case as such an example until he was cross-examining witness J on 24^th February shows that he does not and did not have the detailed knowledge of that policy required of him and did not possess the ability to appreciate the true reason why that application was allowed. His explanation, once he realised that the case was not as he thought it was, that he selected it by mistake on 27^th April 2005 as he was overwhelmed by questions on that day did not impress us. Our view was that witness O may, on occasion, need time to consider his answer but he was not overwhelmed when he appeared in front of us and, with all due respect to witness J and his fellow representative of the respondent, we cannot believe that witness J and/or his companion on the 27^th April interview could, would or did overwhelm witness O. We take the view that he produced the Qureshi case as he believed it was a good example of a successful domestic violence application. We take the view that he remained of that view until he finally realised his mistake on 24^th February. We therefore conclude that in relation to the Qureshi case there is a proved breach of Code 55.

Penalty. Is the decision to withdraw exemption fair and proportionate?

The respondent’s argument is set out at paragraph 3.11 of her decision and amplified in paragraphs 61-89 and 90-108 in the statement of her witness, J. The appellant’s reply is set out in his reply and witness statement pages 7 and 8.

We take the view that the evidence in this case shows a most lamentable state of affairs. The appellant’s may have decided to run on a shoestring but nothing can excuse the lack of records in the organisation. The Repeta case shows how important contemporary records are both for the adviser and for the client. They provide both help and, on occasion, protection for both client and adviser against false allegations. On many issues witness O had to rely on his unaided memory for details of what had occurred in the past. Not surprisingly, his recollection in April and May 2005 differed from his recollection in February 2006. There is no suggestion that he was doing anything other than his best to provide an accurate account of events, but the difficulties faced by an adviser who chooses to keep the bare minimum of records must be obvious to all. Where an organisation has been run in the way that the appellant has run itself, each and every client is at risk. Such an organisation is wholly unsuitable to be entrusted with the future of those seeking immigration advice and/or immigration services. Further, we are of the view that witness O does not presently possess the necessary skills, knowledge and competences needed for a level 2 and/or 3 adviser. Witness O is the only adviser of the appellants and so their exemption must be withdrawn and the appeal is dismissed.

[The proceedings were tape-recorded. Any one who wishes for a transcript can make inquiry of the tribunal and, on payment, receive a transcript of proceedings including the evidence and argument.]

Seddon Cripps.

8^th March 2006. His Honour Judge Cripps.