Case No: IMS/2013/5/RCR.
IN THE FIRST TIER TRIBUNAL GENERAL REGULATORY CHAMBER
(IMMIGRATION SERVICES)
BETWEEN
ABDUL HYE AL-MAMUN t/a MARSHLAND LAW ASSOCIATES
Appellant
-v-
THE IMMIGRATION SERVICES COMMISSIONER
Respondent
Before:
Judge Brian Kennedy QC
Mr Martin Hoare
Mr Mahmud Quayum
Sitting at:
Victory House
30-34 Kingsway
London
WC2B 6EX
Hearing Dates: Thursday 30th and Friday 31st May 2013
DECISIONS AND REASONS
1. The appeal is dismissed on the merits.
INTRODUCTION
2. This is an appeal under Section 87 (2) of the Immigration and Asylum Act 1999 (“the Act”), in which Abdul Hye Al-Mamun t/a Marshland Law Associates, “the Appellant” appeals the Decision of the Immigration Services Commissioner, wherein “the Respondent” refused to continue registration of the Appellant by the Office of the Immigration Services Commissioner.
3. The Act (Part V) makes provision for a scheme to regulate immigration advisers and service providers. Schedule 5 to the Act makes provision for the Respondent to make Rules (“the Rules”) with regard to the professional practice, conduct and discipline of registered advisers and their employees or those supervised by them in connection with the provision of immigration advice or immigration services. It also enables the Respondent to publish a Code of Standards regarding the conduct of persons providing immigration advice or immigration services “the Code”.
4. The “relevant decision” within the meaning of the Act is the Decision of the Respondent of the 10th January 2013 to refuse the Appellant’s application received by the Respondent on the 30th May 2012, to continue registration. The Respondent’s decision was made pursuant to Section 83 (5) and Paragraph 3 of the Act and the issue is whether the Respondent was entitled to conclude that the Appellant’s application for continued registration should have been refused.
5. The Respondent in reaching her decision will have had regard to the following as do this Tribunal:
(a) The statutorily imposed general duty to promote good practice by those who provide immigration advice and services under Section 85 (5) (a-d) of the Act which provides, inter-alia, that the Respondent must exercise her functions so as to secure, so far as is reasonably practicable, that those persons who provide immigration advice or immigration services are fit and competent to do so, that they act in the best interests of their clients, that they do not knowingly mislead any court, tribunal or adjudicator in the United Kingdom and do not seek to abuse any procedure operating in the United Kingdom in connection with immigration or asylum.
(b) Paragraph 9 (1) of Schedule 5 to the Act provides as follows; “On determining a complaint under the complaints scheme, the Commissioner may:- (a) If the person to whom a complaint relates is a registered person or a person employed by, or working under the supervision of, a registered person, record the complaint and the decision on it for consideration when that registered person next applies for his registration to be continued”.
(c) If the Commissioner considers that an applicant for re-registration is no longer competent or is otherwise unfit, she must cancel the applicant’s registration (Schedule 6(3)(5) of the Act. )
(d) The burden is on the adviser to satisfy the Commissioner that he is fit and competent to provide immigration advice and services, and that he continues to be so.
(e) In an appeal against a decision under Schedule 6 (3)(5), it is for the Appellant to show that the Commissioner’s decision was wrong.
REASONS
The background to this appeal can be found in the Respondent’s decision letter of the 10th January 2013.
The Decision was taken for five main reasons according to the Respondent in their submissions as follows:
Acting beyond their levels of competence (Code 6, 20)
Submitting unmeritorious applications without explaining to clients the risks of doing so or the merits of their case (Codes 11, & 18).
Failing to maintain adequate resources.
Failing to provide the client with adequate written information regarding their case.
Failing to maintain adequate records, including financial records.
By consent between the parties, the matter was listed for a hearing on the papers on the 30th and 31st May 2013. The Tribunal had considered the voluminous papers carefully and decided unanimously that they required to hear confirmation from the respondents on the authenticity of all the original documentation and records from the case worker who had recommended the decision herein. The case worker was sworn and identified and confirmed the authenticity of all original documentation on which the impugned decision had been made. The Tribunal did not question the case worker on the merits and there was no evidence given on the merits. Having then considered the papers in this matter we, on the balance of probabilities, refuse the appeal on the merits.
On balance we do not accept that the Respondent has made a case against fitness of the appellant. The Tribunal find that there is no evidence of any deliberate attempt to deceive the authorities or of dishonesty on the part of the Appellant.
In relation to Competence however, while it appears that the applications submitted to the UKBA are applying the correct rules and procedures, there are many significant shortcomings in file management. By way of example, there were no records or very minimal records of instructions or advice on merits. Generally records of correspondence or telephone calls were not kept on file. After careful scrutiny of the records available, we were, on balance, unanimously satisfied that the appellant is not competent and on these grounds alone refuse this appeal.
The Failure to record advice and instructions.
The Respondent argues that the Appellant was in breach of a number of Rules and Codes as referred to at Paragraph 10 above. The recording of advice and instructions, and the communications of that advice to the client are governed principally by Rule 16, Code 7, Code 11 and Code 33.
Rule 16 states: “A registered adviser must keep clear written records of all advice given, all work done, all transactions made on behalf of each of their clients and all fees paid by each client ----“.
Code 7 states: “An adviser must keep a clear written record of all advice given, all work done, all transactions made on behalf of each client and all fees paid by each client, where fees are taken. Such records should be available for inspection by the Commissioner.”
Code 11 states: An adviser must ensure that the client receives a full explanation, using an interpreter to explain if necessary, the implications of their position and any proposed course of action. The advice and any instructions must be confirmed in writing.”.
Code 33 states: “Having agreed to act for the client and prior to undertaking substantive work, an adviser must explain to the client in a client care letter the following: Details of the services and the individual advisers responsibilities as agreed with the client. These details must make clear what instructions were taken, what advice was given and what action was agreed upon: and a copy of the client care letter must be retained in the client’s file. Advisers must ensure, as far as reasonably practicable, that this copy is signed and dated by the client.”.
The Respondent’s argues that the Appellant’s failure to comply with these Codes and Rules is clearly demonstrated in the audit report resulting from the audit of 27th June 2012, rescheduled to the 10th July 2012 resulting in the Identified Issues Report dated the 17th July 2012.
The principal Codes addressing competence are 4, 17 and 18.
Code 4. “All advisers must satisfy the Commissioner that they are fit and competent to provide immigration advice or immigration services and that they continue to be so”.
Code 17: An adviser operating at any given level of activity and category must have the relevant knowledge, competencies, resources and information sources as set out in the most recently published version of the Commissioner’s Guidance on Competence.”
Code 18: “An adviser must have and continue to have the necessary skills, knowledge and competencies to meet their client’s needs, and must satisfy the Commissioner of this via the processes and systems approved by the Commissioner for this purpose.
The Tribunal requested that the Respondent require the caseworker to attend to identify and confirm the authenticity of all documentation in the Trial bundles.
While we recognise the livelihood of the Appellant is at stake, we make the following observations on the competence of the Appellant. Immigration advisers fulfil an important role. They are required to deal with vulnerable clients who often do not have experience with the English legal system. The relevant law can be complicated, as can the factual basis of each case. The decision made can have a profound effect on the client’s status in the UK. As a result it is important that advisers are competent and that clients are fully informed. On the evidence at this hearing we are satisfied that the Appellant failed to establish that the Respondents assessment of his competence was wrong. Further we are satisfied that the Appellant was not competent in all the circumstances.
The Tribunal attaches significant weight to the Appellants lack of documentary evidence records of notes of instructions from and advice to clients.
The unanimous decision of the Tribunal was to dismiss the appeal.
Signed:
29th July 2013.
Brian Kennedy QC
Chairman