Tijan Badou Sarr T/a Bakau Legal Chamber v Office of the Immigration Services Commissioner

Background.

By application dated 7^th June 2006, Tijan Badou Sarr, the appellant, applied to the Immigration Services Commissioner, the respondent, for registration at level 3 in categories 1 to 6 inclusive. By decision dated 4^th October 2006, the respondent refused to register the appellant at level 3 and registered the appellant at level 1 in categories 1, 2, 3 and 4 only.

By notice of appeal received on 23^rd October 2006, the appellant appealed the respondent’s decision. The grounds of Appeal read “I have a conscientious objection to the way discretion was exercised. I consider that discretion should have been exercised differently. I have requested to re-sit the level 3 exams which was denied.”

With letter dated 9^th November 2006, the appellant requested directions. The tribunal served the application upon the appellant and invited him to make representations within 14 days. None were received. I made directions dated 29^th November 2006.

The respondent served Notice in Reply dated 17^th November 2006.

The Hearing.

The hearing was listed to commence at 10.00 am on 22^nd January 2006 at Procession house, 55 Ludgate Hill, London EC4M 7JW. The appellant telephoned to say that he would be late. The hearing started at 10.30 am.

The appellant appeared in person and represented himself.

The Respondent was represented by Ms Deepa K Patel.

The chair explained the procedure to all those present.

The appellant was asked if he intended to call any witnesses. He said that he did not.

The appellant was asked to open his case. He seemed at a loss so the Chair took him through his application dated 7^th June 2006 [Bundle pp34-67]; his level 1 assessment [Bundle pp75-81]; his level 2/3 assessment taken on 26^th July 2006 [Questions, Bundle pp82-84; answers Bundle pp85-94]; the feedback [Bundle pp118-120]. The appellant referred us to his letter dated 8^th September 2006 and enclosures [Bundle pp125-139]. This included a request for an opportunity to re-sit the level 3 assessment. The decision letter dated 4^th October [Bundle pp4-8] and his notice of appeal dated 18^th October 2006 [Bundle pp2 & 3].

The appellant was reminded that he had served no statement as ordered by directions dated 29^th November nor had he served any Bundle of documents. He was asked to amplify his grounds of appeal as set out in paragraph 6 of his notice of appeal [Bundle page 3].

He said that he was concerned that if he did not appeal, he would forfeit the £1700 that he had paid for registration at level 3. He said that he wanted to challenge the decision that he was not competent at level 3; to challenge the consideration given to his documents because it had not been fair; to challenge the administrative process. He said that the assessment of his answers to the level 2/3 assessment was unfair. He said that the question set was unfair. He said that when he said in his Notice of appeal that he considered that Discretion should have been exercised differently, he was saying that the assessment itself was unfair as was the administration process leading to the decision to refuse him level 3 accreditation. He said that one of the letters had not been given his postcode so it arrived 14 days late. He said that he had been told that the process would take 4 months. He said that the evidence that he provided was not properly considered. He said that the respondent got the date on his Swedish Certificate wrong. He said there were other matters but he would wait until the topic of legal privilege arose.

It was clear that the appellant wished to raise a whole series of issues that were not set out in his notice of appeal. He had failed to follow the Rules and my directions dated 29^th November. The tribunal decided to retire to discuss the position.

We returned. I asked again if the appellant would give evidence on oath or affirmation. I explained what this meant. He then affirmed and confirmed that any evidence that he had given was true.

He was cross-examined by Ms Patel. He agreed that some of his concerns were not raised in his documents. He was taken to his letter dated 8^th September 2006 and the enclosed documents. Bundle p 127; he said that he was working for Olubi, solicitors. He was given the papers on the day of the hearing. He said that after this decision, a death certificate was obtained and an appeal was allowed. When asked where the appeal was heard; he said Croydon. He did not know when. The appeal was heard by the AIT. Bundle p132; he said he had attended on behalf of the solicitor. Bundle p133; he did not attend. Bundle p134-136. He did not attend any of these courses. Bundle p137/8; he did not join ILPA. He said that Swedish law was synonymous with English Law. When asked for his complaint about the level 2/3 assessment, he said he complained about the question and the way it was marked.

The respondent called witness K. She was sworn and her statement was read as evidence in chief. Cross-examined, she agreed that Bundle page 109 had no postcode. Asked about the £1700 Fee, she said that the fee was normally not refundable. Bundle p38, top paragraph refers. She told us that she would check the candidate’s answers against model answers and check resources and conduct research when necessary. Asked about question 2d [Bundle p84/92/119] she said that it was worth only 2 marks and the power requested was in the rules, not in the instructions. Asked about pass level, she said there is no strong line because you can get points for factual decisions that can be looked up and such factual answers would not necessarily give a guide as to experience. She said that the level was about 60% correct. Those above would normally pass, those below would normally fail. Asked the appellant’s marks she said he obtained 8 or 9 marks out of 28, i.e about 26-31%.

The Tribunal asked why the appellant was asked to undertake more training before he would be allowed to resit. The witness said that an applicant who failed an assessment would be asked to show some commitment to improvement before he/she would be allowed to resit an assessment. Asked why, the witness said that otherwise, he/she could ask to resit on a weekly basis. Asked why this could not happen, the witness said that resources would not allow this and referred the tribunal not only to the expense of setting up the assessments at level 2.3 [Bundle page 106] but also the time taken by each caseworker to mark and produce feedback on each test. She said that with a good candidate, who clearly passed, she would take over an hour to mark and produce feedback but with a poor candidate, it would take her up to 4 hours to complete the marking and produce feedback. The witness said that the respondent currently runs four 2 hour sessions over 2 days [2 sessions a day] each month. Each session has 6 candidates in the same room with an invigilator. Thus about 24 assessments take place each month. As from 1^st April 2005, all advisers, both new and existing are to be assessed, see Bundle page 98. She marks and assesses about 5 such assessments a month.

The appellant asked her if she remembered him telling her that he was nervous about the assessment. She could not.

We adjourned for lunch.

We sat again at 1400.

The respondent argued that the appellant had failed to comply with the rules, had raised new matters without notice during the hearing and had produced no evidence to support his appeal.

The appellant argued that he had a right to express himself and a right under article 6 to a fair trial. He had a right to take his case to the tribunal. He said that he had been in this country for 3 years. He said he came as a lawyer from another country. He explained that he had considered registering with the Bar council or the Law society but as he wanted to practice in Scotland as well he had chosen the respondent. He said that he was not in the correct state of mind when he took the level 2/3 assessment. He said that he had been waiting 3 months for an appointment at hospital and, on the way to the assessment, he had stood up on a bus to let an elderly woman have his seat and had hit and hurt his eye on a strap in the roof of the bus. He said he came from the Gambia and had moved to Sweden. When asked by the tribunal, he said that he had provided immigration services for a few months in Autumn 2004 after his arrival in the U.K. [Bundle p147, dated 25 October 2004]. He had then worked for Olubi for 3 months in the summer of 2005. This was the extent of his experience in immigration matters in the U.K.

We retired to discuss the matter and reach our decision.

Decision.

The appeal fails and is dismissed.

Reasons.

The respondent registered the appellant with limited effect in accord with section 85 and Schedule 6 of the Immigration and Asylum Act 1999. The appellant appealed in accord with Section 87. Rule 22(3) of Immigration Services Tribunal Rules 2000 says that the appellant shall have the burden of proving facts upon which he relies and proof shall be on the balance of probabilities. The appellant produced no evidence to suggest that the procedure followed in relation to the assessments under level 1 and level 2/3 were unfair in any way nor any evidence to suggest that the respondent’s decision to register him at level 1 alone was unfair and/or incorrect. There was no evidence to suggest that the process leading to the decision to register with limited effect was wrong or unfair in any way. Having seen and heard the appellant, noticed his refusal to follow the rules and directions and his limited experience in this country [2 months in Autumn 2004 on his own and 3 months in summer 2005 as a caseworker for Olubi, solicitors] it is clear to us that he needs more training before he could qualify above level 1. The appellant raised his Article 6 rights. We took full account of all his submissions; we allowed him to expand his grounds of appeal during the hearing and gave him every opportunity to advance his case. There was no breach of article 6.

Comment.

We were concerned at the way the application for a resit was dealt with. We can understand that there may be many matters to be taken into account when deciding the respondent’s approach to resits, particularly resits of level 2/3 assessments. The appellant was faced with a high hurdle to clear before being allowed to resit an assessment, namely evidence of completion of a course provided by a recognised trainer such as JCWI, and was only offered a resit of a level 2 assessment.

We understand that the respondent has a new assessment programme [Bundle page 98]. We think it would be better if the policy for resits for those who fail level 2/3 assessments could be made clear to those who take the assessments at a much earlier stage in the process. We note the wording in 2^nd and 3^rd paragraphs of the respondent’s letter, Bundle page 99, but this only applies to level 1 assessments. We feel that the policy for resits for level 2/3 assessments and the reasons for the policy should be made available to all so that all may know of it as early as possible.

We appreciate that this detailed topic was not made clear in the notice of appeal and the appellant’s refusal to comply with the rules and directions meant that the matter only arose on the day of the hearing. Indeed, the questions in relation to it were asked by the tribunal, not the appellant. This resulted in the respondent having no warning that such an investigation was to occur and no chance to fully prepare for such an investigation. Further and in any event, the offer of a resit is a matter for the respondent and, on a strict interpretation of the Immigration and Asylum Act 1999, nothing to do with this tribunal.

Seddon Cripps.

30 January 2007 HH Judge Cripps..