1
IMMIGRATION AND ASYLUM ACT 1999
THE IMMIGRATION SERVICES TRIBUNAL
APPEAL NO: IMS/2009/3/RCR
Between
KHAN AND COMPANY
Appellant
And
THE IMMIGRATION SERVICES COMMISSIONER
Respondent
DECISION AND REASONS (RULE 24)
THE APPEAL
1. This is an Appeal by Khan and Company, in the person of Mr Sabz Ali Khan (“the Appellant”), against a decision of the Immigration Services Commissioner (“the Respondent”) to cancel the registration of the Appellant as a person qualified to provide immigration advice or immigration services.
2. By virtue of Section 84(1) of the Immigration and Asylum Act 1999 (“the Act”) no person may provide immigration advice or immigration services unless he is a qualified person. By virtue of Section 84(2) of the Act a person is a qualified person if he is registered with the Respondent.
3. The Respondent is directed by Section 83(5) of the Act to exercise her functions so as to secure, so far as reasonably practical, that those who provide immigration advice or immigration services are, inter alia, fit and competent to do so.
4. The Appellant has appealed, by Notice of Appeal dated 24th May 2009, against the decision of the Respondent, dated 1st May 2009, to refuse an application by the Appellant for continued registration and to cancel that registration.
5. The Appellant was first registered at OISC Level 3 on 3rd July 2001. He had last applied for continued registration (for the period 1st May 2007 to 30th April 2008) on 28th April 2007, and that application, together with a previous outstanding application for continued registration (for the period 1st May 2006 to 30th April 2007), were approved by the Respondent on 31st October 2007.
6. The application for continued registration, the refusal of which is the subject of this appeal, was made by the Appellant on 3rd April 2008.
THE APPLICATION FOR SUSPENSION OF THE DECISION UNDER APPEAL
7. In his Notice of Appeal, given in time on 24th May 2009, the Appellant indicated that he wished to apply for suspension of the effect of the Respondent’s decision, as provided for by paragraph 8(2) of Schedule 7 of the Act, and Rule 10 of the Immigration Services Tribunal Rules 2000 (“the Rules”).
8. Pursuant to that application to suspend, the Tribunal granted the application by a decision given on 22nd June 2009.
9. Schedule 8 (1) of the Act provides that a relevant decision of the Commissioner is not to have effect while the period within which an appeal may be brought against the decision is running, and Schedule 8 (2) provides that, in the context of suspension, no effect is to be given to the decision while the appeal is being dealt with.
10. Despite these statutory provisions, the name of the Appellant was removed from the Respondent’s Register of Advisers on 5th May 2009, and was not restored until 13th August 2009.
11. This was and remains regrettable. Manifestly, as the regulatory authority, the Respondent must, and must be seen to, observe rigorously all of her statutory obligations. The Tribunal trusts, and indeed is confident, that there will be no recurrence of this lapse in the customarily high standards of the Respondent.
12. The Tribunal has thought it appropriate to deal with this matter as a discrete matter, and has not taken the matter into consideration in its deliberations as to the merits of the Appeal.
THE HEARING
13. The Tribunal sat to hear the Appeal on 18th and 19th August 2009.
14. The Appellant was represented by Mr Martyn Bowyer, of Counsel.
15. The Respondent was represented by Ms Deepa Patel, of the Office of the Respondent.
16. The Appellant gave evidence on his own behalf.
17. Mr Philip Dodd, Mr Jeremy Dunn and Ms Heather Wetzel gave evidence on behalf of the Respondent.
18. In addition to the oral evidence of these witnesses, in chief and under cross-examination, the Tribunal had the benefit of, and considered carefully, two witness statements of the Appellant, together with those documents submitted by him, and witness statements of Mr Dodd, Mr Dunn and Ms Wetzel, and the substantive bundle of documents submitted by the Respondent. The Tribunal also considered carefully a number of documents requested by the Appellant, and furnished to the Tribunal on the morning of 19th August under the title “Directions Paragraphs 1 to 5”.
19. At the close of the evidence on 19th August, the Tribunal invited Mr Bowyer and Ms Patel to furnish their closing submissions to the Tribunal in writing. Most helpfully they agreed to do so, and the Tribunal received, and has carefully considered, the Closing Submissions on behalf of the Appellant, dated 26th August 2009, and the Closing Submissions on behalf of the Respondent, also dated 26th August 2009, and the Respondent’s Response to the Appellant’s Closing Submissions, dated 2nd September 2009. By letter from Khan & Company dated 3rd September 2009, it was indicated that the Appellant did not wish to make further submissions.
RELEVANT MATTERS PRECEDING THE DECISION
20. As stated above, the relevant application for registration was made by the Appellant on 3rd April 2008.
21. An audit of the Appellant was carried out on 11th August 2008.
22. Prior to this application and this audit, and following previous applications for registration by the Appellant, a number of previous audits of the Appellant had been carried out, most relevantly in 2006 and 2007. These previous audits had given rise to concerns on the part of the Respondent, particularly in respect of compliance with the regulatory scheme in respect of client care, the keeping of records and case management. By reason of these concerns, Identified Issues Reports were sent to the Appellant on 6th July 2006 and 2nd July 2007.
23. Pursuant to the most recent audit in August 2008, a discussion took place between the Appellant and the material representatives of the Respondent during which further serious concerns were intimated to the Appellant, and a letter was sent by the Respondent to the Appellant detailing a number of these concerns on 10th November 2008.
24. No reply having been received from the Appellant to that letter, a reminder letter was sent by the Respondent to the Appellant on 22nd January 2009, and the Appellant did reply to that letter by his letter of 15th April 2009.
THE ISSUES RAISED BY AND IN THE COURSE OF THE APPEAL
25. Although the relevant application for registration was made, and the relevant Notice of Appeal was lodged, in the name of Khan & Co, it was expressly accepted, on behalf of the Appellant, in the course of the hearing of the appeal, that Mr Sabz Ali Khan is a sole trader, and stands solely in the shoes of Khan & Co, and that accordingly he, Mr Khan, is the Appellant.
26. There was in the course of the hearing of the Appeal a matter in respect of which the Appellant was much exercised and concerned in the course of his evidence, and upon which he sought to rely. On the face of the written statement of evidence of Mr Dodd, the previous applications for registration for the periods 2006/2007 and 2007/2008 were granted on 31st October 2008, whilst the letter from the Respondent, following the audit in August 2008, and detailing serious concerns arising from that audit, and intimating a recommendation to refuse the latest application for registration, was dated 10th November 2008. The Appellant accordingly apprehended a remarkably short period of time between a grant of registration and a probable refusal of registration. If those facts were correct, the radical change in attitude in such a short period of time would have been remarkable. The facts were not correct. In paragraphs 12 and 13 of the witness statement of Mr Dodd there were two errors as to dates, which were corrected in the course of the hearing of the Appeal. The grant of the two previous applications for registration for 2006/2007 and 2007/2008 was in fact made, as stated aforesaid, on 31st October 2007. The Appellant’s apprehension was therefore understandable, but unfounded.
27. The relevant decision of the Respondent, on 1st May 2009, to refuse to continue the registration of the Appellant, was based essentially on two areas of concern, the first in respect of (these are the areas identified, and the terms used, by the Tribunal) the “file and case management” of the Appellant, and the “competence” of the Appellant.
28. The letter of the Respondent of 1st May 2009, which communicated to the Appellant that decision, sets out those facts, in respect of material files, cases and behaviour of the Appellant, which relate to those areas of concern upon which the Respondent relied, in coming to her conclusions upon which her refusal of continued registration was based.
29. The Tribunal distinguishes between the facts set out in that letter, and those opinions and conclusions of the Respondent, based on those facts, also set out in that letter. Insofar as the facts themselves are concerned, the Tribunal considers, on the basis of the totality of the material evidence and documents, that those facts are recorded objectively and correctly in the letter of 1st May 2009, and relies, in coming to it conclusions, upon those facts, as well, of course, as its consideration of all those other matters contained in that evidence and those documents.
RELEVANT MATTERS OF LAW AND STATUTE
30. The Tribunal reminds itself of Rule 22 (2) of the Immigration Services Tribunal Rules 2000, which provides that the appellant in appeal proceedings shall have the burden of proving the facts on which he relies.
31. Schedule 6 (3) (5) of the Act provides that: “If the Commissioner considers that an applicant for continued registration is no longer competent or is otherwise unfit to provide immigration advice or immigration services, she must cancel the applicant’s registration.” (The Tribunal’s highlighting.)
32. Schedule 5 (3) (1) of the Act provides that: “The Commissioner must prepare and issue a code setting standards of conduct which those to whom the code applies are expected to meet.”
33. Schedule 5 (3) (4) of the Act provides that: “It is the duty of any person to whom the Code applies to comply with its provisions in providing immigration advice or immigration services.”
34. As provided for by the aforesaid Schedule 5 (3) (1) of the Act, the material code is the Code of Standards, incorporated in that booklet known as “The Commissioner’s Rules and Code of Standards”, (‘The Code”) which came into effect on 2nd July 2007.
THE CONCLUSIONS OF THE TRIBUNAL
35. The Appellant was, at all material times, under a statutory duty to comply with the provisions of the Code.
36. The Appellant accepted, in the course of his evidence, that he had signed a declaration in his continued registration application form that he would abide by and adhere to the Respondent’s Rules and Code of Standards.
37. The Tribunal considers that the core of the Appellant’s case is set out in paragraphs 2.3 and 4.13 of the Closing Submissions made on his behalf, in respect of proportionality, and the flexibility of the Regulatory Regime advocated on the Appellant’ behalf in the context of his specific circumstances.
38. With regard to the “file and case management” of the Appellant, the Tribunal considers that those facts, set out in pages 3, 4, 5 and the first three paragraphs of page 6 of the decision letter of 1st May 2009 under the headings “Client care” and “Record keeping, attendance notes and clarity of files”, do establish a significant number of substantive breaches of the Code (of Codes 11, 33 and 35, and of Codes 7, 34 and 81).
39. The Tribunal considers that, in coming to her decision as to continued registration, the Respondent was entitled to have regard, not only to these breaches, but to those concerns in respect of failures to comply with the Code which became apparent in 2006 and 2007.
40. The Tribunal considers that the Respondent was entitled to have regard to the entirety of the history, as a registered person, of an applicant for continued registration. That history comprises, in addition to previous applications for registration and audits connected therewith, the result of any complaint made against the Appellant. In the context of this Appeal, the Tribunal considers that the Respondent was entitled to have regard to (the Tribunal’s term) “the Rydderch complaint” and the determination of that complaint.
41. With regard to those concerns of 2006 and 2007, it was asserted firmly in evidence by the Appellant that he did not receive the aforesaid Identified Issues Reports of 6th July 2006 and 2nd July 2007, nor did he receive the aforesaid letter from the Respondent of 10th November 2008. Having regard to all of the evidence given in respect of this matter, the Tribunal considers that it is not plausible that the Respondent did not receive any of these documents, and in particular considers that it is highly probable that he did receive the Identified Issues Report of 6th July 2006. This is a matter of concern for the Tribunal, in the context of its scrutiny of the validity of the decision of the Respondent in respect of the competence and fitness of the Appellant.
42. The Tribunal considers, in brief terms, that the Appellant had a firm view that he need not comply with all of the provisions of the Code, in respect of “file and case management”, in the context of his relatively limited practice and of his perception of his success in that practice. The Tribunal rejects that view, and accepts that the Respondent is entitled, and indeed bound, to place a high importance on compliance with the Code on the part of every registered adviser. The Appellant had a statutory obligation to comply with the Code, and has failed, with regard to the matters set out above in respect of “file and case management”, so to do.
43. So far as the “competence” of the Appellant is concerned, the Tribunal considers that there were, in the course of the hearing of this Appeal, two relevant matters. These were (the Tribunal’s terms) the “competence of advice” and “the Continued Professional Development (“CPD”) and level three assessment” matters.
44. With regard to the “competence of advice”, the Tribunal considers again that, so far as the review, in the context of competence, of seven case files during the audit of 11th August 2008 is concerned, the facts are set out objectively and accurately in pages 8, 9, 10 and 11 of the decision letter of 1st May 2009.
45. The Tribunal recognises that the analysis of the competence displayed in the cases which were the subject of these file was retrospective and carried out with the benefit of hindsight. The Tribunal recognises also that the Appellant, a man of considerable experience in his field, was satisfied with his level of success in those limited categories of cases which he undertook (although the Tribunal notes that in a number of those cases, the decisions of which the Appellant has placed before the Tribunal, the Appellant was represented by Counsel or there was no appearance for the Respondent). Nevertheless, the Tribunal considers that the facts revealed during the aforesaid analysis do disclose justifiable grounds for concern as to competence in each of the files analysed, and accordingly for significant concern in respect of the competence of the Appellant in providing immigration advice and services. The Tribunal considers also in this regard that the Respondent, in arriving at her decision in the context of “competence of advice”, was entitled to take into account the relevant history of the Appellant as an adviser in respect of previous audits and of the determination of “the Rydderrch complaint”.
46. In respect of “the Rydderch complaint”, the Tribunal records its view that the evidence during the hearing of this Appeal disclosed no failure of objectivity, nor any material conflict of interest, with regard to the manner in which the complaint was investigated or determined. The Tribunal had particular regard to the evidence of Mr Dunn, and considered that he was an eminently satisfactory witness.
47. As to CPD, the Tribunal notes the obligation of registered advisers to undergo a stipulated number of hours of CPD training per year, and considers, on the basis of the evidence heard and documents considered, including the oral evidence of the Appellant in this respect, that the Appellant had indeed failed to provide to the Respondent, by 1st May 2009, any evidence that he had undergone a satisfactory amount of CPD training. The oral assertions of the Appellant at the hearing, unsupported by documentary evidence, were unsatisfactory in this regard.
48. As to the Level 3 assessment, partially undertaken by the Appellant in the course of the audit on 11th August 2008, the Tribunal has noted the evidence as to the illness of the Appellant, but has noted also his failure to inform the auditors of his illness prior to undertaking the assessment and, in noting the subsequent failures of the Appellant to re-sit the assessment and taking into account the assertion of continuing illness, has noted also the Appellant’s assertion in the course of his evidence that he believed that, no matter how he might have performed during an assessment, he would have been failed if Mr Dunn had been marking that assessment, an attitude for which the Tribunal considers there was no justification. In coming to its conclusions, the Tribunal has not taken into account the actual performance in the partially undertaken assessment, but has taken an overall view that the Appellant’s attitude to the necessity for, and validity of, the assessment is unsatisfactory.
49. The Tribunal has noted the history of very considerable antipathy demonstrated by the Appellant towards the Respondent and her officers (though it is gratified that all courtesies were observed during the course of the hearing of this Appeal). The Tribunal recognises that a not insignificant source of this antipathy must be the belief of the Appellant, which may be genuinely held, that the regulatory regime of the Respondent and the manner in which it is administered, is oppressive, and disproportionate to his personal circumstances and the nature of his practice. The Tribunal emphasises that the existence of this antipathy has not adversely influenced its consideration of this Appeal, but wishes to record its view that there is no justification for the aforesaid belief of the Appellant. The Tribunal reiterates that the Respondent has a statutory regulatory role, as aforesaid set out, and that advisers, all advisers, have a statutory obligation to comply with the material regulations. There is in law no basis for any qualification or dilution of that obligation. The Tribunal recognises that the Respondent is obliged in law to act reasonably, and considers that in this case she has done so in accordance with the provision that she must cancel the registration of an adviser whom she considers no longer competent or otherwise unfit to provide immigration advice or services.
50. The Tribunal considers that, cumulatively, the failures in respect of compliance with the Code, both in terms of “file and case management” (in which regard there were manifestly significant and substantive failures) and of “competence” (in the latter regard comprising failures with regard to “competence of advice”, and unsatisfactory behaviour as to “CPD and level 3 assessment”) justify the decision of the Respondent to cancel the Appellant’s registration.
DECISION
The decision of the Tribunal is to dismiss this Appeal.
David Hunter QC
22 September 2009