IN THE FIRST-TIER TRIBUNAL
IMMIGRATION SERVICES Case No. IMS/2009/006/RCR
GENERAL REGULATORY CHAMBER
ON APPEAL FROM:
Immigration Services Commissioner’s Decision
Dated: 16th September 2009.
Appellant: APNA IMMIGRATION ADVICE AND SERVICES
Respondent: IMMIGRATION SERVICES COMMISSIONER
Heard at:Victory House, 30 – 34, Kingsway, London WC2B 6EX
Date of hearing: 21st & 22nd January 2010
Date of decision: 28th January 2010
Before
Mr. B. Kennedy QC (Chair)
and
Mr. Mahmud Quayum
and
Mr. Martin Hoare
Attendances:
For the Appellant: No appearance.
For the Respondent: Mr Tom Cawcutt.
Subject matter: Appeal against Refusal to Continue Registration.
Cases: None
IN THE FIRST-TIER TRIBUNAL Case No IMS/2009/006/RTR
GENERAL REGULATORY CHAMBER
DECISION OF THE FIRST-TIER TRIBUNAL
This Tribunal refuses the Appeal
BACKGROUND AND EVIDENCE.
1. The Immigration and Asylum Act 1999 (“the Act”) sets out the means of establishment of a scheme to regulate immigration advisers and service providers. Under the scheme, the provision of immigration advice or immigration services will be prohibited unless a person is registered with the Office of Immigration Services Commissioner (“the Respondent”), authorised to practice by a designated professional body or exempt under the terms of the scheme or Act. The Respondent has a duty to ensure that those who provide immigration advice or immigration services are competent to do so and the Respondent has power to register or refuse to register applicants at various levels of competence to provide immigration advice or services.
2. This is an appeal by APNA Advice and Services (“the Appellant”) under Section 87 (2) of the Act. Mr. Muhammad Shakoori is the adviser for the Appellant and effectively is the Appellant. The “relevant decision” within the meaning of that section is the decision of the Respondent of the 16th September 2009 to refuse the Appellant’s application for re-registration. The Respondents decision was made pursuant to paragraph 3 of Schedule 6 to the Act.
3. This Tribunal have been supplied with a comprehensive paginated Hearing Bundle and reference to the page numbers will be made herein. The Relevant Decision (pages 1 to 10), the Notice of appeal (pages 11 to 18) together with all relevant correspondence and documents relating to the issues herein are included therewith. The Respondent has also supplied an index of the Documents to be relied on by the Respondent, a Chronology and a Skeleton Argument. In addition to his Notice of Appeal, the Appellant has supplied various correspondence, faxes and “A Letter Before Claim”.
4. The relevant decision was sent to the Appellant by way of a detailed and comprehensive ten page letter setting out the reasons for her decision. The relevant headings in that letter include: The Applicable Law, Matters to be taken into account by the Commissioner, Compliance with the Commissioner’s Codes of Standards, The Commissioner’s Conclusion on the Application and the Commissioner’s conclusion.
5. The matters raised in the relevant decision letter are responded to in detail by the Appellant in his Notice of Appeal signed on the 1st of October 2009. This was received by this Tribunal on the 8th October 2009 and a copy sent to the Respondent. The Notice of Appeal included an application to suspend the respondent’s decision pending the hearing of an appeal. That application was refused by this Tribunal on the 19th October 2009 (see decision of His Honour Judge The Lord Parmoor (pages 45 and 46).
6. This appeal was listed for hearing on the 21st and 22nd January 2010. On the 8th January 2010 the Appellant sought to adjourn the hearing of this appeal and on the 12th January 2010 this Tribunal issued directions in relation to the application to adjourn and notified both parties. The application to adjourn was dealt with in accordance with those directions on the 21st January 2010. The Respondent attended before this Tribunal on the 21st January but the appellant failed to attend the hearing. This Tribunal refused the application to adjourn generally and gave its reasons in writing on the 21st January 2010 which were communicated to the Appellant, and then adjourned to the 22nd January 2010 for the substantive hearing.
7. The Appellant also failed to attend the hearing on the 22nd January 2010. This Tribunal considered the absence of the Appellant at the outset and decided to continue with the hearing of the substantive appeal for the following reasons:
a) The Appellant acknowledged receipt of the communication of the 21st January 2010. It had been sent to him on the morning of the 21st January 2010 by e-mail with the attachment of the written decision to refuse the Appellant’s request for an adjournment. The Appellant however asserted that he had only received the first page of the attachment. On balance, in the absence of a credible explanation for failing to receive the second page of an attachment, we do not accept this assertion.
b) He also indicated that he had not been well for a number of days due to his ongoing diabetic condition. Despite earlier communications and requests for an adjournment he had not indicated he was not fit to attend. Despite this indication that he had been unwell for a number of days, he did not however present any medical evidence to indicate he was not fit or able to attend.
c) The papers illustrate a clear history of prevarication on the part of the Appellant.
d) The Respondent was present with witnesses and legal team and the cost to the public purse of an adjournment would be significant.
e) The substance of the arguments and evidence supplied by both parties in the voluminous hearing bundle indicated to us that in any event the Appellant would be unlikely to succeed in this appeal as there was an overwhelming case in support of the relevant decision.
8. The Appellant made an application for registration on the 21st march 2007 and was granted registration at level 1 in the categories of Asylum, Entry Clearance, Leave to Enter or Leave to Remain, Nationality and Citizenship and EU and EEA Immigration Law.
9. On the 12th August 2008 the Appellant applied for continued registration at level 3 in all categories and submitted an additional three competence statements for the registration of Mrs. Neer Ali Oun, Mr. Ali Oun and Mr. Ihtisham Hussain.
10. On the 22nd September 2008 the Appellant undertook a written competence assessment at level 3 in the category of Leave to Remain.
11. On the 30th October 2008 he was provided with written feedback of his level 3 assessment and was informed that he had not satisfied the Respondent that he had the necessary skills and knowledge to provide immigration advice at level 2 or 3.
12. On the 10th December 2008, the Respondent wrote to the Appellant and informed him that an audit would take place on the 19th January 2009. The Respondent confirmed that an assessment would take place of the policies and procedures as well as an assessment of the adviser competence in the delivery of immigration advice and services. The Respondent also advised that a level 1 assessment would be carried out on Ali Oun, Ihtisham Hussain and Mrs. Neear Ali Oun. A subsequent Fax was sent on the 16th January 2009 confirming the premises audit to take place on the 19th January 2009.
13. On the 15th January 2009 the Appellant sent a fax to the Respondent and stated “we request that the scheduled audit of the 19th January 2009 may kindly be postponed until we have completed a year in business i.e. 28th April 2009” (our emphasis).
14. On the 16th January 2009, the Respondent wrote to the Appellant and confirmed that she was unable to approve the outstanding application for continued registration as she had concerns with regard to the Appellant’s fitness and competence to continue to practice as a level 1 adviser. The Respondent confirmed that the purpose of the audit was to look at the Appellants policies and procedures and review case files. The Respondent confirmed that she would reschedule the audit for the 11th February 2009.
15. On the 4th February 2009, the Appellant sent a Fax to the respondent and stated: “I have already explained my position and with reference to that it is not possible for me to accept a date for a premature audit. Therefore I request again that this audit of the 11th February 2009 may be postponed until the annual audit becomes due on the 28th April 2009. I hope you will not ignore my request.” (Our emphasis).
16. On the 5th February 2009, the Respondent wrote to the Appellant and reiterated that the purpose of the arranged audit was to verify fitness and competence
17. On the 10th February 2009, the Respondent telephoned the Appellant and requested a list of open case files to review at audit.
18. On the 10th February 2009, the Appellant sent a fax to the Respondent informing her of the following: This is to inform you that on 17th December 2008, we were in the process of shifting our office from our previous place that is 235 Wilmslow Road, Manchester. At night, we have to leave some goods as well as our office and client files in my car registration number JJ43FES as I could not find a person to help me unload my car during the late hours in the evening. Unfortunately, during the same night my car was stolen which was reported to the police. The car met an accident while being driven by the thieves. The people who stole the car took everything from it and we have no knowledge of a huge amount of office record including office and client files which were there at the time the incident took place. The police later informed us on the phone that the car met a serious accident, it was badly damaged and scraped later on.” (Our emphasis). The Appellant provided the Respondent with a list of five case files that could be reviewed at audit.
19. On the 11th January 2009, the caseworker engaged by the Respondent conducted an audit of the business of the premises of the Appellant. During the audit several identified issues were raised with the Appellant with regard to client confidentiality, records of advice given and failure to produce financial records and accounts. The Appellant also failed to inform the Respondent of their stolen files within 10 working days in accordance with Code 5 of the Commissioner’s Code of Standards which states: “All advisers and/or those in actual control of a regulated advice organisation must notify the Commissioner of any significant changes in their personal or business circumstances within ten working days of those change’s occurring.”.
20. The caseworker confirmed that she was unable to verify competence due to the limited number of case files available and that those files reviewed covered limited aspects of level 1 (application for residence cards and travel documents). However the caseworker did raise concern with regard to the Appellants operating beyond the level of competence approved. This was noted in paragraph 4 of the Identified Issue Report dated 1st May 2009, which was in turn sent to the Appellant.
21. The caseworker also raised concern with regards to the Appellants failure to provide evidence of client care letters issued and records dealing with the client. All four case files reviewed, showed no evidence that the adviser had written to the clients informing them of the progress of the application or in deed confirmed to the client that an application had been made to the Home Office on their behalf. There was an absence of detailed written instructions taken from the client, absence of detailed attendance notes/telephone notes and no evidence of advice confirmed in writing to the client.
22. The caseworker was also unable to view evidence that the clients had been issued with receipts from the Appellant for monies paid. These issues were highlighted in the Identified Issues Report dated the 1st May 2009 sent to the Appellant on the 18th May 2009.
23. The Respondent is not satisfied that the Appellant is fully competent to work at level 3 due to the results produced from the competence assessment undertaken on the 23rd September 2008. The test raised issues with regard to his understanding of DP3/96(a) and its significance. His answers showed he was yet to acquire the ability to identify and use appropriate sources of up to date information in order to keep abreast of, amongst other things, UKBA practice in the consideration of cases. He also failed to detail the importance of proportionality and failed to identify the relevant case law.
24. In addition to the report of the 1st May 2009, the Respondent wrote to the Appellant on the 20th July 2009 and addressed her concerns with regard to the Appellants advertising their services in the category of Detention and Bail Applications (level 2 work) in the monthly issue of “Roshan Kainat International” in the months of May, July and September 2008.
25. The Respondent provided the Appellant with copies of documents which indicated that the Appellant had been working beyond his level of registration (level 1) and the work conducted on these files raised concern with regard to his fitness to remain within the Commissioners scheme.
26. The Respondent has obtained a statement dated 9th June 2009 from Mr. Paul Cruthers, an Immigration Judge sitting at the Manchester Asylum and Immigration Tribunal (AIT) in which it is alleged that the Appellant made repeated attempts to appear before him when he was not qualified to do so.
THE ISSUES IN THE SUBSTANTIVE APPEEAL:
27. The Issues are to be found clearly set out in the Appellants relevant decision (pages 1 -10), the Appellant’s Notice of Appeal (pages 11 -18) and the Appellant’s Notice in Reply (pages 47 – 67).
28. This Tribunal will identify only some of the issues that are the subject matter of the relevant decision. It is our considered view that these pertinent issues, irrefutably on the papers, determine that the Respondent was correct to refuse the Appellant’s application for re-registration.
29. The Appellant challenges the relevant decision alleging it is not impartial, fair or transparent. He further argues inter-alia that the Respondent does not let independent external institutions to be involved in the entire process for certification of qualifications and there is no guarantee or a regulatory mechanism in place that ensures that its caseworkers are suitably qualified to assess and certify the qualifications of a candidate.
30. The Appellant argues that the audit conducted by the Respondent was premature, being carried out before he had been one year in business.
31. The Appellant argues that he was not required to report the theft of his files and documents to the Police until ten days after the police investigation was concluded.
32. The Appellant argues that the allegation that the he had worked above level 1 of his registration is not proved by the mere presence of a document entitled “Grounds of Appeal” found on the Appellant’s computer.
33. The Appellant states that the appearance of adverts offering Level 2 services in a monthly publication known as Roshan Kainat International were the fault of the publisher, not the Appellant.
34. The Appellant argues that the Respondent failed to take into account an assessment of the Appellant undertaken in HJT Training that demonstrated he is competent at level 3. Furthermore the Respondent has no mechanism in place to ensure that its caseworkers are suitably qualified to assess the qualifications of a candidate.
35. The Appellant suggests in his Grounds and Reasons of Appeal, under the heading “Malicious Prosecution” at (ix) & (x) (page 17) that the omission by the Respondent of part of a statement by the AIT Judge, Mr. P. Cruthers, was deliberate and thereby “---- tried to subvert the truth, misguide the decision makers in this case and to misdirect the course of justice.” (Our emphasis).
36. The Appellant then argues that in fact Mr. P. Cruthers, acting as an Immigration Judge at the AIT, subsequently issued directions dated the 13th October 2008 in the case of Ms Nisba BIBI (page 41) to the Appellant at the AIT in a case before him. The Appellant implies that this suggests the AIT were satisfied he could act. At paragraph 1 of those Directions Mr. Cruthers states inter-alia: “It appears that the immigration judge who purported to hear the case on 6October 2008 may have been in error in refusing to allow Mr Shakood of (“APNA”) to represent the appellant at that hearing.” (Our emphasis).
EVIDENCE:
37. The Respondent called the caseworker assigned to the application who was duly sworn to give evidence. The salient points of her evidence are summarised thus: She had worked with the OISC, the Respondent, for seven years. She indicated that the Respondent received the application for continued registration (page 68). The Appellant had indicated that he was competent at Levels 2 & 3. He asked for sample question papers for the assessment. She explained that the Respondent do not release these and explained why. The Appellant attended for assessment and had been provided with feedback and identified issues by way of correspondence and report. She stated that the Respondent did respect and take into account the HJT training and awards but that they were not a substitute for the Respondents’ own assessments. She was a team leader for the Respondent at the time. Her decision that the Appellant was not competent went up the line firstly to the Director of Operations and then to the Respondents’ Legal Team for scrutiny, approval, rejection and/or endorsement. She indicated that she had passed competence tests at levels 1, 2 & 3 and had worked on secondment to the Home Office on the Asylum and Immigration team. She conceded that she was not an Immigration expert by any means. She indicated that she attends different training sessions to update her knowledge but that there is no system or regulation such as Continuing Professional Development criteria for her, or other case workers, to meet. When put to her that the Applicant had indicated in his Grounds and Reasons that he had shown her the receipts on file, she confirmed there was a note of the receipt on the file. She indicated that the adverts came to her attention in July. She stated that his explanation was that it was the fault of the publisher. He never produced any evidence to support that assertion. The Respondent didn’t look for further evidence on this point. She confirmed that she had carried out an audit of the Appellants business premises and that this audit confirmed that the Appellant failed to meet the criteria set by the Respondent for registration and was assessed as not fit to give advice. She stated that she had carefully explained the shortfalls and identified the issues to the appellant and provided him with a report. She had explained that an audit could and would be made at any time. She explained to the Appellant that the Respondent did not, and was not required to wait for a year post registration. The reason she explained to the Respondent were to monitor sand regulate advisers at all times. She referred to Mr. Cruthers witness statement on which she relied as evidence that the Appellant had acted beyond the level 1 at which he was registered.
38. Mr. Cawcutt made lengthy and helpful submissions to this Tribunal.
REASONS FOR DECISION
. Section 83 (5) of the Immigration and Asylum Act 1999 requires the Respondent “to exercise her functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services: - (a) are fit and competent to do so and (b) act in the best interests of their client”. This is an onerous statutory burden designed to protect vulnerable members of society.
The Appellant makes bold assertions against the Respondent and in particular about their impartiality, fairness and transparency of the organisation but has produced no evidence in support of them.
The Appellant suggests the audit carried out by the Respondent was “Premature”. This is a novel concept and again has no evidence in support of the contention that it undermines the result of the audit in any way or is otherwise unfair. On the contrary we find an audit at an early stage will assure all concerned that all is well.
The Appellant suggests that he was not in breach of the Respondents Code 5 by failing to report the alleged theft of his files and documents within 10 days as required by the Respondents’ Code. He indicated to the Respondent that the time should run from 10 days of completion of the Police investigation. Although the Appellant has provided a police investigation number, he has failed to provide any details of the investigation or its conclusion, or evidence that it is in fact concluded, or any other evidence in support of the allegation that there was a theft. It is our view that such an interpretation, in itself, illustrates cause for grave concern about the Appellants fitness and/or competence to advise in Immigration matters at all. This Tribunal finds it unacceptable that the Appellant did not notify the Respondent about the alleged theft until the 10th February 2009 when it is purported to have occurred on the 17th December 2008 despite the fact that there had been numerous exchanges between the parties between these dates as the Appellant sought to postpone the audit in question. The audit was postponed for a short time in February 2009 to facilitate the Appellant but most significantly throughout those exchanges, the Appellant did not mention the alleged theft until the day before the audit. This Tribunal is sceptical in the extreme about the veracity of the Appellants allegation relating to his clients’ files and rejects the account given
This Tribunal finds it particularly disturbing that the Appellant failed to notify the relevant clients of the alleged theft and loss of their files and personal information therein. We find that this illustrates a significant contempt for the respect due to his clients’ privacy. We are of the view that this conduct alone gives grave concern about the Appellants competence and fitness to advise.
The adverts placed in the Roshan Kainat International (pages 198 -194) are blatantly advertising that the Appellant provides services at levels above level 1 at a time when he was not registered to do so. This is not in issue. Nor is the fact that it happened on three of the monthly issues published in that year. The Appellant suggests that it was a mistake on the part of the publisher and that he was not aware of it. He provides no evidence from the publisher that this was their mistake. On the balance of probabilities, this Tribunal rejects the proposition that these adverts were a mistake on the part of the publisher and the suggestion that the Appellant did not know about them.
We accept the evidence of the caseworker that the Respondent recognises the validity of, and takes into account the HJT training and awards but that it is not a substitute for the Respondents’ own assessment.
This Tribunal rejects the suggestion that the Respondent “---- tried to subvert the truth, misguide the decision makers in this case and to misdirect the course of justice.” as alleged by the Appellant in reference to their citation of the Directions given by Mr. P. Cruthers. The wording of the extract from Mr. P. Cruthers Immigration Judge at the AIT, in his directions, referred to and set out by the Appellant in his Grounds and Reasons for Appeal (page 17), do not in our view exonerate the conduct Appellant in any event. We note the significance of the word “may” by Judge Cruthers in the directions referred to by the Appellant. We find that there can be no reliance on these directions by the Appellant to establish that the directions exonerate him of any wrongdoing.
More significantly there is a detailed witness statement from Mr. P. Cruthers dated the 9th June 2009 (page 202) which states that the Appellant attempted, on numerous occasions, to appear before him as a Judge the AIT when he was not qualified to do so. Further this statement provides evidence of conduct on the part of the Appellant that, in our judgment establishes a gross ignorance and misunderstanding of the role and responsibilities that an adviser should have. Conduct described by Mr. Cruthers, inter-alia but not exclusively, such as attempting to act as a McKenzie Friend or a witness or an interpreter for his client after having being refused permission to appear as his representative.
The Appellant signed a covering letter with an application for a Notice of Pending Appeal dated 21st August 2008 to the AIT as the Representative of the Appellant (at page 239) when he was not registered or qualified to do so.
Accordingly this Tribunal finds that the Respondent was justified in making the relevant decision and this appeal has been refused.
………. Brian Kennedy QC
Judge 28th January 2010