Carole Ekitok v Office of the Immigration Services Commissioner

Background

Carole Ekitok, practising as Ekitok & Co, the appellant, applied to continue her registration by letter dated 29 March and received on 11^th June 2004. By decision dated 3 December 2004, the Immigration Services Commissioner, the respondent, refused the application. The appellant's registration was cancelled.

By Notice of Appeal, received on 31^st December 2004, 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 held a hearing to decide the application to suspend. This hearing took place on 20^th January 2005. I refused to suspend the decision and delivered written decision and reasons dated 24 January 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 Wednesday 6^th, Thursday 7^th and Friday 8^th April 2005.

The Hearing.

The Tribunal was provided with a bundle comprising the documents relied upon by the parties and the witness statements of the appellant and Roger Caldwell and Claire Reading, witnesses for the respondent.

The appellant was to appear in person. The respondent was represented by Robert Kellar of counsel.

Shortly before 1030, the tribunal received a telephone call from the appellant stating that she was on a train, that it would arrive in London at 1115 and that she expected to reach the tribunal by 1200 midday.

The appeal was called on at 1030. The respondent’s counsel and witnesses were present. I told them of the call from the appellant and of the need to adjourn to 1200 midday.

I then raised the topic of Rule 35 of the Commissioner’s Rules [factor 1 Refusal letter dated 3 December 2004, page 1]. I reminded Counsel that Rule 34 was under the heading, “Powers of Entry” and referred to investigations into a third party complaint against a registered person. I inquired whether the words in Rule 35 “allow access to such premises” referred back to Rule 34 and should be read with Rule 34. I asked if these two Rules were drafted to cover inquiries resulting from a third party complaint against a registered person service provider, not a request to visit to check records. I referred to the respondent’s Code of Standards, “the Code”, paragraphs 29 to 36 of which cover records and case management and, in particular, if it was Code 30 that required an advisor to grant access to the advisors’ records when requested so to do by the commissioner or a person properly authorised by him. I said that it appeared that the request for audit seemed to be under Code 30 not Rule 35. I said that if this is a correct interpretation of the Rules and the Code then the appeal against breach of Rule 35 must succeed. The respondent’s counsel said that he would consider this matter. We then adjourned to await the arrival of the appellant.

The appellant arrived shortly before 1200. We sat again at 1200.

The Respondent’s counsel told us that he had considered Rule 35 and Code paragraph 30. He agreed that any breach would be under Code paragraph 30 not Rule 35 and so that part of the appeal would succeed.

The appellant opened her case.

She told us that she had admitted signing the forms [pages 44, 45 & 46 of bundle] at the suspension hearing in January. She had told me then what her understanding of the forms was. She told us that she indicated to every single adjudicator in Manchester before the hearing what the position was. Her understanding was that her case worker, Roger Caldwell, would provide a training structure to enable her to return to level 3 but she had no support from OISC. There was no provision for training at level 2 for people in similar circumstances. She said that she thought that OISC or IAA would draw her attention to any breach of professional conduct but nothing ever happened. The respondent had taken away her licence to practise after 13 years. She hoped she would have the opportunity to apply for registration in the future.

I asked if she wished to give evidence on oath. I explained that she would then be asked questions by the respondent’s counsel and the tribunal. After considering the question, she agreed to giver evidence on oath.

She told us her name and professional address. She told us that what she said in opening her case was true.

[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.]

In cross-examination she agreed that bundle pages 107-114 was her application and that she knew that she was registered at level 2. She said that she thought she would get training or supervision from the respondent, that she thought Caldwell would supervise her but he never did. She agreed that there was nothing in the Codes saying that the respondent would provide supervision. She was shown paragraph 55 of the Code of standards and agreed that she was aware of its contents. She agreed that she was aware that as a level 2 advisor she could not represent clients at the IAA except on bail hearings. When asked about Code 50(d) she said that that was why she was explaining herself to the adjudicators. She said that she told them that she was practising at level 3 for 13 years and that following an audit she had dropped from level 3 to level 2. She agreed receiving Caldwell’s letter dated 2 September 2003 (bundle pages 23 & 24) and that she understood that she had dropped to level 2. She said that she thought that if she explained her position to the adjudicator she could appear. She said that she had appeared at 5 or 6 cases. She said she explained her position to the adjudicators and some of them were quite happy for her to go along with the case. She agreed that she had completed and signed the forms at pages 44, 45 & 46 of the bundle. In relation to page 44, she agreed that she was not supervised by Counsel Brown or Counsel Rosemarine. In relation to page 46, she agreed that she was not supervised by Caldwell. She agreed that the forms were misleading. She was asked about the 26 March 2004 (page 53, paragraphs 5-13 of the bundle). She explained that she had set out her account in her letter dated 26^th March pages 101-103 of the bundle and her appeal had been allowed.

In re examination she told us that she was aware of the alleged breach but she was not misleading the court as her understanding was that if she explained everything to the court then, with the consent of the adjudicator, who would liaise with the respondent, she would be O K.

We adjourned for the midday adjournment.

On our return we informed the respondent that he may consider that his witnesses added nothing to the matters in issue now that the Rule 35 matter was no longer live. Kellar took instructions and then told us that he did not need to call evidence but he was prepared to put Caldwell in the witness box if the appellant wished to ask him questions. The appellant asked for him to give evidence. She was reminded that she should confine her questions to the live issues. He was called to the witness box to give evidence on oath.

In cross-examination, the appellant asked about past telephone calls when she said that he said that he would assist her to return to level 3. He had no recollection of such calls.

The Respondent then argued that the appeal, save for the Rule 35 matter, should be dismissed. He referred us to his Reply, bundle pages 75 & 76 and gave us cross references to assist in identifying the relevant documents. He argued that the appellant’s conduct, as evidenced by bundle pages 51–58 and pages 47-50, showed breach of Code paragraph 50(a).

The appellant addressed us. She repeated again that it was not her intention to mislead the court. She thought by explaining herself before the adjudicator and getting authority to act, if she was in breach the adjudicator would contact the respondent who would contact her. She said that she explained her position every time she appeared. She thought that if she was in breach the respondent would take steps to correct her and not take steps to take away her whole livelihood.

We retired to discuss the matter.

Decision.

We returned to the parties. I told them that the appeal was dismissed and that a written determination with reasons would be delivered shortly.

Reasons.

We reminded ourselves that the burden was on the appellant to show the facts upon which she relies and the standard of proof was the balance of probabilities. This did not apply to the allegation of breach of Rule 50(d) as this involved an allegation of fraudulent conduct and the burden was therefore on the respondent and the standard was beyond reasonable doubt.

Breach of Rule 35. This was conceded as no longer sustainable. The appellant succeeds on this topic

Breach of Code paragraph 55. The appellant accepted that she was registered at level 2 only. She represented clients before adjudicators on at least 5 occasions and therefore acted beyond the level at which she was registered. She was therefore in breach of Code paragraph 55. The appellant fails in her appeal on this topic.

Breach of Code paragraph 50(a). The respondent based his finding on pages 47-50 and 51-58 of the bundle. The appellant replied to these complaints by letters at pages 97-99 and 101-103 of the bundle. It seems to us that the complaints mainly relate to lack of proper documentation and incompetent preparation. It seems to us that such could be breaches of Code paragraph 55 relating to competency and that Code paragraph 50(a) is directed towards behaviour i.e. personal conduct rather than professional competence. By way of example, where a person is accused of preparing an inadequate bundle of documents, we take the view that such a person has complied with the process [Code 50(a)] but has done so incompetently in breach of Code 55. The appellant succeeds on this topic.

Paragraph 50(d). The appellant told us that on each occasion she explained her position to the adjudicator, that she was registered at level 2, that she had been registered at level 3 in the past and reduced to level 2. She told us that the adjudicators were happy to go along with this. She told us that she had completed the forms at pages 44, 45 and 46 of the bundle on the relevant dates signed each and handed it to the adjudicator. As is clear from the form it must be completed and handed in before the hearing and if no such form is completed the representative is not allowed to appear. She said that she expected the IAA to contact the respondent and that they would contact her if there was any difficulty. When faced with pages 44 and 46, completed on the same day she told us that none of the named supervisors had ever supervised her. She agreed that the forms were misleading.

We considered anxiously her sworn evidence that on each occasion she made it clear to the adjudicator at the beginning of the hearing that she was only level 2, not under supervision and therefore not entitled to appear for her client.

We reminded ourselves of the evidence relating to each appearance.

The appearance on 13 November 2003. Bundle page 45 relates to that appearance. The form states that she is registered at level 3. This was a month or more after her reduction to level 2.

The appearance of 9 February 2004. This generated correspondence as shown in bundle 47-50 from the regional adjudicator, 97-99 from the appellant and bundle pages 49-50 from the regional adjudicator. The appellant’s letter dated 12 march, bundle pages 97-99 makes it clear to us that neither the adjudicator nor the regional adjudicator had any reason to believe that the appellant was level 2 and not entitled to represent anyone at a hearing. Page 89 paragraph numbered 9 gives a wholly misleading impression as does the final sentence on page 99.

Turning to the appearance on 26 March 2004. This gave rise to a complaint by an adjudicator about the appellant (bundle pages 51-58) and the appellant’s reply dated 26 March (bundle pages 101-103). The whole flavour of the appellant’s letter, the complaint that the adjudicator failed to treat her with the requisite courtesy and failed to address her properly does not fit with her evidence that she had told him that she was not registered above level 2 and so could not represent a client before him.

With regard to the hearing on 31 August 2004, bundle pages182-185 show that the appellant was listed to appear for the appellant in TH/04833/2004 in court 3 in Manchester on 31 August 2004. We heard no further evidence dealing with this appearance.

There were two appearances on 24 September 2004. It was on this day that she completed and signed the forms bundle pages 44 and 46 for 2 different adjudicators and D. Brunnen complained of her as set out in bundle page 43. When the appellant was taxed with D. Brunnen’s contemporaneous note dated 24^th September 2004, page 43, she said that his recollection was not correct.

After careful consideration of the contemporary documents and the appellant’s evidence we are sure that she did not explain to the adjudicators on the 9^th of February 2004, the 26^th of March, and the 2 adjudicators on 24 September that she was registered at level 2 and that she gave them every reason to believe that she was registered at a level that entitled her to appear before them. We are therefore sure that on those occasions she deliberately and knowingly misled those adjudicators contrary to Code paragraph 50(d). As regards the appearances on 13 November 2003 and 31 August 2004, we say that on the limited evidence before us we are not prepared to say that she acted in breach of Code paragraph 50(d).

For the above reasons the appeal is allowed in relation to Rule 35 and Code paragraph 50(a) but fails in relation to Code paragraphs 50(d) and 55.

As must be obvious the proved breaches of Code paragraph 50(d) are by far the most serious of the respondent’s allegations.

The appellant maintained her complaint that she should have been asked for her reaction to the allegations before the respondent decided to refuse her application for continued registration and that his decision was unfair by reason of his failure so to do. We take the view that such was not unfair and, in any event, any perceived unfairness has been cured by the appellant’s use of the application to suspend and the appeal procedure.

Seddon Cripps.

11 April 2005. His Honour Judge Cripps.