OISC v Janet Melling

This ruling is made further to a public hearing on 18 April 2011 and to a ruling dated 11 July in which the Tribunal refused the Immigration Services Commissioner (“the Commissioner”) permission to amend the Notice of Appeal dated 29 October 2010 and gave the parties notice that it proposed to strike out the proceedings pursuant to rule 8 (3)(c) of the Tribunal’s Rules on the basis that they did not have a reasonable prospect of success.

Following the oral hearing in April, the Tribunal was assisted by the written submissions of Timothy Nesbitt of Counsel on behalf of the Commissioner, dated 24 May. Following the Tribunal’s proposed strike out, Mr Nesbitt made further representations under rule 8 (4) of the Tribunal’s Rules, seeking to persuade the Tribunal not to strike this matter out. The Tribunal had previously considered Ms Melling’s submissions dated 22 June 2011 but she informed the Tribunal on 18 August (having seen the Commissioner’s submissions) that she had nothing more to say.

These proceedings are brought by the Commissioner against Ms Janet Melling. The proceedings relate to the undisputed failure of an entity known as “Immigration Consultancy Services” to have filed an immigration application with the Home Office on behalf of its client, Ms Perue, in 2008.

Ms Melling appears on the register of advisers maintained by the Office of the Immigration Services Commissioner (“OISC”) in her own name as a Level 3 adviser under number 010632. Immigration Consultancy Services (sometimes referred to as “ICS”) was registered by OISC under number F200100114. It might in fact have been more appropriately registered as “Janet Melling, trading as Immigration Consultancy Services” as Immigration Consultancy Services was not itself a legal person. Ms Melling was a self employed sole trader until 2009 when she ceased to trade under that name. In August 2009 a company was incorporated with the name “ICS Legal Limited” and was also registered by OISC under number F200100114 . Ms Melling has since then been an employee of ICS Legal Limited.

At the hearing on 18 April 2011, the Tribunal was informed by Mr Cawcutt, who represented the Commissioner, that the incorporation of the company in 2009 had been treated as a “change of name” application by OISC, so that there was continuity of registration of both entities under one number. In answer to the Tribunal’s questions, he accepted that this could not have been the correct approach to registration because ICS Legal Limited, being a company, is a distinct legal person and entitled to its own registration number. In subsequent submissions made by Counsel on behalf of the Commissioner, it has been suggested that ICS Legal Limited has not in fact ever been properly registered with OISC, although Ms Melling strongly disputes this and has sent the Tribunal a certificate of registration for the company issued by OISC and dated as recently as 22 May 2011. The Tribunal expresses the hope that OISC will now take steps to ensure that the registration arrangements are regularised.

During the 18 April hearing, the Tribunal expressed some confusion as to the basis of the Commissioner’s case against Ms Melling. The Tribunal noted that the Commissioner had, on 29 October 2010, written to Ms Melling informing her of the determination of Ms Perue’s complaint against her. That letter had informed Ms Melling that the Commissioner had found certain breaches of the Code and had decided to lay a disciplinary charge under paragraph 9 (1) (e) of Schedule 5 to the Immigration and Asylum Act 1999 (“the Act”) and would ask the Tribunal to direct that the Commissioner’s findings be laid on file for consideration at “the next application for continued registration made by ICS Legal Ltd” and also for the Tribunal to issue a direction that Ms Melling personally refund the fees paid by Ms Perue. The Commissioner, in reliance upon her determination, lodged a Notice of Appeal (Footnote: ¹) with the Tribunal (also dated 29 October 2010) in section B of which the Respondent was described as “Janet Melling” with the address of ICS Legal Ltd, but at section E of which (“Reasons for Appealing”) the Commissioner referred to ICS as the Respondent and later in that section referred to “Janet Melling of the Respondent”. In section F of the Notice of Appeal (“Result that you are seeking”) the Commissioner stated that “the actions of ICS warrant a direction….that the decision be recorded for consideration with ICS’s next application for registration…” Mr Cawcutt attempted to assist the Tribunal with an explanation of the Commissioner’s case, however the Tribunal concluded that further thought and consideration on the part of OISC was required in order to make clear to the Tribunal (and, most importantly, to Ms Melling) how it was said that Ms Melling had taken with her from Immigration Consultancy Services to ICS Legal Ltd, liability for the breaches of the Code found to have occurred in Ms Perue’s case.

Ms Melling was not present at the hearing on 18 April. The Tribunal had, prior to the hearing date, received a letter from her indicating that she disputed liability but that she was unwell and would not be attending the hearing. She sent in a doctor’s certificate but did not suggest that the hearing should not go ahead. The Tribunal was satisfied that she was aware of the hearing date and considered whether to proceed to hear the case in her absence, pursuant to rule 36 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“The Rules”). The Tribunal concluded that it would not be in the interests of justice to proceed with the hearing that day in view of the need for clarification of the issues raised at paragraphs 4, 5 and 6 above. Whilst Ms Melling’s letter indicated that she was aware in general terms of the Commissioner’s case, the Tribunal noted that she could not have been aware of the concerns which the Tribunal had raised with the Commissioner’s representative or the answers he had given. These were, in the opinion of the Tribunal, issues of such materiality that the interests of justice required that Ms Melling should be afforded an opportunity to comment on the Commissioner’s case properly articulated. To that end the Tribunal adjourned and directed that the Commissioner should confirm in writing whether she wished to apply to amend the Notice of Appeal or to withdraw the application to the Tribunal and further to make representations as to why the Tribunal should not make a costs order against the Commissioner in respect of the adjourned hearing.

In response to the Tribunal’s directions, the Commissioner furnished the Tribunal with comprehensive submissions prepared by Counsel, for which the Tribunal was grateful. These submissions (i) sought the Tribunal’s consent to the amendment of the Notice of Appeal (see below); (ii) explained in some detail the nature of the Commissioner’s case against Ms Melling and (iii) made submissions as to why the Commissioner should not be ordered to pay costs.

The Commissioner’s submissions were served upon Ms Melling and she in turn sent the Tribunal her comments on them. These are referred to below.

Counsel’s submissions dated 24 May helpfully set out the basis of the Commissioner’s case against Ms Melling as follows:

Counsel helpfully pointed to the relevant statutory provisions under the Act which underpinned this analysis, as follows:

Counsel for the Commissioner asked the Tribunal to bear in mind in considering this matter that it cannot have been the intention of Parliament that “relevant persons” should be able to escape regulatory liability simply by changing the entity through which they provide advice. It was also submitted that Ms Melling continues to be a “relevant person” because she is still a registered person (allegedly not having cancelled the registration under the name of Immigration Consultancy Services) so she remains liable to regulatory action. Alternatively, it was submitted that if the “registered person” ought now to be viewed as ICS Legal Ltd, then Ms Melling is the “relevant person” and subject to regulatory action by virtue of her employment by that company.

The Commissioner applied to amend the Notice of Appeal so that (i) the first sentence of section E would show “Janet Melling” as the Respondent to these proceedings (rather than “ICS”) and (ii) so that the phrase “of the Respondent” after “Janet Melling” would be deleted from the fifth paragraph of section E. No application was made in respect of section F, which asked for the charge to be laid and considered on “ICS’s next application…”. The Commissioner invited the Tribunal to allow these amendments on the basis that no injustice would arise to Ms Melling therefrom, that it would further the overriding objective so to do, and on the basis that the amended Notice of Appeal could now be served on Ms Melling so that these proceedings could re-commence.

Counsel for the Commissioner asked the Tribunal to consider that, if no amendment were permitted and these proceedings were effectively brought to an end, Ms Perue would not have the potential remedy that Parliament had intended she should have in these circumstances.

In Ms Melling’s written submissions dated 22 June 2011 (which were copied to the Commissioner) she stated that the entity consistently referred to by the Commissioner as “ICS” had in fact always traded as “Immigration Consultancy Services” and she provided the Tribunal with a copy of a letter from OISC dated 27 October 2009 addressed to “ICS-Immigration Consultancy Services” in support of this submission. She also provided the Tribunal with copies of correspondence from OISC confirming “continued registration” of Immigration Consultancy Services in 2009 and then of ICS Legal Ltd in 2010, under the shared organisational registration number. The letters make clear that F200100114 was the organisational reference number which had been applied to both entities and that Ms Melling’s personal L3 adviser number is 010632.

Ms Melling maintained in her submissions that ICS Legal Ltd had been lawfully registered with OISC. She commented that OISC has accepted fees from ICS Legal Ltd and issued her with a certificate of registration and further that Counsel’s submissions were the first indication she had received that there was a problem with the company’s registration with OISC. She suggests that there was an onus on OISC to get the registration process right. She took strong exception to the suggestion in Counsel’s submissions that there was something underhand about her transition from being a sole trader to becoming the employee of a company and stated that she had changed her business arrangements following accountancy advice. She complained that the Commissioner has failed to make clear who was the Respondent in these proceedings and has mis-described Immigration Consultancy Services as “ICS” throughout the documentation.

The Tribunal’s procedure is governed by The Rules. Rule 5 provides case management powers including at rule 5 (3) (c) the power to “permit …a party to amend a document”. The case management powers are required to be exercised in a manner which gives effect to the overriding objective in rule 2 of the Rules, which is to enable the Tribunal to deal with cases fairly and justly.

The Tribunal considered what the requirement to be fair and just meant in the context of this particular jurisdiction. The Tribunal noted that in R (on the application of Puri) v Bradford Teaching Hospitals NHS Foundation Trust (Footnote: ³), the Administrative Court held that, whilst Article 6 of the European Convention on Human Rights would not be engaged in ordinary disciplinary proceedings where all that could be at stake was the loss of a specific job, it would be engaged if the effect of the proceedings could be to deprive an employee of the civil right to practise a profession. In the recent case of R (on the application of Bonhoeffer) v The General Medical Council (Footnote: ⁴)the Administrative Court again confirmed the engagement of Article 6 ECHR in disciplinary proceedings where the right to practice a profession was at stake. The Tribunal concluded that proceedings which included an application for a sanction under s. 89 (3) of the Act engaged Article 6 ECHR because they touched upon a person’s civil rights in relation to the practice of a profession, rather than merely involving the risk of losing a specific job.

Rule 8 (3)(c) of The Rules provides that the Tribunal may strike out the whole or a part of proceedings if it considers that there is no reasonable prospect of the appellant’s case, or part of it, succeeding. Rule 8 (4) provides that the Tribunal must not strike out proceedings under rule 8(3)(c) without first giving an appellant an opportunity to make representations in relation to the proposed strike out. The Tribunal proposed to strike out the Commissioner’s case in reliance upon rule 8 (3) (c) and so invited the Commissioner to make representations as to the proposed strike out. The Tribunal considered that the Commissioner’s case against Ms Melling had no reasonable prospect of succeeding and in its 11 July ruling, set out its reasons for taking this view so that the parties could comment on it.

The power that the Commissioner invited the Tribunal to exercise was that in s. 89 (3) of the Act, referred to at paragraph 11 (iv) above. If the Tribunal upholds the disciplinary charge laid by the Commissioner, the Tribunal “may direct the Commissioner to record the charge and the Tribunal’s decision on it for consideration when the registered person next applies for continued registration”. The Tribunal noted that Ms Melling was said by the Commissioner to be the “relevant person” for the purposes of a disciplinary charge either on the basis that she remained properly registered under the institutional number first allocated to Immigration Consultancy Services or on the basis that ICS Legal Ltd had been properly registered (which was apparently disputed) under the same institutional number as Immigration Consultancy Services and she was its employee. The Tribunal took the view that this continuing uncertainty as to the correct registration position struck at the heart of the Commissioner’s prospects of succeeding in this case for the following reasons.

Immigration Consultancy Services was, as stated above, the trading name of Ms Melling when she was a self-employed sole trader. Proceedings against Ms Melling trading as Immigration Consultancy Services may well have been the appropriate target of disciplinary proceedings at the appropriate time. However, it seemed to the Tribunal that OICS has either expressly or impliedly cancelled the registration of Immigration Consultancy Services by its action in transferring its registration number to a separate company, so that Ms Melling had ceased to be the “relevant person” in relation to Immigration Consultancy Services when the registration was cancelled. The Tribunal has been unable to find any provision in the statutory scheme or the Code itself dealing with liability for breaches of the Code by a person who had previously been a “relevant person” but was no longer a “relevant person” within the meaning of the statute.

Turning to the Commissioner’s alternative proposition, this was that Ms Melling was a “relevant person” for the purposes of the disciplinary charge because she was employed by ICS Legal Ltd which was a “registered person”. The Tribunal noted that Counsel had raised serious doubts as to whether the registration process for that company had in fact been validly completed. This made it unclear whether Ms Melling was now a “relevant person” for the purposes of disciplinary proceedings by virtue of her employment by a “registered person”.

The unsatisfactory state of affairs in relation to registration appeared to the Tribunal to have come about through OISC’s own actions in treating the registration of the new company as a “change of name/continuation of registration” application only. It was unacceptable to the Tribunal that the basis for the Tribunal’s jurisdiction was sufficiently unclear to have been put forward by Counsel on the basis of two alternative propositions which the Tribunal was unable to determine. The Tribunal noted that registration is the cornerstone of the Commissioner’s regulatory regime and took the view that there was no reasonable prospect of proceedings built on such an unstable foundation succeeding.

The Tribunal further noted that, if ICS Legal Ltd was properly to be regarded as the registered person for these purposes, and the “relevant person” its employee, then it followed that the registration which could be jeopardised by the laying of the charge would be that of ICS Legal Ltd itself. This would appear to be the combined effect of s. 89 (2)(c) and (3) of the Act. However, it did not seem to the Tribunal that Parliament could have intended for the continued registration of a completely separate legal entity to be jeopardised in respect of misconduct which was alleged to have arisen when its employee worked as or for a completely different registered person. The Tribunal took the view that these provisions must have been intended to address a situation where the disciplinary charges in question arise from the employee’s conduct whilst working for the registered person whose continued registration would thereby be jeopardised as a result. To interpret the statutory scheme as allowing a charge to be laid which would jeopardise the registration position of a discrete legal entity which is (or should have been) separately registered and which itself had no professional relationship with the complainant would be contrary to the rules of natural justice. The Tribunal did not for these reasons consider that proceedings in respect of Ms Melling’s alleged misconduct prior to her employment by ICS Legal Ltd, but which could have the effect of jeopardising ICS Legal Ltd’s continued registration, would have a reasonable prospect of succeeding. The Tribunal observed that Parliament had intended that OISC should operate an efficient registration system and regretted that it has not found this to be the case in these proceedings for all the reasons set out above.

The Tribunal acknowledged in its 11 July ruling that if these proceedings were struck out it would have the regrettable effect of preventing Ms Perue from obtaining a refund of fees paid. The Tribunal noted that Ms Melling did, much earlier in these proceedings, offer to refund the Home Office fees paid by Ms Perue. This offer does not appear to have been taken forward as relations between her and OISC deteriorated. Ms Melling had also pointed out that OISC had approved terms of business for Immigration Consultancy Services which expressly provided that refunds of its fees would not be made to clients.

The Tribunal invited the Commissioner to make representations on the proposed strike out within 28 days of the ruling being sent to her. The Tribunal informed the Commissioner that it would determine the costs issue when it issued its final ruling on the strike out in due course. A copy of the 11 July ruling was sent to Ms Melling. Although the Tribunal did not require her to make any further representations she informed the Tribunal that she had no further representations to make.

Mr Nesbitt of Counsel made further submissions on behalf of the Commissioner dated 4 August 2011. The Tribunal is grateful for his careful attention to the Tribunal’s concerns about this case, his clarification of the Commissioner’s case and his acknowledgement and apology on behalf of the Commissioner that this case had not been well presented thus far.

Counsel addressed the Tribunal’s concerns by making the following submissions in support of an application for the Tribunal not to strike out the case:

The Tribunal has considered Counsel’s submissions very carefully. It accepts his analysis of the statutory regime and of The Rules, but finds it is unable to accept his application of the law to the circumstances of this case. The Tribunal remains concerned that ICS Legal Ltd may not be properly registered with OICS, given that (i) it was erroneously allocated a pre-existing number belonging to another entity and (ii) the “change of name/continuation of registration” approach adopted by OICS meant that the usual due diligence may not have been undertaken. If, as the Tribunal finds, there is considerable doubt as to whether ICS Legal Ltd is a properly registered person, then the Tribunal is unable to accept the basis of the Commissioner’s case that Ms Melling is currently a relevant person by virtue of her employment by a registered person. As the Tribunal observed in its earlier ruling, Ms Melling was a relevant person when trading as Immigration Consultancy Services, however she appears to have ceased to be a relevant person when she moved to ICS Legal Ltd, in view of the legitimate doubt as to whether ICS Legal Ltd is in fact a registered person. As the Commissioner accepts, there is no power to lay a charge or enforce a remedy against someone who is no longer a relevant person.

The Tribunal has considered whether it would be fair and just for this matter to proceed and for it to hear evidence as to the legitimacy of ICS Legal Ltd’s registration and then, if appropriate, to determine Ms Melling’s liability. However, as the Commissioner is aware from the Tribunal’s earlier ruling, the Tribunal takes the view that Article 6 of ECHR is engaged in this matter so that issues of procedural fairness must be uppermost in its mind. The Tribunal is itself a public authority under s.6 (3) (a) of the Human Rights Act 1998 (“the HRA”) and section 6(1) of the HRA makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. The Tribunal notes that the Commissioner has not disputed its earlier comments about the engagement of Article 6 and/or its reliance upon the domestic case law regarding procedural fairness in disciplinary proceedings.

The Tribunal notes that these proceedings:

concern events which took place as long ago as 2008 and in respect of which it may be difficult for Ms Melling now to dispute liability (or advance mitigation);

have been characterised by such confusion and lack of particularity by the Commissioner that it has been unclear to Ms Melling (and the Tribunal) what the nature and consequences of the proceedings brought would be for her, Immigration Consultancy Services and/or for the company she now works for;

are brought in circumstances where an application to amend the Notice of Appeal has already been refused by the Tribunal for reasons of unfairness to Ms Melling; and

involve a material procedural irregularity in the registration requirements through the application of the “continued registration/change of name” procedure to the new entity, so as to call into question the jurisdiction of the Commissioner and/or the Tribunal in relation to the laying of a charge against a “relevant person” for the purposes of the disciplinary scheme.

An appeal against this decision may be submitted to the Upper Tribunal. A person seeking permission to appeal must make a written application to the First-tier Tribunal for permission to appeal to the Upper Tribunal, within 28 days of the receipt of the decision against which they wish to appeal. Such an application must identify the alleged error or errors of law in the decision and state the result the party is seeking. Relevant forms and guidance for making such an application can be found on the Tribunal’s website under “Further Appeals to the Upper Tribunal” athttp://www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/immigration-services/appeals.htm

The Tribunal’s Rules allow it to make an order for costs on an application or on its own initiative. Having considered the matter carefully, the Tribunal is not minded to order costs against the Commissioner on its own initiative. This matter has involved difficult issues of fact and of law and the Tribunal is grateful to the Commissioner for her Counsel’s assistance in unravelling them. The Tribunal expresses the hope that similar problems will not occur in future cases.

The Tribunal is not aware that Ms Melling has incurred any legal costs. She has responded to the Tribunal at each stage of the proceedings in her own name and the Tribunal has not been informed of her having a representative under rule 11 of the Rules. However, the Tribunal takes the view that Ms Melling should be informed of her right to make an application for her costs under rule 10 (3) of the Rules, which means that (a) she would have to make the application to both the Tribunal and the Commissioner and (b) she would have to send a schedule of her costs with the application. She would also have to explain why she considered that the Commissioner had acted unreasonably in bringing or conducting these proceedings. Any such application must be made within 14 days of the date on which this decision is sent to her. If such an application is made, the Tribunal would be obliged by rule 10 (5) to give the Commissioner an opportunity to make representations on Ms Melling’s application before determining it.