City Immigration Consultants v Office of the Immigration Services Commissioner

IN THE IMMIGRATION SERVICES TRIBUNAL APPEAL NO: IMS/2006/13/RCR

IMMIGRATION ASYLUM ACT 1999

CITY IMMIGRATION CONSULTANTS LIMITED

Appellant

and

THE IMMIGRATION SERVICES COMMISIONER

Respondent

Before:

Mr. George Marriott – Chairman

Ms Orla Conway

Dr. Alan Montgomery

Sitting at Procession House, 55 Ludgate Hill, London EC4M 7JW

Dates of Hearing:

20^th to 22^nd March 2007

Sent to Parties: 5^th April 2007

DECISION AND REASONS (RULE 24)

INTRODUCTION

1. Reference to documents is by reference to the paginated bundle prepared by the Appellant pages 1 to 186 with a prefix A, and to the bundle of documents prepared by the Respondent 1 to 505 with a prefix R. We were able to read the documents placed before us including the witness statements. Many were referred to in the course of the hearing and it is not intended to refer to them extensively in this decision.

2. Both parties were represented by Counsel and we heard evidence from four witnesses who had made witness statements namely Mr. U and Mr. O both Directors of the Appellant, and from Ms C and Ms G both employees of the Respondent.

BACKGROUND

3. In a letter dated the 9^th October 2006 the Respondent refused the Appellant’s application for continued registration. This followed an audit of the Appellant’s organisation on the 21^st April 2006 and the submission by the Appellant of their application for continued registration dated the 28^th April 2006. In brief form, the Respondent refused the application for continued registration as she was satisfied that the current advisors and owners of the Appellant had been found to persistently fail to act in their clients’ best interests which had occurred either through incompetence in immigration knowledge and poor management of their business, or through unfit behaviour (R19).

4. The Appellant appealed that decision by an Appeal Notice dated the 1^st November 2006 (R5-7). An application was made to the President to suspend the effect of the decision of the Respondent pending the outcome of the appeal, and that was refused on the 13^th November 2006 (R38-39).

BURDEN AND STANDARD OF PROOF

5. Pursuant to Rule 22 of the Immigration Services Tribunal Rules 2000, the burden of proof was on the Appellant who had to prove to us the facts which were relied upon on the balance of probabilities.

THE LAW

6. Section 83(5) of the Immigration and Asylum Act 1999 requires the Commissioner to exercise her functions so as to ensure so far as is reasonably practicable, that those who provide immigration advice or immigration services:

(a) are fit and competent to do so;

(b) act in the best interest of their clients.

7. Paragraph 1(3) of Schedule 5 of the 1999 Act states that “in determining whether a registered person is competent or otherwise fit to provide immigration advice or immigration services, the Commissioner may take into account any breach of her Rules by:

(a) that person; and

(b) any person employed by or working under the supervision of that person.

8. Paragraph 3(3) of Schedule 5 of the 1999 Act applies the Commissioner’s Code of Standards to any person providing immigration advice or services other than persons falling into category therein defined.

9. Paragraph 3(3)(5) of Schedule 6 of the 1999 Act states 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”.

10. Paragraph 9(1)(a) of Schedule 5 of the 1999 Act states that “on determining a complaint under the complaint scheme, the Commissioner may, if the person to whom the complaint relates is a registered person or a person employed by, or working under the supervision of, a registered person, record the complaint and the decision on it for consideration when that registered person next applies for his registration to be continued”.

ADJOURNMENT AND CASE MANAGEMENT

11. Pursuant to Rule 17 and 18 of the Immigration Services Tribunal Rules 2000, both parties were required to provide witness statements and documents within 42 days after the Tribunal had sent an acknowledgement pursuant to Rule 6b of the Rules. The Appellant failed to comply and the President gave a direction on the 16^th January 2007 (sic) requiring compliance by the 15^th January 2007. At the same time hearing dates set out above were fixed. The Appellant eventually complied by letter dated the 5^th March 2007.

12. Following that compliance, the Respondent by letter dated the 14^th March 2007 submitted a further witness statement and documents and requested that permission be granted to use the witness statement and documents at the hearing (R499-505). With the documents were an exchange of e-mails and reference to the Appellant’s chosen Counsel for the hearing. This was irrelevant material and its proposed inclusion was not appropriate. We deprecated those advising the Respondent for its inclusion. Fresh Counsel for the Appellant was chosen on the day before the hearing and the Tribunal was notified of a request for an adjournment.

13. The first application, when the hearing opened, was for an adjournment on the grounds that it had been impossible to master the brief in the limited amount of time. An adjournment requested for a period of 3 weeks. Counsel for the Respondent in principle did not oppose an adjournment but argued that the case could proceed the following day, in other words he proposed an adjournment for 24 hours.

14. Part of the evidence to be adduced by the Respondent was eight complaints determined by the Respondent pursuant to paragraph 9(1)(a) of Schedule 5 of the 1999 Act (above). We were concerned by the age of five of the complaints and the volume of documents which they generated and as a result made the case management decision to the effect that the Respondent could not rely upon five of the eight complaints as follows:

C1811 (R427-432)

C1758 (R433-442)

C1722 (R407-415)

C1700 (R416-426)

C1458 (R461-482).

15. The cut off date we chose was the 10^th June 2005 which was the date the Respondent had previously refused an application by the Appellant for continued registration which was subsequently overturned by a different composition of this Tribunal on the 11^th November 2005. We ruled that any complaint determined against the Appellant after that date of refusal, of which there were three, could be used by the Respondent in evidence to support her decision on the 9^th October 2006.

16. This would have the effect of reducing the amount of material to be used, concentrating the issues, and as a result, we adjourned the case during the course of the 20^th March and started the substantive appeal hearing on the 21^st.

THE EVIDENCE

17. The audit took place on the 21^st April 2006, notice having been given to the Appellant. Ms C was given a list of the files which exceeded a thousand but was advised that only fifty of those files had clients’ consent for the Commissioner to inspect the files. The consequence was that the Respondent’s staff selected five of those files which were run either by Mr. U or Mr. O. Three of the files were run by Mr. U namely 1465, 1673, and 2073. The other two files namely 1649, and 1553 were files run by Mr. O. At the conclusion of the audit, the Respondent’s staff had a plenary session with Mr. U and Mr. O to discuss their concerns relating to those files. The Respondent also looked at a number of other matters concerning the running of the Appellant’s organisation and in particular file management, key dates, client consent, Advertising and Publicity Code, professional indemnity insurance, client survey satisfaction questionnaire, fee scales, Finance and Account Rules and complaints. It was acknowledged by Ms C that the first six items of concern, were matters which the Appellant was able to put right. The final matter concerned the operation of the five files inspected, which confirmed the concerns already identified in respect of the three recent complaints. The issues arising were set out in a comprehensive letter from the Respondent to the Appellant dated the 8^th May 2006 (R280-284). Attached to this letter was an “Identified Issues Report” dealing with the five files selected by the Respondent as part of their audit (R286-298). The Appellant was invited in the letter to reply but Ms C warned them that the files audited raised issues which cast doubt upon the Appellant’s fitness and competence to provide immigration advice and services such as to place its continued registration at risk. Ms C went on to state that the matters were so serious that the Respondent had decided that it was not appropriate to set out remedial action for these issues but did wish to give the Appellant the opportunity to comment on her findings and provide any explanation to satisfy her of the Appellant’s fitness and competence. The reply she received was dated the 19^th May 2006 (R301-303) and this dealt with all matters save the audited files identified in the “Identified Issues Report”.

18. The Tribunal were concerned that the letter of 8^th May might have been ambiguous as to what was expected of the Appellant concerning the audited files, and it was conceded by Ms C that no reminder was ever sent to the Appellant inviting them to comment on the “Identified Issues Report”. However we have to recognise that the Appellant is in the business of providing immigration advice and services which in itself is a complex area of law and that therefore we concluded that although the letter could have been better expressed, it was clear to the Appellant that they could, if they had wished, gone into some detail relating to the serious allegations concerning the five audited files. Indeed when we heard from Ms G later, we were satisfied that had the Appellant for example shown that the files were not representative of their work, and had they been invited to look at the other forty five files, they certainly would have looked at a number of them to see if that was the case.

19. Indeed we were satisfied that that opportunity was open to the Appellant right up to and including the hearing of the appeal. This point was generously conceded by Counsel for the Respondent and indeed, it appeared on the second day of the hearing, that the Appellant might well have further documents with regard to the five audited cases which had not been placed in their bundle. Accordingly a short adjournment was granted for Counsel for the Appellant with his clients to see if there were such documents which could shed a different light on the five audited cases. In the event, no application was made to put any further documents before the tribunal.

20. Mr. U and Mr. O gave evidence with regard to a number of issues including the management of the five files which were audited by the Respondent’s staff.

FILE 1465

21. This is dealt with in the witness statement of Ms C (R54), and the witness statement of Mr. U (A177). The allegations made by the Respondent (in the Identified Issues Report) included a number of serious allegations. The client had been living in the UK as an overstayer for 9 years. Mr. U made an application to regularise her position setting out the period that she had lived in the UK and also stating that she owned a property worth in excess of £115,000.00. There was no evidence on the file of the Appellant advising the client that she did not qualify under the 10 or 14 year Rule having only overstayed for 9 years and no evidence on the file to suggest that Mr. U had attempted to establish what other ties the client had in the UK. Almost inevitably, the Home Office refused the application. Ms C saw on the file a letter to the client’s employer stating that the application to regularise the client’s status had been made to the Home Office on compassionate grounds and gave some comfort in asserting that “we are very likely sure that the application shall be considered in the light of our circumstances”. Mr. U denied writing such a letter and stated that there was no document on the file to show that any such representations were made to the client’s employer. The limited number of documents which Mr. U exhibited in support of that application (A129-147) appeared to bear out his assertion, but in cross examination he was taken to the worksheet which demonstrated that a letter had indeed been written to the client’s employer (A130). Mr. U explained the difference as a “typographical error”. He was also asked to explain what he meant by “compassionate grounds” and agreed that no compassionate grounds had been advanced in the application to the Home Office. This contradicted the worksheet (A130). We were also concerned to note that there was no contact with the client for almost a year and that that contact was prompted by the client calling in for an update. Finally we were very concerned to hear from Mr. U that the file review was conducted by a secretary in the course of this year. That is clearly unacceptable. No action was proposed following that review even though the Commissioner does require contact with the clients on any material development and at the most every six months.

FILE 1673

22. The documents relating to this matter were produced by the Appellant (A155-157). Mr. U’s evidence was set out at A177. Ms C dealt with this in her witness statement at R 58. The Tribunal were very concerned that the Appellant only produced three documents from his file for the purposes of this appeal. The initial attendance note on his file according to Ms C showed that the client sought asylum in the UK and was refused on appeal when the client was represented by the Refugee Legal Centre. The client appeared to approach the Appellant who submitted an application for settlement on her behalf on the grounds of “compassionate ground representation”. The application was made to the Home Office on three grounds namely that she had hepatitis B, was pregnant with her second child, and had close relatives in the UK and none abroad. It would have been crucial to find out what grounds had been raised by the client’s former representatives and Mr. U’s answer to this was that he could not find the address of the former representative. The Refugee Legal Centre is well known in providing such advice and we were concerned by this assertion which Mr. U maintained throughout. He made it plain to us that because of the fact that he did not know their address, no attempt was made to recover their file or ascertain what grounds had been used by them in the previous application. None of the resulting and necessary warnings or cautions appeared in any advice to his client. The Tribunal subsequently discovered a document within the bundle created by Mr. U and Mr. O in their business plan and which they had lodged with the Respondent headed “signposting” (R234). This document was created by the Appellant to enable the Company to have an easy reference to other advisors if they could not take on a case. Within the document was the name of the Refugee Legal Centre and their address. It was also noted that the Appellant had made a charge of £850.00 for this work.

FILE 2073

23. This matter was dealt with by Mr. U in his witness statement at A178-179 and by Ms C in her witness statement at R75. The only documents which the Appellant brought before the Tribunal in support of this were set out at A158-163. Again this was by no means the complete file.

24. The matter concerned an overstayer and the advice to the client was that Mr. U would make an application to the Home Office “for consideration on the overstayer’s scheme which is outside the Immigration Rules”. In his witness statement, he confirmed that there was no scheme run by the Home Office where overstayers could be granted leave to remain. The file did not demonstrate any advice of the risk that the client took of notifying the Home Office of his existence. Nonetheless he confirmed that he lodged with the Home Office a number of documents including bank statements which he agreed showed his clients address. In cross examination, he stated that outside the Immigration Rules effectively meant on compassionate grounds. However the only grounds that were advanced were that the client had no criminal record and was a law abiding individual, employed and with a bank account. When pressed, Mr. U agreed that compassionate grounds could amount to the client’s family being in the UK, illness or children in the UK; however none of these were advanced.

FILE 1649

25. This is referred to in Mr. O’s witness statement (A182-186) and Ms C’s statement (R56) and Ms C’s further statement (R491). The documents are at A148.

26. An application had been made by Mr. O for a residence permit. It appears that instructions were given on the 8^th May 2004. These were recorded in a client care letter sent to the client on the 25^th May 2004 and within that letter the client’s statement is to the effect that he was contemplating getting married. Nonetheless on the 26^th May 2004 Mr. O sent a letter of application to the Home Office for a residence permit stating the client had got married on the 8^th May 2004 and enclosing the marriage certificate. There were no copy documents of what was sent on the file and the Home Office refused the application on the 17^th September 2004 on the grounds that the client was not a qualified person. The file then showed that there was a second refusal letter on the case file following a further application submitted by Mr. O on the 7^th March 2005. It was refused on the basis of one of the passports being false. There was nothing on the file to indicate that the client had instructed Mr. O to pursue a second application and in his witness statement and evidence, Mr. O denied making such an application. He explained this in evidence by simply stating that he wrote a further letter to the Home Office for his client for which he had not charged. The contradictory statements and the lack of documentary evidence concerning the running of this file, caused the Tribunal considerable concern.

FILE 1553

27. The deficiencies of this file related primarily to administration and the operation of the file was not advanced by the Respondent at the hearing to resist the appeal.

COMPLAINTS

28. The Respondent argued and the Appellant accepted that the underlying facts of each complaint which was looked at were not challenged. Nonetheless the Appellant wished to assert that the content of them could not have led the Commissioner to refusing the application for continued registration. The relevant complaints were:

- C2339 (R483-489);

- C2317 (R452-460);

- C2255 (R443-451).

29. These complaints were also usefully summarised in appendix 3 to the refusal letter (R23-27). The breaches of the Rules and Codes of the Commissioner are helpfully set out in the Identified Issues Report referred to above. Each of the complaints demonstrated extensive breaches of the Commissioner’s Codes and Rules. It is noteworthy that the complaints were registered with the Commissioner respectively in November 2005, January 2006 and December 2005. All were determined by the Commissioner between February and May 2006. The only sensible conclusion which the Tribunal could draw was that the Appellant persistently failed to act in their clients' best interests either through incompetence in immigration knowledge and poor management of their business or through unfit behaviour.

COMPETENCY

30. Both Mr. U and Mr. O were required to take competence assessments both at Level 1 and Level 2. There was conflicting evidence as to the effect of the competence tests with Mr. U and Mr. O both saying in terms that they had been led to understand that these were to be regarded as mock tests which would have no effect on the application for re-registration, and that in any event the tests could be retaken. Both Ms C and Ms G disputed this although it was accepted by the Respondent that in certain circumstances Level 2 test, which was a manual test as opposed to a computer generated test, could be retaken. Both Mr. U and Mr. O completed forms to indicate that they were able to take the test although Mr. U qualified that by stating that he had been ill and in evidence to us indicated that there was a difference between advising clients face to face and the pressurised environment of a test. Mr. U also stated that he had had a stroke and there was documentary evidence to support that. Indeed when he gave his evidence, it was clear to us that he had considerable difficulty mastering any of the documents.

31. We came to the conclusion that the tests were not mock and nothing had been said to Mr. U or Mr. O to indicate that they were. They clearly were an integral part of the Commissioner’s procedures to ensure that she satisfied her statutory duty in setting these tests to analyse the competence of Mr. U and Mr. O and that that was part of her function in promoting good practice and ensuring that clients of the Appellant were dealt with competently and fairly.

32. The results of the competence assessment are summarised in R22. It is not our function to analyse whether the competence tests were the appropriate tests. In the absence of bad faith which was not advanced, we were obliged to look at the results.

33. The tests at Level 2 were taken before the tests at Level 1 but nothing turned on this. The result of the competence assessment at Level 1 showed that Mr. U was only competent to provide a part of the advice at Level 1 namely immigration advice and services in nationality and citizenship. However Mr. O was found competent to provide immigration and advice in all categories of Level 1.

34. The results of the tests at Level 2 showed that both Mr. U and Mr. O had failed to demonstrate the competence requirements for a Level 2 advisor.

APPLICATION FOR RE-REGISTRATION

35. The Appellant had been registered with the Respondent initially for the period the 1^st May 2001 to the 30^th April 2002. It was then subsequently registered for the years ending 30^th April 2003 and 30^th April 2004. There was a hiatus in 2005 caused by an appeal against the refusal of registration and disciplinary charges. The appeal was allowed and the disciplinary charges dismissed. The result was that no application for continued registration with the Respondent had been made by the Appellant for the year ending 30^th April 2006. The Respondent took no point on this (R11), but at the audit, the Appellant was asked to submit an application for continued registration for the period ending 30^th April 2007. That was submitted on the 28^th April 2006 (R139). Four advisors were specified namely Mr. U and Mr. O both equal shareholders and directors of the Appellant and two more who were described as solicitors (R144). The Tribunal noted that the Appellant had previously employed other advisors, it being noted that both Mr. U and Mr. O were equal shareholders and directors of the Appellant. It was noted by the Tribunal that from an unknown date in 2002 right through to October 2004 the Appellant had employed (not all at the same time) a total of four additional advisors and that for a substantial part of that period there were at least two advisors. Three of the four were Level 3 advisors.

36. However it was also noteworthy that from the period October 2004 to and including the date of the audit and beyond, there had been no advisors employed by the Appellant and that the only advisors in the Appellant were the directors namely Mr. U and Mr. O.

37. In his evidence Mr. U indicated that the two further advisors were in the application for continued registration to help improve the organisation and he asserted that it didn’t matter whether the two advisors to be employed were at a higher level than him and that he would not be upset if one or more of them overruled him on the running of cases. He also asserted that the four previous advisors have left for genuine reasons.

38. Mr. O’s evidence was similar. He indicated that he had no difficulty in being an employer of somebody who was more highly qualified than he was.

39. It was put to Ms C that there was no evidence to suggest that Mr. U or Mr. O would compromise the working of employees who were at Level 3 and that the directors did not have to be the highest qualified persons. Ms C did not dispute this. She confirmed that in considering the application for re-registration she had taken note of the intention to take on two higher level employees. However, she had concluded, given the strength of the case for refusal upon the basis of the Appellant’s current performance, that there was no point in proceeding to assess the competence of the two proposed employees at that time. Moreover, the question as to whether the introduction of two new employees might materially alter the position had been considered by the Commissioner herself. The Respondent’s view was that whilst the intention to take on new employees should indeed be considered as part of the overall application for re-registration, this could not mean that the application would necessarily be granted where there was evidence that the Appellant had not been fit, competent or acting in the best interest of clients hitherto.

40. The concerns of the Respondent focussed upon the files taken in the audit, the complaints, and the results of the competence tests. The Respondent came to the conclusion that she did not think that the inclusion of two further advisors would make any difference to the running of the business. Ms G very fairly summarised the position by stating that the Appellant was not fit as the company took on cases which would not succeed, that they tended to take on overstayers and that even with new competent advisors there would be pressure to take on what she described as hopeless cases.

41. We came to the conclusion that this approach had to be correct, and that there was no evidence which the Appellant had adduced which could permit another conclusion.

42. It was also noteworthy that it was not until the application for re-registration that the Appellant showed that the company was prepared to take on further advisors, and that for a substantial period of time namely from October 2004 they had operated without any advisors other than the two directors Mr. U and Mr. O. Mr. U was ill during this period.

REASONS