IN THE IMMIGRATION SERVICES TRIBUNAL
CASE NO. IMS/2002/019/RNV
Before: David Bean QC (Chairman), Mr P Barnett and Dr A Montgomery
B E T W E E N:
WINSTON EDWARDS
Appellant
-and-
IMMIGRATION SERVICES COMMISSIONER
Respondent
________________________________
STATEMENT OF REASONS
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1. This is an appeal by Winston Edwards against a decision of the Immigration Services Commissioner, contained in two letters dated 9 October 2002, to vary his registration from Level 3 so as to be at Level 1 only. We heard evidence and argument on 8 and 9 May 2003 and gave our decision dismissing the appeal on the second day of the hearing. We now give our written statement of reasons in accordance with rule 24(3) of the Immigration Services Tribunal Rules.
2. Mr Edwards is, as he described himself, the junior partner in the firm of Equity Legal and Advisory Services (ELAS) which provides advice on immigration matters, principally to the Jamaican community whose nationals form 98% of the clientele. The senior partner is Mr Ken Williams.
3. There is no dispute between the parties about the nature of our appellate jurisdiction. It is not restricted to public law grounds only. In other words, we are not limited to reviewing the Commissioner’s decision and saying whether or not it was reached lawfully. Once an appeal is before us we are entitled to take our own view on the merits. If we do allow an appeal then by section 88(2) of the Immigration and Asylum Act 1999 we may, if we consider it appropriate, direct the Commissioner to continue the appellant’s registration at its previous level (Level 3), vary it to Level 2 or limit it to Level 1.
4. The Commissioner’s decision was reached simply on the basis of the requirement of competence under section 83(5)(a) of the Act. It is right to emphasise that there is no suggestion against Mr Edwards of misleading conduct, abuse of immigration or asylum procedure or advice to any client to do something which would amount to an abuse. It is also right to emphasise that there has been no criticism of the competence of Mr Williams, who continues to be registered at Level 3 and whom we found to be a most impressive witness.
5. Mr Edwards’ appeal is brought on two bases. The first is that the procedure adopted in his case was unfair. The second is that the decision to reduce his registration to Level 1 was unduly harsh on the merits. We have been greatly assisted by the clear and concise oral and written submissions of counsel, Mr Philip Norman for the appellant and Mr Jonathan Auburn for the Commissioner.
6. We can deal with the procedural issue briefly, since it was conceded, but in view of its importance we should not pass over it altogether. An initial audit of the work of ELAS was conducted on 25 April 2002. Mr Harris, the OISC case worker, drew up an Identified Issues Report a copy of which was sent to Mr Williams. It listed some areas of concern, including record-keeping (see page 28 of the bundle), but there was no specific criticism of Mr Edwards by name, nor any reference to individual files. For the most part, the report indicated that the issues mentioned were to be re-visited at the next audit. A covering letter stated that non-compliance with any request in the report “may affect your continued registration by the Commissioner”.
7. The second, fuller audit took place on 8 August 2002. This time Mr Harris was accompanied not only by an assistant but also by Mr Davies, an experienced immigration solicitor acting for this purpose as a consultant to the OISC. Files were selected at random for examination by Mr Davies. He saw 60, of which 35 were the responsibility of Mr Edwards. Seven of these 35 caused him concern, and these seven constituted all, or almost all, of Mr Edwards' files in the sample group involving out-of-Rules applications with Level 2 work. All of them were new matters arising since the initial audit on 25 April 2002. Mr Davies asked questions about them at a meeting with Mr Williams and Mr Edwards jointly.
8. The questions were mostly answered by Mr Williams. Mr Edwards naturally deferred to his senior partner, and no attempt was made to get answers from Mr Edwards personally. It was not put to him in the course of what all present agreed was a courteous and well-conducted meeting that his record-keeping or the handling of all or any of the seven cases was incompetent, nor that his continued registration at Level 3 or Level 2 might be at risk.
9. Mr Davies drew up a report on the audit. Mr Harris adopted it in a further Identified Issues Report, but neither document was sent to Mr Edwards or Mr Williams. Instead they were passed to more senior colleagues of Mr Harris in the OISC, and ultimately to the Deputy Commissioner. The next that Mr Edwards or Mr Williams heard of the matter was when they received the letters of 9 October stating, among other things, that Mr Edwards’ registration would be reduced to Level 1 and that this would take effect in 28 days.
10. This procedure was not satisfactory. Mr Edwards should have been told the case against his continued registration at Level 3 and been given the opportunity to answer it before a decision was taken. (This is not a criticism of Mr Harris personally: he was following a procedure laid down at a more senior level.) We welcome the fact that the Commissioner, through Mr Auburn, conceded that the procedure adopted did not give the Appellant a sufficient opportunity to raise matters in his defence, and that it will be reviewed “in the light of lessons learned from this case”.
11. However, Mr Auburn submitted that the decision should nevertheless be upheld on its merits and that we should ourselves take the view that Mr Edwards should be registered only at Level 1. Mr Norman for his part accepted that such a course would be within our jurisdiction, but argued that we do not have the material on which to come to that conclusion in this case. He pointed out firstly that we have not seen the files, secondly that in any event the seven cases are now rather out of date, and thirdly that the sanction was too severe.
12. As to the first point, we can only proceed on the material which either party puts before us. It is a matter for speculation whether the files would have assisted either side’s case. We are inclined to think that they would not have taken the matter much further, since there has not been a great deal of dispute about what they contain which was relevant to this appeal. So far as the desirability of up-to-date evidence is concerned, we were not told of any recent change in Mr Edwards’ or the firm’s administrative practices, and Mr Edwards made it clear that he has not been on any training course for about a year: so we are effectively deciding the merits of this appeal on material from the year 2002 with the advantage, which the Deputy Commissioner did not have, of hearing Mr Edwards’ explanation.
13. We turn to the seven cases which caused Mr Davies concern. We regard it as significant that all of them were new, in the sense that they were files opened since the initial audit of 25 April 2002 had identified record-keeping as a matter for concern; also that all of them were Level 2 cases, and that they formed the bulk of those cases among the files of Mr Edwards which Mr Davies examined.
14. Bennett, Bryan, Scott and Powell. These were all student applications to change the applicant’s status from a visitor to a student or to extend the period of leave to remain as a student. There was a failure to provide the Home Office with all the documentation required in support of the claim either on the initial application or, where a 14-day extension was requested, within the 14 days. The result of this was that the applicant was liable to be treated as an overstayer and the application rejected. (The fact that some of the applications ultimately succeeded does not, in our view, detract from this.) There is no record on the files of the clients having been advised of the implications of becoming overstayers. Mr Edwards accepted in oral evidence that his record-keeping was unsatisfactory. There is an additional, though less important point, that in some cases Mr Edwards did not have contact details for the client. We consider that any competent adviser submitting an application to the Home Office must have contact details for the client.
15. Archer. This was a marriage case. The client Ms Lorna Archer had been married to a British citizen, but only for a period of months. There is no record of advice having been given of the implications of the fact that she was an overstayer, or the significance of the two-year policy contained in Home Office document DP3/96. Moreover, the letter to the Home Office simply states that Ms Archer was married to a British citizen and that it was the couple’s intention to reside in the UK permanently. It does not urge any special circumstances which would justify the exercise of discretion to allow someone who had been married for so short a period to remain in the UK. On the face of it, the application was therefore doomed to failure. We do not, however, know whether there were in fact any special circumstances in Ms Archer’s case, and we do not therefore find that the substantive contents of the application demonstrate incompetence; but the absence of record-keeping in our view does so.
16. Smith. This was a schoolgirl seeking extension of her leave to remain. She was enrolled at a state school (i.e. not a fee-paying school) and was an overstayer. There is no record of the serious difficulties in her case being explained to the client or to a family member on her behalf. The letter to the Home Office did not put forward any argument about special circumstances in Miss Smith’s case. Again, it is difficult to say whether this application was substantively incompetent.
17. Simbarashe. This was a child whose mother had been diagnosed as HIV positive. Mr Edwards’ letter seeking indefinite leave to remain for the child does not mention these strong compassionate circumstances. (As a lesser but nevertheless significant point, the child’s birth certificate was not enclosed either.) As to the failure to mention the mother’s HIV diagnosis, Mr Edwards stated that she did not wish it to be disclosed. But it would have been very much in the child’s interests, and so far as we can see not contrary to the mother’s, for the fact to have been mentioned.
18. If a client insists on following a course of action which is plainly contrary to her best interests, we would at the very least expect a clear record to be made of the advice that was given and the client’s refusal to accept it. Indeed, in some cases it will be prudent to ask the client to sign a document recording this fact.
19. We conclude on the basis of the material made available to us that Mr Edwards is not at present competent to provide immigration advice and services at Level 2 or Level 3. We therefore dismiss the appeal. We are far from saying that this will always be the case. It will be open to Mr Edwards to apply for registration at Level 2 (which is what he said he felt comfortable with) either when his registration comes up for renewal in August 2003, or at a later date during the registration year, or on the next renewal in August 2004. It will then be for the Commissioner to determine that application on the basis of up-to-date material. We note that in one of the letters of 9 October 2002 it was suggested that if Mr Edwards was to work at a higher level than Level 1 he could carry out some work under the supervision of Mr Williams using the appropriate supervision work book. We suggest that it would be prudent for him to take that course. We would also encourage Mr Edwards to attend a training course, either with the OISC or with respected external providers such as the JCWI, ILPA or LAG, perhaps with special emphasis on record-keeping as well as substantive immigration law.
IN THE IMMIGRATION SERVICES TRIBUNAL
CASE NO. IMS/2002/019/RNV
B E T W E E N:
WINSTON EDWARDS
Appellant
-and-
IMMIGRATION SERVICES COMMISSIONER
Respondent
______________________________________________
STATEMENT OF REASONS
______________________________________________
(uhl)
