IMMIGRATION AND ASYLUM ACT 1999
THE IMMIGRATION SERVICES TRIBUNAL
Appeal No. IMS/2002/017/RCD
Between
Elias Dawood
APPELLANT
And
Immigration Services Commission
RESPONDENT
Before
George Marriott: Chairman
Orla Conway
Martin Hoare
Sitting at
48/49 Chancery Lane, London WC2A 1JR
Hearing dates: 25th to 26th February 2003
1st and 2nd May 2003
21st May 2003.
DECISIONS AND REASON (RULE 24)
Background
1. Reference to the documents is by reference to the paginated bundle prepared by the Respondent and sent to the parties prior to the hearing in May.
2. Following an investigation, the Respondent made a determination by letter dated 5th September 2002 (A1 to 6). The determination concentrated upon one matter (KAR) conducted by the Appellant and the result of the determination was that the Respondent determined that the Appellant had contravened paragraphs 50 (a), 50 (d), 50 (e), 50 (f) of the Commissioners Code of Standards (F18). The Code of Standards was prepared by the Respondent pursuant to statute and in particular paragraph 3 (1) of Schedule 5 of the Immigration and Asylum Act 1999 (The 1999 Act).
3. Having found the complaint against the Appellant to be proved on the balance of probabilities, the Respondent decided to record the complaint and the decision on it for consideration when the Appellant next applied for his registration to be continued pursuant to paragraph 9 (1) (A) of Schedule 5 of the 1999 Act.
4. The Appellant was advised of his rights to appeal to this Tribunal which is provided by Section 87 (2) of the 1999 Act.
5. The Appellant lodged his appeal and the matter was listed for the 25th and 26th February 2003.
6. We were told the evening before the hearing, the Appellant engaged counsel (Miss Bhanra) who applied for an adjournment on two grounds namely that she had had insufficient time to prepare the case and that she had unsuccessfully requested disclosure from the Respondents. We declined the application for an adjournment with regard to disclosure on the grounds that the documents would come from a third party, and the Tribunal's rules did not allow for third party disclosure. With regard to the late instructions, we agreed to a short adjournment to allow Miss Bhanra to prepare.
7. The case then commenced and evidence was heard from the Appellant that afternoon and the following day. During the course of that afternoon and the following day, documents which the Respondent had not seen were on a haphazard basis faxed from the Appellant's office in Bristol and we were expected to digest those documents within the bundle which had not been paginated correctly.
8. Accordingly and on the 26th February 2003 when it became apparent that there were far more documents to come from the Appellant, we decided to adjourn the case until the 1st and 2nd May 2003 making a specific direction with regard to disclosure and witness statements.
9. The case then resumed on the 1st and 2nd May 2003. As the Appellant had only given a limited amount of evidence in February, we decided in the interests of consistency to hear his evidence afresh using the freshly paginated bundles and knowing that the documentation upon which he was to rely was in order in the bundles. The second witness we heard evidence from was Lucy Thomas who had been witness summonsed by the Appellant. A Miss Hawthorn who appeared on the 1st May 2003 to give evidence for the Appellant did not attend on the 2nd. Accordingly we did not hear her evidence and then we heard evidence from Annabel Lim the caseworker appointed by the Respondent to make the determination which was the subject of the appeal to us.
10. Because of insufficient time for submissions, the case was adjourned until the 21st May and counsel for the Appellant and the Respondent were directed to file parallel skeleton arguments by the 15th May and we heard oral submissions from both counsel on the 21st May 2003.
The Procedure
11. The appeal was against the findings of the Respondent that there had been a breach of sub-paragraphs (a,) (d), (e) and (f) of paragraph 50 of the Commissioners Code of Standards. At the hearing on the 25th February, counsel for the Respondent indicated that sub-paragraph d was no longer being pursued. Subsequently and prior to the hearing on the 1st May 2003 counsel for the Respondent also indicated that sub-paragraph (f) was abandoned and that only sub-paragraphs (a) and (e) were therefore being pursued.
12. The Appellant also filed amended grounds of appeal dated 4th April 2003 which in summary asserted that the Respondent's determination had failed to take into account all relevant facts and that the investigation was not balanced. This was met by an amended notice of reply filed by the Respondent and dated 22nd April 2003. The Respondent put into issue the documents which the Appellant had produced after the 26th February being correspondence and attendance notes. The Respondent asserted that he was not prepared to agree that those documents were genuine. In the amended notice of reply, the Respondent also asserted for the first time that the Appellant had breached paragraphs 29 and 33 of the Code of Standards (F15).
13. With regard to the inclusion of paragraphs 29 and 33, we gave a preliminary view without hearing argument that we did not believe that the Respondent could do this as the function of the Tribunal was to determine the Appellant's appeal from a determination which the Respondent had already made and on which he had relied upon paragraph 50 and various sub-paragraphs of the Code of Standards. We expressed the view that if the Respondent wished to press his case for including paragraphs 29 and 33 logic appeared to dictate that that could only happen if a determination had been made by the Respondent asserting a breach of paragraphs 29 and 33 and from which the Appellant appealed to this Tribunal.
14. We made that preliminary view in the hope that it would help the parties but expressed that it was only a preliminary view and that we would obviously have to hear argument if the Respondent was to pursue that line.
15. In the event we did not hear argument because counsel for the Respondent told us that those arguments were no longer being pursued.
Burden and standard of proof
16. Pursuant to Rule 22 of the Rules, we made it plain to the parties and this was accepted, that the burden of proof was on the Appellant who had the burden of proving the facts upon which he relied to the civil standard namely on a balance of probability. However we also made it plain that as the Respondent was alleging that documents which the Appellant produced after the February hearing were not genuine, then in effect the Respondent was alleging fraudulent conduct on the Appellant and therefore the burden of proof shifted from the Appellant to the Respondent and became the higher criminal standard in other words beyond reasonable doubt. This was accepted by counsel for both parties.
The evidence
17. The determination, which the Appellant appealed against, was restricted to paragraphs 50 (a) and (e) which are set out below.
An adviser must at all times:
50(a) Show due respect to the client, courts and the legal systems and follow due processes of law and administration;
50(e) not seek to abuse any procedure operating in the United Kingdom in connection with immigration or asylum, including any appellate or other judicial procedure.
18. We heard oral evidence from the Appellant, Lucy Thomas who worked for the Home Office at Gatwick, and Annabel Lim who worked for the Respondent.
19. There were three areas of the Appellant's handling of the KAR case which caused the Respondent concern and which remained relevant after the withdrawal of the allegations set out in paragraph 50 (d) and (f). Those were as follows:-
• The delay in providing or the failure to provide information to the Home Office concerning KAR's application for leave to remain for medical treatment;
• The Appellant's repeated requests and insistence that the interview of KAR take place in Bristol;
• The premature allegation of a breach of Human Rights Act 1998.
The provision of Information
20. The Appellant provided a witness statement and gave oral and detailed evidence as to the procedures he adopted within his office. He explained that part of his work was done in the Gambia with the knowledge of the Respondent and that when he was in the Gambia, this made no difference to the running of his business because he was on call 24 hours per day 7 days per week. The only potential difference would be that he might dictate a letter from the Gambia to an assistant who would then dispatch the letter and the letter would not necessarily be filed in the particular matter file and indeed a paper copy may not be held, it could be an electronic copy. He explained that KAR or his mother were in regular contact with him including the weekends, that he gave consistent and good advice with regard to the difficulties which KAR's case presented, that the advice was confirmed in writing on a number of occasions and often by mobile telephone call between him and KAR or his mother whilst he was in the Gambia.
21. He also explained that letters to clients were not necessarily held on a client folder. He explained that fax cover sheets were not in that folder and that incoming telephone calls were recorded manually at reception. He also explained that visits to the office would be recorded manually at reception and that there was an outgoing mail book, which gave a good indication of the contact with clients.
22. On the face of it his procedures within the office were not as good as they could be, but it became very clear that that was one of the reasons why, when he was asked for his file by the Respondent, large aspects of the file were missed because of the misunderstanding by him as to what was required from him.
23. An examination of the file showed specifically that there was a medical report from a Dr. Miller dated 29th April 2002 which was only provided to the Home Office on the 23rd May 2002. It was pointed out to us that whilst the report from Dr. Miller is dated the 29th April 2002, this was actually sent by Dr. Miller to KAR's GP with a copy to KAR. The Appellant gave evidence which we accepted which was that when the document came into his hands, it was relatively promptly forwarded to the Home Office and we accepted that evidence. We also accepted that there was no undue delay with regard to the medical appointment for an x-ray. We also accepted the Appellant's evidence that he did forward to the Home Office information that had been requested by the Home Office about the likely length of the treatment, the likely cost and the ability to pay for it. We found, having heard the Appellant on oath that he was a truthful witness and we accepted his evidence.
The interview
24. Again we were satisfied that the Appellant did emphasise to KAR and his mother that the adverse consequences that could happen to his case if he insisted upon only attending an interview at Bristol.
25. We took the view that the Bristol/Gatwick interviews were an unfortunate storm in a teacup. There was no doubt having heard Lucy Thomas who was witness summonsed by the Appellant that there had been an agreement which had been communicated to the Appellant that KAR's interview could take place at Bristol but that this had been countermanded at a later date. There is also no doubt that the Appellant communicated to KAR and his mother that he had been told the interview could take place at Bristol and it must have been embarrassing for him to be told that that was no longer the position with the consequence that he had to inform his client accordingly.
26. However we are totally satisfied that throughout the time the Appellant handled KAR's case he and his mother were fully appraised of the consequences of not attending the interview at Gatwick.
27. Counsel for the Respondent made it plain that only two documents were being put forwarded as bogus, namely the letters of the 11th and 25th June. We came to the conclusion having had the benefit of hearing the Appellant give his evidence and be cross-examined upon it, that the Respondent had failed to show that the documents were bogus and thereby fraudulently created. We were also satisfied that KAR and his mother were demanding and anxious, that they were in constant touch with the Appellant who was constantly giving them full advice and thereby notifying them of the consequences of failing to attend the interview at Gatwick.
Human Rights Act
28. The two documents dated 16th February 2002 being respectively an ISH2D and IS96 (C4 and C5) refused KAR leave to enter the United Kingdom but at the same time gave him temporary admission restrictions until the 5th March 2002 when he was expected to fly out of the UK. The Appellant was faced with those documents when KAR instructed him. He gave evidence that any Human Rights claim had to be made at an early and convenient stage and was familiar with the one stop notice. He stated that that was why he made application at that stage.
29. Annabel Lim also gave evidence. She was tendered for cross-examination. She stated that the investigation started in June, concluded in September and it was a thorough investigation considering all the material that was made available to her. She was not initially prepared to accept that had other documentation been available to her she might come to a different conclusion but eventually reluctantly agreed that that could be the case.
Decision
We have come to the conclusion that this appeal should be allowed in its entirety.
Reasons
The provision of information
Having accepted the Appellant's evidence, at best the position was that the Appellant had failed to provide information. That possibly would amount to failing to follow due processes of …. administration contrary to 50 (a). However because of our findings with regard to that, we were satisfied that the Appellant did provide information within a reasonable time frame to the Home Office. Bearing also in mind his duty to his client accordingly and equally, because of our findings, we were satisfied that he did not seek to abuse any procedure contrary to 50 (e).
The interview
Having been satisfied that the Appellant made KAR fully aware of the consequences of failing to attend the interview at Gatwick, this could hardly amount to failing to show due respect to the client. It was perhaps unfortunate that the temperature in the letters was raised by the Appellant in his communications to the Home Office concerning the location of the interview, but on analysing paragraph 50 (a) and (e), the raising of the temperature in communications with the Home Office does not amount to a breach of 50 (a) or (e).
Human Rights Act
We have taken the view that once a decision to refuse entry was made then it is perfectly proper for an advisor to allege Human Rights for his client. It was put by the Respondent that no decision had been made, because the Home Office were waiting to interview KAR. We were not impressed by that. A determination had been made at Gatwick on the 26th February 2002. That determination had not been rescinded, and under the one stop notice once a determination had been made, it was perfectly reasonable for an advisor to make the Human Rights Act claim. We do not have to decide that he had to make the claim. All we have to decide is whether an advisor without the benefit of hindsight was pursuing a legitimate course of action. We are satisfied that he was. Only if it could be established by the Respondent without the benefit of hindsight that no reasonable advisor would have advanced Human Rights Act point at that stage, would the Respondent be able to demonstrate that there was a breach of paragraph 50 (a) or (e).
Interpretation
We were encouraged by counsel for the Respondent to give a broad interpretation to paragraph 50 of the Code of Standards. The reason behind this was because the penalty that had been imposed by the Respondent was the lightest of sanctions that the Respondent could impose. It appears that the Respondent did not consider the breaches were so serious as to justify the weightier sanctions which were within his powers and we were asked to consider the appeal in that context. Obviously the sanction imposed by the Respondent is lighter than a referral to this Tribunal for disciplinary proceedings. On the other hand the language used in paragraph 50 and in particular paragraph 50 (e) in our view was serious wording because it was aimed at an adviser who was seeking to abuse any procedure operating in the United Kingdom with regard to immigration or asylum including any appellate or other judicial procedure. We took the view that that in particular was a very serious allegation and that although the Respondent had not elected to invoke disciplinary proceedings before the Tribunal, the sanction that he imposed amounted to a serious blot on the Appellant as it amounted to an internal disciplinary sanction and that therefore the words within paragraph 50 should be viewed in that context which meant that they could not be given the wide interpretation that the Respondent advanced upon us.
As the disciplinary sanctions were imposed by the Respondent, they would also have or could have a bearing upon the Appellant's application for renewal of his registration and therefore it was important that the evidence to back the determination could be tightly tied to those sub-paragraphs of paragraph 50 upon which the Respondent relied. Accordingly we gave them a narrower interpretation than that which was urged upon us.
Consequential directions
Pursuant to Section 88 of the Immigration and Asylum Act 1999 having allowed the appeal, we consider it appropriate to and direct the Respondent to quash the decision he recorded under paragraph 9 (1) (A) of Schedule 5 and the record of that decision.
George Marriott
Chairman