Office of the Immigration Services Commissioner v Tony Opwa-Otto

The Immigration Services Commissioner (“ISC”), the Prosecutor herein, has the power, on determination of a complaint to lay a charge before the Immigration Services Tribunal, known as IMSET (“this Tribunal”) Under Paragraph 9 (1) (e) of schedule 5 of the Immigration and Asylum Act 1999. In accordance with this provision the Prosecutor has made an application for a Disciplinary Charge to this Tribunal and further, if appropriate, an Application for Directions in accordance with paragraph 9 (3) of Schedule 5 of the Immigration and Asylum Act 1999.

Reference to the Documents is by reference to the paginated bundle (“the bundle”) prepared by the Prosecutor and sent to the parties prior to the hearing and where necessary to a further “Agreed Supplementary Bundle” (“the Supplementary bundle”).

A detailed letter of complaint against the Person Charged and dated the 23^rd September 2004 was sent by TH of the Terence Higgins Trust (“the Complainant”) to the ISC (see pages 24 to 31 of the bundle). This triggered considerable correspondence between the Prosecutor, the Complainant and the Person Charged. The complaint related to a woman known as RS, a client of TH, and referred to the Person Charged. In particular “about an immigration adviser by the name of TO whom previously represented our client in respect of her immigration matters.” It seems the substance of the complaint at that stage had been based on the detail recorded by TH directly from RS and from those papers in her possession relating to her immigration matters at that time, and from no other source.

By letter of the 4^th October 2004 (page 33 of the bundle) the ISC wrote to the person charged enclosing a detailed statement of complaint outlining the details as understood by the ISC at that point in time. Those details are to be seen in the “Statement of Complaint” at pages 43 to 37 of the bundle.

The person charged wrote to the ISC on the 22^nd October 2004 (Pages 42 to 44 of the bundle) in response. He indicated that a firm called Total Legal Services (“TLS”) had acted for RS in her immigration matters from February 2002 until February 2003. He stated, “I can recall that RS first contacted TLS in February 2002, after a take over from McKenzie & Hunter Associates”. In this and subsequent correspondence he effectively denied that he personally or Wings of Justice, his own firm, had given, or charged RS for, immigration advice or services.

The ISC wrote specifically to one FE of TLS on the 3^rd November 2004 (page 47). There was no response. Follow up reminders on the 22^nd November 2004 (page 55) and the 8^th December 2004 (page 60). A response did emerge from TLS on the 14^th December 2004 (page 71) but notably it was signed by one YO and not FE to whom each of the three letters from ISC had been sent. In this letter TLS claimed of RS, “We can confirm that this client is unknown to us and we as a firm have never acted for or represented this person”. However YO continued to state further, “Our investigations have revealed that this person was transferred from a firm by the name of Mckenzie Hunter & Co’ to another called Wings of Justice”. There is no explanation about their investigations or how they obtained this information. It seems that the ISC have taken this letter at face value and accepted its contents on the facts.

A complaint Determination was issued to TO on the 25th July 2005 (pages 1 – 13) and on the same date the Application for Disciplinary Charge was sent to this Tribunal (pages 14 -18) and acknowledged on the 26^th July 2005 (page19).

The matter first came before this Tribunal on the 10^th August 2005 when it was adjourned with reasons (see pages 20 – 23). The principal reason for the adjournment was to allow the Prosecutor to consider documents presented by the Person Charged on that day. A further adjournment was sought by agreement between the parties on the 1^st day of December 2005. The matter came to hearing when oral evidence was taken over two full days on the 5^th and 6^th January 2006 and the hearing completed with detailed closing submissions on the 23^rd March 2006.

The Prosecutor has set out the complaint determination at pages 1 to 13 of the bundle with a revised Complaint Determination at pages 1 to 13 of the supplementary bundle.

This Tribunal had the benefit of Skeleton Arguments presented by counsel for both parties. Counsel for the Prosecutor succinctly and helpfully summarised the issues as follows; “The central issue in this case is, therefore, a narrow one and, in the Commissioner’s submission, can be expressed as follows: Was the money received by TO from February 2003 merely the collection of a debt assigned to him by TLS which related to work undertaken by them prior to February 2003 or was it money TO demanded from RS in return for providing immigration advice and services as her immigration adviser after February 2003.”

Counsel for the prosecutor indicated, again succinctly and helpfully, that the Commissioners case rests, for the most part, upon this fundamental issue. It is, he argues the principal basis upon which the commissioner asserts that TO has acted in breach of codes 49, 50(a), 50(b), and 54.

Again counsel for the Prosecutor succinctly and helpfully summarised the remaining issues in his skeleton argument as follows; “The remaining matters relied upon (i.e. not dependent on the main factual issue) are (a) the fact that, apparently on his own case, TO agreed to act for RS from August 2004 in relation to her appeal and thereby acted above his level of registration –code 55(b) , that he failed to give written reasons to RS for withdrawing from the case in September (2005) – code 15(c) and that he persistently contacted RS and her sister after the complaint was made – codes 50(b) and 54 and that he failed to retain records of her case for six years – code 35.”

The Prosecutor concedes that the Burden of proof rests with them.

Counsel for the Person accused has also succinctly and helpfully provided this Tribunal with Closing Submissions and as with Counsel for the prosecutor has expanded these with oral submissions on the last day of hearing.

The first witness was TH who adopted his statement of the 10^th November 2005 at page 193 of the bundle. Of note in that statement he records; inter-alia that “TO commenced representing RS on the 11^th September 2002 operating from a firm called “Total Legal Services” [OISC Registration NO. F200300112]” He later confirms that “RS received a further letter from TO dated 1^st February 2003 confirming that Total Legal Services would be closing their immigration services at their Battersea Branch, with immediate effect from 1^st February 2003”

The second witness was RS. Again her written statement was first adopted. She recognised and identified the letter of engagement from TLS dated 11^th September 2002 but insisted she had never seen FE. She had always dealt with TO.

MT then gave evidence and adopted her statement of 31^st October 2005 (pages 219 -222).

ERJ gave evidence and adopted her statement of the 8^th November 2005 (pages 161 -190). ERJ is an employee of the Prosecutor herein and is a case worker with specific responsibility for investigating and determining complaints received by the OISC

AK then gave evidence after adopting her statement of December 2005 (pages 128 – 131) Essentially supporting the case made by TO she confirmed his account of the system operated by TLS at this branch office and the position as described in the terms of engagement for RS as set out in the letter of 11^th September 2002 (page 110) and as indicated the responsibilities of FE and the two senior caseworkers at the office PF and NI. AK confirmed she personally had filed at least one immigration application for RS according to directions for the TLS caseworkers. She confirmed that TLS were asking TO to collect money that was owing to TLS. She confirms that she saw PF and NI do work on the files in question and call RS for money. She was not aware what qualifications PF and NI had.

PK then gave evidence. He adopted his statement of December 2005 (pages 132 – 135). He was very familiar with the office in question and the TLS involvement and in particular the role of the two senior workers PF and NI who worked for TLS at this office. He was able to confirm his first hand knowledge of the agreement between FE of TLS and TO.

TO, the Person Charged, gave evidence and adopted his statement of December 2005 (pages 113 – 126). He set out clearly the business relationship and agreement between himself and TLS and in particular FE a partner in TLS. He confirmed the involvement of PF and NI who worked for TLS as caseworkers at the office in question. TO in his statement sets out seriatim a denial of the complaints made against him and a detailed explanation of the position that he maintains existed at all material times.

This tribunal unanimously finds the charges against TO, the person charged, have not been proven and that the Prosecutor has failed to establish its case on the balance of probabilities. Accordingly this Tribunal dismisses the charges brought by the Prosecutor in these proceedings.

The complaint herein was initiated when RS engaged TH as her immigration adviser. It is clear that TH felt that on the account of the history there were grounds for concern about the previous service RS had received. TH made limited inquiries and appears to have based his judgment on information and limited records given to him by RS. It is to be noted that RS had not complained to anyone prior to this. TH concluded that TO had acted improperly. He conscientiously reported his concerns by way of a formal complaint to OISC. OISC investigated the complaint based on the limited information provided by TH. Their inquiries were also limited and somewhat narrow. TO was confused at and by the allegations against him personally in the circumstances and was inhibited by the fact that he did not possess any of the papers from the file on RS. His case from the outset was that he worked for TLS and RS was a client of TLS whom he met and consulted with on their behalf.

The letter of engagement with TLS dated 11^th September 2002 sets our clearly the relationship that RS entered into when she engaged TLS. That letter signed by TO states at the end of the first paragraph; “I am the branch manager at this office. However, Mr. FE will be responsible for handling your case.” RS does not dispute the import of this letter and the contents thereof.

This tribunal have been troubled from the outset by the difficulty presented to the prosecutor by the involvement of TLS. Correspondence from TLS denies any knowledge of RS or her file. We note however that although the ISC first wrote to FE of TLS, all replies were from YO a partner of TLS and there is no evidence of any direct communication with FE who was identified in the letter of engagement as the person responsible for handling the case for RS.

This tribunal found even on the evidence of RS that TO tried to act in her best interests. In her evidence we find it difficult to decipher the substance of any serious complaint that she makes against TO.

The evidence of AK and PK supported the detail of the account given by TO. It seems that the ISC never had the advantage of being aware of this evidence.

This tribunal were impressed with the evidence given by TO who appeared to us to be giving his account honestly and to the best of his ability in obviously difficult circumstances.

If the correspondence from TLS is correct, then TO has not only acted fraudulently but he has committed perjury before this Tribunal. We feel this is unlikely. In fact the Prosecutor specifically does not allege serious allegations of fraud or dishonesty against the Person charged. On the contrary the Prosecutor states that they do not allege TO has acted fraudulently or dishonestly. We are not satisfied that the correspondence from TLS is to be relied on and certainly not to be accepted before the testimony of the witnesses we have had the benefit of hearing in this case.

There can be no doubt that there may be cause for concern and possibly serious concern about the records and the conduct of business by those handling the case for RS under the letter of engagement of the 11^th September 2002 but we are not satisfied on the balance of probabilities that it has been established that the responsibility for any such concern can be attributed to TO.

In relation to those charges against TO post the 1^st February 2003, we find in the absence of evidence to the contrary that we accept the evidence of TO and find that he did act in the best interests of RS in so far as he could. Again in the absence of evidence to the contrary we accept the evidence of TO that the money collected was money owed to TLS and assigned by them to TO for monies owed by TLS to TO. Again in light of the limited evidence about phone calls made by TO to RS and her sister in law we are not satisfied that there was any menace or intent to interfere with witnesses and there is insufficient evidence to establish the charges made against TO in the circumstances.

This Tribunal understand the concerns of TH and the ISC. It is important that there is careful monitoring of the services provided by all those persons referred to in this case who hold themselves out as to fit to provide such services. We accept that careful monitoring and auditing is justified as many questions remain unanswered.