Upper Tribunal (Administrative Appeals Chamber), July 31, 2015, [2015] UKUT 450 (AAC)

Resolution Date:July 31, 2015
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:AE v The Commissioner for Immigration Services for Immigration Services (Immigration Services : all)
 
FREE EXCERPT

2

GIS/398/2014

IN THE UPPER TRIBUNAL Case No. GIS/398/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: M R Hemingway: Judge of the Upper Tribunal

Decision: The appellant's appeal to the Upper Tribunal is dismissed. The decision of the First-tier Tribunal sitting at London on 9 July 2013 under reference IMS/2013/3/LDR did not involve an error of law and shall stand.

REASONS FOR DECISION

Introduction

1. This appeal to the Upper Tribunal is brought, with a limited grant of permission, in respect of a decision of the First-tier Tribunal (F-tT), of 7 October 2013, confirming a decision of the respondent (the Immigration Services Commissioner) made on 24 December 2012 refusing to continue to register the appellant as an immigration adviser authorised to provide immigration advice and services at what is referred to as Level 3, and registering and authorising him, thereafter, to provide immigration advice and services at what is referred to as Level 1, only.

2. I held an oral hearing of the appeal on 18 March 2015. Thereafter, I found it necessary to direct further written submissions so that the parties could deal with the relevance of the decision of the Upper Tribunal KMI v The Immigration Services Commissioner [2013] UKUT 0520 (AAC). That decision seemed to me to have relevance to the issues I had to decide but had not been cited to me in earlier written submissions nor at the hearing. Having received the further submissions I thought it unnecessary to reconvene the oral hearing.

The background

3. The appellant, as I understand it, is the sole proprietor of Ebrahim and Co Asian Legal Advisory Service (Ebrahim and Co). There is, though, within the organisation another person registered to provide immigration services at Level 3. Ebrahim and Co provides advice and representation to its clients in the field of immigration law. According to his witness statement of 10 March 2013, which was filed for the purposes of the hearing before the F-tT, the appellant has been practising since at least 1990 and his organisation has been registered with the Immigration Services Commissioner (the Commissioner) since 2001. Other documentation suggests that the organisation was first registered in December 2002 but nothing turns on that.

4. The Commissioner has the task of regulating certain immigration advisers and certain organisations which provide advice and representation in that field. One of her key functions is to register and authorise individuals to provide immigration services at various levels. Level 1 is the most basic. Level 3 is the most advanced. Persons registered at Level 3 are, for example, authorised to carry out work which includes pursuing appeals to relevant specialist tribunals. There is, it is fair to say, a marked difference between Level 1, which is regarded as including only the giving of initial advice, and Level 3. The Commissioner also has a duty to set up and operate a complaints procedure, to investigate and determine complaints against providers of immigration services and to deal with applications for registration and continued registration by providers of such services. Further, the Commissioner publishes a code of standards and other rules which reflect the standards it expects from those providing immigration advisers.

5. The appellant was, immediately prior to the events recounted below, registered at Level 3 and it appears that there were no difficulties with respect to his registration until 2010. Around that time, however, it was noticed that there had been an increase in the number of complaints made against his organisation and, on 9 December 2010, the respondent conducted an audit. This involved, amongst other things, its visiting the appellant's business premises, its looking at case files and its discussing matters with the appellant and with Ms M Atcha, the other Level 3 registered adviser.

6. According to the respondent, the audit identified a number of issues of concern. This included matters such as the failure to keep proper records of all work undertaken on behalf of and of advice given to clients; the submitting of applications to the United Kingdom Borders Agency (UKBA) and/or the Home Office which lacked merit; the submitting of appeals which lacked merit; the submitting of applications which had been inadequately researched and the lodging of appeals in circumstances where the relevant decision sought to be challenged did not actually carry a right of appeal. It was said that the latter appeared to be a technique designed to stall the immigration process and that both Level 3 advisers (the appellant and Ms Atcha) had been told to discontinue this. It was also said that clients and third parties were experiencing difficulty in contacting the organisation. Some concerns were raised about some aspects of the appellant's behaviour towards others. The respondent set out certain of its concerns in writing on 25 January 2011 in what it called an ``identified issues report''. There was then a further audit which took place on 28 February 2012. This led to the production of a second ``identified issues report'' dated 29 March 2012. According to that second report, the respondent thought that there had been an attempt to address some concerns in that some case files now had attendance notes albeit that they contained little information and demonstrated little evidence that clients were being informed of the merits of their respective cases. The respondent, though, felt that the other concerns remained and noted that the practice of submitting applications and appeals which lacked merit had continued.

7. The respondent had also received specific complaints against the appellant and his organisation which it had investigated and determined. It is not necessary to go into significant detail regarding those but I have briefly summarised them below.

Complaint 6300

7 a). This complaint was made on 7 June 2011 by an officer of the UKBA. It was made because, it was said, after a client of the appellant had had an appeal dismissed by the First-tier Tribunal and had been refused permission to appeal to the Upper Tribunal, a request for a review by UKBA which did not adduce any new material had been submitted. According to the determination of the complaint the appellant had failed to keep proper records of advice given and instructions received, had failed to explain in writing the instructions taken and advice given and had failed to demonstrate adequate skill and competence.

Complaint 6302

7 b). This complaint was made on 8 June 2011. It concerned the lodging of an appeal to a tribunal in circumstances where, it was said, there was no right of appeal. The appeal had subsequently been struck out as being invalid. The determination of the complaint was to the effect that the appellant had failed to keep proper records and had failed to demonstrate adequate skill and competence in dealing with the application and appeal.

Complaint 6600

7 c). This complaint was made on 30 January 2012 by a former client. According to the determination of it, inappropriate steps had been taken which showed a lack of understanding of immigration law and procedure. It was also found that the appellant had shown ``contempt'' for the client and other professionals with respect to aspects of his behaviour. There was no client care letter and no clear and accurate notes had been kept.

Complaint 6294

7 d). This complaint was made on 6 June 2011 by an officer of the UKBA. It was on the basis that the appellant had made an application to the UKBA for it to reconsider an earlier adverse decision made in respect of one of his clients but that no new evidence had been put forward. The determination of the complaint found inadequate record keeping and a lack of evidence that the client had been properly advised or consulted. It was found that the advice given had been inadequate and that the appellant had not properly understood the relevant law and procedure.

Complaint 6345

7 e). This complaint was made on 4 July 2011 by an officer of the UKBA. It was triggered by the appellant's refusal to hand over passports belonging to two of his clients who were to be removed from the UK. In the determination of the complaint it was found that, in fact, the appellant had not been wrong to refuse to hand the passports to the UKBA but that he had been wrong to refuse, at a later date, to hand them over to his clients. The appellant had sought to justify that refusal on the basis that his clients owed him money for lodging an appeal to a tribunal. It was found that there was not, in fact, a right of appeal and that the lodging of the appeal had demonstrated an ignorance of relevant immigration law and practice. It resulted in a delay in the clients being returned to India, which is what they had come to accept should happen, and the prolonging of their detention in the UK for a period of some months.

Complaint 6275

7 f). This complaint was lodged by a former client regarding the quality of advice received. It was resolved against the appellant. The investigation into it included an analysis of the appellant's practise of lodging appeals in circumstances where there was or might not be a right of appeal. It involved the obtaining, by the respondent, of an expert report. That report was provided by one Mr M Hanley, an immigration practitioner, who was of the view that there was no proper basis for lodging appeals in circumstances where the appellant had asserted there was.

8. The appellant, it is right to say, disputed, to a very large extent, the findings in respect of each complaint and the findings from the audits. In the context of the six complaints mentioned above, he did not accept that there had been any failing with respect to appropriate documentation such as attendance notes. He did not accept that unmeritorious representations or applications had been made. He said there had...

To continue reading

REQUEST YOUR TRIAL