Asylum: Firm’s fees were not excessive
An immigration firm fell below its expected standards “in a number of respects” but this did not justify the decision to withdraw its licence to operate, a tribunal has ruled.
Among the findings of the Immigration Services Commissioner rejected by the First-tier Tribunal (FTT) was that Liverpool firm YV Enterprise breached confidentiality by sharing client information with a compliance consultancy it brought in to help with the regulatory investigation.
The FTT recorded [1] that YV was founded by Vano Dentoshvili and employed six people handling 900-plus cases.
It appealed against the commissioner’s decision of last November to cancel its authorisation to provide immigration advice and immigration services.
Immigration advisers who are not regulated lawyers must be registered by the Immigration Advice Agency, headed by the commissioner, to work in this area.
The IAA’s investigation arose out of complaints by two clients over their claims for asylum, for which they were charged £2,600. One claim was refused, the other withdrawn.
The FTT rejected the suggestion that the fees were inherently unreasonable simply because they exceeded YV’s published fee scale of £960 each.
However, whilst the charges were “capable of justification”, the contemporaneous documentation “failed adequately to explain the basis upon which the uplift had been agreed or calculated”.
This reflected administrative failings at the company. The FTT said: “We have found significant deficiencies in record keeping, client care documentation, file management, fee explanations and compliance with certain provisions of the code.
“We have also found that the complainants’ file was not transferred within a reasonable period and that aspects of [its] administrative systems were inadequate.
“Those matters are properly capable of criticism and are relevant to the tribunal’s assessment of competence and regulatory compliance.”
But, unlike the commissioner, the FTT did not accept that YV instructed clients to conceal its involvement from the Home Office, fabricated client-care documentation and attendance notes, or deliberately misled the regulator.
“The distinction between those matters and the breaches that we have found is an important one. The conduct established by the evidence demonstrates poor administration, inadequate documentation, weak compliance and shortcomings in professional practice.
“It does not establish dishonesty, fabrication, deliberate concealment or a lack of integrity.”
So while the deficiencies identified were “serious and requiring improvement, we are not satisfied that they demonstrate that the [firm] is currently unfit to provide immigration advice and services…
“They do not amount to a finding that [it] lacks integrity or is fundamentally incapable of providing immigration advice and services. Nor are we satisfied that the evidence demonstrates a level of present risk to the public sufficient to justify removal from the register.”
The FTT noted that YV had taken steps to address the identified shortcomings. “In those circumstances, had we concluded that regulatory intervention remained necessary, we would have regarded cancellation of registration as a disproportionate response to the findings actually made by the tribunal.
“The deficiencies identified are capable of being addressed through compliance measures, monitoring and improvement of administrative systems.”
On the alleged breach of confidentiality by sharing client information with compliance business Kompliance, it was accepted that the clients did not expressly consent.
However, under article 6(1) of the UK GDPR, consent was “only one of several potentially lawful bases for processing personal data”, the FTT said.
YV had a “legitimate interest in obtaining assistance from a compliance and regulatory adviser in responding to allegations made against it”, thereby engaging article 6(1)(f).
“We are likewise not satisfied that disclosure to a compliance adviser retained for the purpose of responding to a live regulatory complaint is properly characterised as a breach of confidentiality in the circumstances of this case.
“The evidence before us was that Kompliance Ltd was retained specifically to assist the appellant in responding to allegations made against it and that the disclosure occurred for that purpose.
“On the evidence available to the tribunal, disclosure in those circumstances is materially different from disclosure to an unrelated third party for an unconnected purpose.”