Upper Tribunal (Immigration and Asylum Chamber)

 

Upper Tribunal

(Immigration and Asylum Chamber)

 

RK (entitlement to represent: s. 84) Bangladesh [2011] UKUT 00409(IAC)

 

 

THE IMMIGRATION ACTS

 

 

Decided without a hearing	Determination
pursuant to rule 34 of the	sent out on 21st September 2011
Tribunal Procedure (Upper Tribunal) Rules 2008	…………………………………

 

 

Before

 

UPPER TRIBUNAL JUDGE P R LANE

 

 

Between

 

RK

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Respondent

 

 

(1) Section 84(1) of the Immigration and Asylum Act 1999 provides that no person may provide immigration advice or immigration services unless he is a qualified person.

 

(2) Section 82(2) provides that references to the provision of immigration advice or immigration services are to the provision of such advice or services by a person in the United Kingdom “in the course of a business carried on (whether or not for profit) by him or by another person”.

 

(3) Rule 48(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides that “an appellant … may … be represented by any person not prohibited from representing him by section 84 … “.

(4) Accordingly, where a family friend was seeking (otherwise than in the course of a business) to represent the appellant at a hearing, the Immigration Judge had no right to restrict the friend’s involvement to that of a Mackenzie Friend on the basis that he was not legally qualified (see also HH (Sponsor as representative) Serbia [2008]UKAIT 00063).

 

 

DETERMINATION AND REASONS

 

1.  Neither party has objected to the findings and proposed course of action proposed in the grant of permission of 4 July 2011, which were as follows.

 

2.  There is a clear error in the approach of the Immigration Judge, at the hearing of the appellant’s asylum appeal, regarding the involvement at that hearing of Mr Chowdhury. Rule 48(1) of the 2005 Procedure Rules provides that an appellant “may ... be represented by any person not prohibited from representing him by section 84 of the Immigration and Asylum Act 1999”. Since there is no suggestion that Mr Chowdhury, a family friend, in seeking to represent the appellant, was acting in the course of a business, whether or not for profit, he was not prohibited by section 84 from representing the appellant (see section 82(2)). The Immigration Judge thus had no right to restrict Mr Chowdhury’s involvement to that of a Mackenzie Friend on the basis that he “was not legally qualified” (paragraph 11 of the determination); in particular, by preventing him from making direct submissions to the Tribunal.

 

3.  I am satisfied from the grounds that this error materially affected the presentation of the appellant’s case, including her own ability to give evidence. As a result, the appellant was deprived of a fair hearing and I have decided, compatibly with the Practice Statements of February 2010, that the determination should be set aside and the appeal remitted to the First-tier Tribunal.

 

 

DIRECTIONS

 

1.  That Tribunal is hereby directed pursuant to section 12(3) of the Tribunals, Courts and Enforcement Act 2007 to reconsider the appeal de novo at a hearing before an Immigration Judge, other than Immigration Judge Pycott.

 

2.  The parties are hereby directed pursuant to that section to serve all documentary material on which it is intended to rely (including witness statements) not later than 7 days before the forthcoming hearing.

 

 

Signed

 

 

Upper Tribunal Judge P R Lane

Immigration and Asylum Chamber