RK v The Secretary of State for the Home Department

Under section 84(1) of the Immigration and Asylum Act 1999, read with section 82(2), the prohibition on unqualified persons providing immigration advice or services applies only where the advice or services are provided in the course of a business. Rule 48(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 therefore permits representation by a family friend acting otherwise than in the course of a business.

An Immigration Judge may not restrict such a representative to the role of a Mackenzie Friend merely because that person is not legally qualified. Where that error materially impairs presentation of the appeal or the appellant’s evidence, it deprives the appellant of a fair hearing and requires the determination to be set aside.

The appellant appealed against the determination of an Immigration Judge in her asylum appeal. At the hearing below, the appellant’s family friend, Mr Chowdhury, was prevented from making direct submissions and was confined to acting as a Mackenzie Friend because he was not legally qualified.

On a grant of permission dated 4 July 2011, the Upper Tribunal identified a possible error concerning the entitlement of an unqualified family friend to represent an appellant under section 84 of the Immigration and Asylum Act 1999 and rule 48(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. Neither party objected to the proposed course. The central issue was whether the restriction on the friend’s participation had denied the appellant a fair hearing.

1. The appeal was allowed. The Upper Tribunal set aside the Immigration Judge’s determination and remitted the appeal to the First-tier Tribunal for a de novo hearing before a different Immigration Judge.

2. Rule 48(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 allowed an appellant to be represented by any person not prohibited by section 84 of the Immigration and Asylum Act 1999. Section 84(1) prohibited the provision of immigration advice or services by an unqualified person. However, section 82(2) confined those expressions to advice or services given in the United Kingdom in the course of a business, whether or not for profit.

3. There was no suggestion that Mr Chowdhury, a family friend, was acting in the course of a business. He was therefore not prohibited from representing the appellant. The Immigration Judge had no right to restrict him to the role of a Mackenzie Friend because he was not legally qualified, particularly by preventing him from making direct submissions.

4. The error materially affected presentation of the appellant’s case, including her ability to give evidence. It consequently deprived her of a fair hearing. Applying the February 2010 Practice Statements, the appropriate course was to remit the matter for a complete rehearing. Directions were made under section 12(3) of the Tribunals, Courts and Enforcement Act 2007.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the Immigration Judge’s determination for material procedural unfairness, and remitted the appeal for a de novo hearing.
• Immigration Judge: determined the appellant’s asylum appeal after restricting her family friend’s participation to that of a Mackenzie Friend.