Tribunal quashes SRA ban citing ‘inconsistent’ approach
Topics: Regulation and compliance
The Solicitors Disciplinary Tribunal has quashed a Solicitors Regulation Authority decision to ban an immigration specialist, saying that an adjudicator had failed to take account of all the evidence.
Huseyin Arslan had been a non-solicitor immigration adviser who was barred in January 2015 by the SRA from being employed by any solicitors’ firm. He was also fined £500.
While instructed by an unnamed firm in relation to an asylum claim, the Children’s Society, on behalf of Arslan’s client, made a complaint of sexual harassment to the SRA.
On Christmas Eve 2013 the SRA emailed to raise the sexual harassment allegations. The regulator concluded in February 2014 that insufficient evidence existed to support the Children’s Society allegation, although the tribunal noted this information was not communicated to Arslan until August 2014.
In the meantime, subsequent exchanges had raised further allegations that Arslan had created attendance notes and altered original documents. He denied creating or amending any documents in relation to the harassment allegation, and denied provided false or misleading information to the SRA.
The SRA had taken the regulatory decision internally through an adjudicator, but Arslan appealed to have it quashed at the Solicitors Disciplinary Tribunal.
In its ruling the tribunal found in one instance the case adjudicator showed a ‘lack of a proper consideration’ of Arslan’s explanation for amending a note, and that the SRA had failed to properly investigate his account.
The adjudicator had been wrong to find Arslan had provided false and misleading information, and did not find to the civil or criminal standard that a particular document was created to mislead.
The tribunal said the adjudicator had been ‘inconsistent’ in his treatment of documents and took insufficient account of the evidence available.
‘There was no evidence of bias on the part of the adjudicator, but his decisions were wrong on the facts, and where indicated, in law,’ said the tribunal.
Arslan argued that as the allegations - namely that he provided false and misleading information to the SRA - were so serious, they should be judged against the criminal rather than civil standard of proof, as they would have been if they had come at first instance before the SDT. Relying on the civil standard of proof was, he suggested, ‘inadequate’.
The SRA pointed out that Arslan was not alleged to have committed acts which constituted criminal conduct, and so there was no justification for applying the higher standard of proof.
The tribunal said it was ‘illogical’ that a different standard of proof could be used on the same set of facts, depending on whether or not the SRA chose to decide a case internally.
The SRA had full knowledge that the tribunal used a different and higher criminal standard, and in any case the tribunal said Arslan’s case merited the higher threshold.
The tribunal added it was ‘inappropriate’ for the SRA to operate its powers to impose a section 43 order and make disciplinary decisions under the statutory framework on the same set of underlying facts, when the use of its disciplinary powers was said to be for minor matters, whereas a section 43 order was for serious matters of misconduct.
Arslan also argued that the SRA acted outside of its jurisdiction and he had not been employed by the firm at the time of the alleged misconduct.
He said he had an agreement with the firm to provide advice services in the area of managed migration, for which his company was entitled to charge 50% of the profit costs.
The SRA said the argument was ‘misconceived’ and that he was employed as an immigration caseworker from July 2011 to September 2013.
The tribunal found the SRA had the jurisdiction to consider the imposition of a banning order, applied to those who were involved a legal practice. The SRA did not need to consider whether Arslan was ‘employed’ in these circumstances.