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Cite as: [2015] UKUT 450 (AAC)

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AE v The Commissioner for Immigration Services for Immigration Services (Immigration Services : all) [2015] UKUT 450 (AAC) (31 July 2015)

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 520 (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 been no refusal to surrender passports. In particular, with respect to the contentions regarding the inappropriate lodging of appeals, a matter which had cropped up to some extent in four of the determined complaints, he sought to explain and defend the lodging of what he referred to as “protective notices of appeal”. He argued that such appeals had often succeeded and that the lodging of them had also served to prevent, in many cases, the unlawful detention and removal of his clients. I shall discuss further, and in more detail, below, what appears to be meant by “protective notices of appeal” and the appropriateness or otherwise of the lodging of them.

9. In any event, in light of all of the above, and upon the appellant’s application for continued registration, the respondent took the decision, on 24 December 2012, to refuse to continue to register the appellant at Level 3, to vary his registration, and to register him, thereafter, to provide immigration advice and services at Level 1 only.

The relevant law

10. I have found it necessary to set out, in some detail, something of the legislative framework regarding the functions and duties of the OISC. Given the point about “protective notices of appeal” I have also thought it helpful to set out key aspects of the law relating to the rights of appeal to First‑tier Tribunals in the Immigration and Asylum Chamber, as they were at the material times with which this appeal is concerned.

11. The relevant legislation regarding the Immigration Services Commissioner is contained within the Immigration and Asylum Act 1999. The relevant parts, for the purposes of this appeal, read as follows:

83 The Commissioner

(1) There is to be an Immigration Services Commissioner (referred to in this Part as ‘the Commissioner’).

(2) …

(3) It is to be the general duty of the Commissioner to promote good practice by those who provide immigration advice or immigration services.

(4) In addition to any other functions conferred on him by this Part, the Commissioner is to have the regulatory functions set out in Part 1 of Schedule 5.

(5) The Commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services –

(a) are fit and competent to do so;

(b) act in the best interests of their clients;

(d) do not seek to abuse any procedure operating in the United Kingdom in connection with immigration or asylum (including any appellate or other judicial procedure);

(e) do not advise any person to do something which would amount to such an abuse.

12. It is then necessary to look at Schedules 5 and 6 to the 1999 Act. The relevant provisions contained within Schedule 5 are as follows:

Investigation of complaints

5. (1) The Commissioner must establish a scheme (‘the complaints scheme’) for the investigation by him of relevant complaints made to him in accordance with the provisions of this scheme.

(2) …

(3) A complaint is a relevant complaint if it relates to –

(a) the competence or fitness of a person to provide immigration advice or immigration services,

(b) the competence or fitness of a person employed by, or working under the supervision of, a person providing immigration advice or immigration services,

(d) an alleged breach of one or more of the Commissioners rules by a person to whom they apply, or …

6. (1) The complaint scheme must provide for a person who is the subject of an investigation under the scheme to be given a reasonable opportunity to make representations to the Commissioner…

Determination of complaints

8. (1) On determining a complaint under the complaints scheme, the Commissioner must give his decision in a written statement.

(2) The statement must include the Commissioner’s reasons for his decision.

(3) A copy of the statement must be given by the Commissioner to –

(a) the person who made the complaint; and

(b) the person who is the subject of the complaint.

9. (1) On determining a complaint under the Complaints Scheme, the Commissioner may –

(a) if the person to whom the complaint relates is a registered person or a person employed by, or working under the supervision of a registered person, record the complaint and the decision on it for consideration when that registered person next applies for his registration to be continued;

(b) if the person to whom the complaint relates is a registered person or a person employed by, or working under the supervision of, a registered person and the Commissioner considers the matter sufficiently serious to require immediate action, require that registered person to apply for continued registration without delay;

(c) if the person to whom the complaint relates falls within paragraph (c), (d), (e) or (f) of section 84(2), refer the complaint and his decision on it to the relevant regulatory body;

(d) if the person to whom the complaint relates is certified by the Commissioner as exempt under section 84(4)(a) or is employed by, or working under the supervision of, such a person, consider whether to withdraw that person’s exemption;

(e) lay before the Tribunal a disciplinary charge against a relevant person.

and under Schedule 6,

Registration

2. (1) If the Commissioner considers that an applicant for registration

Is competent and otherwise fit to provide immigration advice

and immigration services, he must register the applicant.

(2) Registration may be made so as to have effect -

(a) only in relation to a specified field of advice or

services;

(b) only in relation to the provision of advice or

services to a specified category of person;

services to a member of a specified category

of person; or

(d) only in specified circumstances.

Review of Qualifications

3. (1) At such intervals as the Commissioner may determine, each registered person must submit an application for his registration to be continued.

(2) Different intervals may be fixed by the Commissioner in relation to different registered persons or descriptions of registered person.

(3) An application for continued registration must –

(a) be made to the Commissioner in such form and such manner, and

(b) be accompanied by such information and supporting evidence,

as the Commissioner may from time to time determine.

(4) When considering an application for continued registration, the

Commissioner may require the applicant to provide him with

such further information as or supporting evidence as the

Commissioner may reasonably require.

(5) If the Commissioner considers that an applicant for continued registration is no longer competent or is otherwise unfit to provide immigration advice or immigration services, he must cancel the applicant’s registration.

(6) Otherwise, the Commissioner must continue the applicant’s registration but may, in doing so, vary the registration –

(a) so as to make it have limited effect in any of the ways mentioned in paragraph 2(2); or

(b) so as to make it have full effect.”

13. As to appeals from a decision of the Immigration Services Commissioner to the First‑tier Tribunal, the relevant parts of sections 87 and 89 of the Immigration and Asylum Act 1999 say this:

87 The Tribunal.

(1) There is to be a tribunal known as the Immigration Services Tribunal (referred to in this Part as ‘the Tribunal’).

(2) Any person aggrieved by a relevant decision of the Commissioner may appeal to the Tribunal against a decision.

(3) “Relevant decision” means a decision –

(a) to refuse an application for registration made under paragraph 1 of Schedule 6;

(b) to withdraw an exemption given under section 84(4)(a);

(d) to refuse an application for continued registration made under paragraph 3 of that Schedule;

(e) to vary a registration on an application under paragraph 3 of that Schedule;

(ee) to vary a registration under paragraph 3A of that Schedule;

(f) which is recorded under paragraph 9(1)(a) of Schedule 5.

89 Disciplinary charge upheld by the Tribunal

(1) This section applies if the Tribunal upholds a disciplinary charge laid

by the Commissioner under paragraph (9)(1)(e) of Schedule 5 against

a person (“the person charged”).

(2) …

(3) The Tribunal may-

(a) direct the Commissioner to record the charge and the Tribunal’s decision on it for consideration when the registered person next applies for continued registration; or …

14. Turning now to the rights of appeal given to persons in respect of decisions made by or on behalf of the Secretary of State for the Home Department concerning their immigration applications made to it, those rights were, as at the material times, contained within the Nationality, Immigration and Asylum Act 2002. I set out the relevant provisions below.

82. Right of appeal: general

(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(2) In this Part “immigration decision” means –

(a) refusal of leave to enter the United Kingdom,

(b) refusal of entry clearance,

(d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

(e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,

(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,

(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c), of the Immigration and Asylum Act 1999 (removal of a person unlawfully in the United Kingdom),

(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971(control of entry: removal),

(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),

(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (seamen and aircrews),

(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),

(j) a decision to make a deportation order under section 5(1) of that Act and

(k) refusal to revoke a deportation order under section 5(2) of that Act.

(3) …

(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.

86. Determination of appeal

(1) This section applies on an appeal under section 82(1), 83 or

83A.

(2) The Tribunal must determine –

(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1), and

(b) any matter which section 85 requires it to consider.

(3) The Tribunal must allow the appeal in so far as it thinks that –

(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

(4) For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by a reference to removal under another provision.

(5) Insofar as subsection (3) does not apply, the tribunal shall dismiss the appeal.

(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection 3(b).

92. Appeal from within the United Kingdom: General

(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).

(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if –

(a) at the time of the refusal the appellant is in the United Kingdom, and

(b) on his arrival in the United Kingdom the appellant had entry clearance…

(4) This section also applies to an appeal against an immigration

decision if the appellant-

(a) has made an asylum claim, or a human rights

claim, while in the United Kingdom, or…

94. Appeal from United Kingdom: unfounded human rights or

asylum claim

(1) This section applies to an appeal under section 82(1) where the

appellant has made an asylum claim or a human rights claim (or

both).

(1A) A person may not bring an appeal against an immigration

decision of a kind specified in section 82(2)(c), (d) or (e) in

reliance on section 92(2) if the Secretary of State certifies that

the claim or claims mentioned in subsection (1) above is or are

clearly unfounded.

(2) A person may not bring an appeal to which this section applies in

reliance on section 92(4)(a) if the Secretary of State certifies that

the claim or claims mentioned in subsection (1) is or are clearly

unfounded.

15. So, as at the times with respect to which this appeal is concerned, a person had a right of appeal against an immigration decision which had been made in respect of him or her. The term “immigration decision” was defined at section 82(2). That subsection, in fact, constituted an exhaustive list of the type of decisions which fell within that definition. So there was no right of appeal against any decision which was not within that list. An appeal against such an immigration decision (that is a type of decision which was within that list) had to be brought on one or more of the grounds specified in section 84(1). That did include, for example, a ground that the decision was unlawful under section 6 of the Human Rights Act 1998. Some appeals against certain immigration decisions could be brought whilst the person appealing was in the UK but others could only be appealed from abroad. The function of section 92 was to set out which was which. It did so, principally, by specifying which type of immigration decision as set out in section 82(2) carried an in‑country right of appeal. Section 92(4), though, said that there was also an in‑country right of appeal against an immigration decision (whichever type of decision within section 82(2) it was) if the person seeking to appeal had made an asylum claim or a human rights claim whilst in the United Kingdom. However, section 92(4) was disapplied as a consequence of section 94(2) where the Secretary of State had certified the relevant asylum or human rights claim as unfounded. Such certification, by way of brief background, is a formal process which may be challenged, in appropriate circumstances, by way of judicial review but in respect of which no statutory appeal is provided.

16. I note, at this stage, that the appellant does not accept the above analysis as set out in the proceeding paragraph but it does seem to me it follows inexorably from the language of the statute.

The decision of the First‑tier Tribunal

17. The F‑tT held an oral hearing. The appellant attended and gave evidence. He was represented by his colleague Ms Atcha. The respondent was represented by Mr M Bisgrove of counsel and evidence was given by two employees of the Commissioner being Ms C Davies, a case worker and Ms D Gilchrist, a complaints senior team manager. After hearing evidence and submissions and after considering the various documents before it, which included post hearing written arguments supplied by both parties (which it referred to as “closing submissions”), the F‑tT dismissed the appeal. It explained why in its written reasons of 7 October 2013.

18. The F‑tT identified the central issue for it to resolve in this way:

“ 21. The core issue in this appeal is, of course, the issue of whether or not the Respondent had good and sufficient reasons to amend the level at which the Appellant was authorised to provide immigration advice and services, by, through her material Decision of 24 December 2012, refusing his application for continued registration as a Level 3 adviser, and authorising him thereafter to provide such services at Level 1 only.

22. In the course of the hearing it was submitted on behalf of the Respondent that the particular issues in this appeal relating to the aforesaid core issue were threefold, namely:

(a) failings in file maintenance and record keeping;

(b) failings in the competence of the advice and services given;

23. It was accepted on behalf of the Appellant that these were indeed the material particular issues in the Appeal, and the parties, in the course of the Appeal, and in their post‑hearing written submissions dealt fully with those issues.”

19. The F‑tT, in stating why it resolved the issues against the appellant, then turned to the question of the six complaints and the findings which have been made by the Commissioner upon them. It said this:

“ 34. In this regard the Respondent relied upon six complaints against the Appellant, and her findings comprised the determinations of those complaints, made between August and September 2012.

35. Each of those complaints was upheld, and determined “against” the Appellant.

36. It is important to note that in the course of the hearing the Tribunal ruled, as it has consistently in past Appeals, that it is not, cannot be, and should not be a function of the Tribunal to seek to re‑examine the merits of complaints against advisers – to seek to “go behind” the determinations, because each complaint against an adviser is the subject of a full and final investigative process. This ruling was accepted by both the Appellant and the Respondent in this Appeal.

37. The tribunal has regard simply and solely to the determination of a complaint, and to the substance of that determination.

38. In the Closing Submissions of the Appellant, he has sought to discuss, and make assertions about the merits of the complaints and their determinations. Whilst the Tribunal fully understands why he should wish to do this, nevertheless the Tribunal has had regard solely to the facts established by the determinations, in terms of those breaches of the Commissioners Code and Rules which the Respondent found had been committed by the Appellant in the course of his conduct relating to each of the complaints.

39. Those material facts established by those determinations, in terms of breaches of the Code and Rules, and the basis of each complaint, are set out properly and accurately within the terms of the aforesaid ruling, in paragraphs 38 to 128 of the Closing Submissions of the Respondent.

40. Starkly, comprised in the six determinations are 44 breaches of the Code by the Appellant, 16 separate Codes have been breached – (in the order in which the breached Codes appear in the Submissions) Code 11 on five occasions, Code 18 on two occasions, Code 33 on four occasions, Code 81 on four occasions, Code 84 on three occasions, Code 4 on two occasions, Code 9 on two occasions, Code 72 on one occasion, Code 13 on nine occasions, Code 17 on two occasions, Code 34 on one occasion, Code 6 on one occasion, Code 36 on one occasion, Code 88 on five occasions, Code 20 on one occasion and Code 30 on one occasion.

41. The substance of each of these Codes may be found in Appendix 1 of the Closing Submissions of the Respondent.

42. Suffice it for the Tribunal to state that, in its consideration, cumulatively these breaches of the Code establish a gross failure of competence on the part of the Appellant as a Level 3 adviser.”

20. In the context of this appeal to the Upper Tribunal what was said, in particular, at paragraphs 36 and 38 has been of particular significance.

21. Having explained its approach to the complaints and determinations, and what it made of them, the F‑tT then went on to consider the matter of the “protective notices of appeal”. It said this:

“ 43. The investigation of one of the aforesaid complaints, C6275, comprised a scrutiny of the practice of the Appellant of lodging, on behalf of many of his clients, what are known “protective” notices of appeal in cases where there has been a refusal of an application for “leave to remain”, and where there was no substantive, or any, ground for an appeal.

44. The effect of the issue of a notice of appeal is to delay the removal from UK the person who has been refused the right to remain.

45. The Appellant accepts that on many occasions he did “automatically” issue such notices of appeal. He asserted that this practice was justified by Civil Procedure Rules, and by case law, and asserted also that very many of the appeals which he had lodged in this manner had been successful.

46. Independent expert legal opinion obtained by the Respondent established that there was no justification either by procedural rules or by case law for the practice of issuing such “protective” notices of appeal, and that, where an application for leave to remain had been refused, and there was no existing leave to remain, and no immigration decision had been made, there was essentially nothing to appeal.

47. Despite the assertion of the Appellant as to the successful outcome of many of his appeals – he said in evidence that 50 cases in which such ‘protective’ notices of appeal had been issued had gone to a hearing – he failed to produce to the Respondent, in the course of her material investigation, any examples of “protective” notices of appeal which had been substantively listed for hearing.

48. In the course of the hearing of this Appeal, the Appellant did produce to the Tribunal a single judgment of the First‑tier Tribunal (Immigration and Asylum Chamber), handed down by Immigration Judge Blake in March 2011. That judgment concerned the appeal of [name of the appellant in that case], a client of the Appellant, against a refusal of leave to remain. That appeal was allowed, not under immigration law but under Human Rights law, pursuant to Article 8 of ECHR. However, a scrutiny of the judgment revealed that Judge Blake had said “however, I have to say that the manner in which Ebrahimi (sic) and Co prepared statements for the appellant and for her partner left a very great deal unsaid. So concerned am I about the behaviour of Ebrahimi and Co that I intend to refer their conduct to the Office of the Immigration Services Commissioner by way of a detailed complaint about them”.

49. No other specific examples of ‘protective’ notices of appeal which, having been issued ‘automatically’, had produced a positive result, at least by way of a substantive hearing, have been submitted by or on behalf of the Appellant to the Respondent or to the Tribunal.

50. The Tribunal accepts the assertion of the Respondent that such Notices have been on many occasions issued by the Appellant without due consideration to the merit of an appeal, and without, considered, or any, advice being given to the relevant client, and that the issue of such Notices has resulted in charges to clients whose “appeal” had no merit, and that the issue of such Notices is capable of causing unwarranted delay in due process, in respect of the removal of those persons without a right to remain in the United Kingdom.

51. The Tribunal concludes that the Appellant has failed successfully to refute the assertion of the Respondent that his practice of issuing “protective” notices of appeal demonstrated a failure of competence as a Level 3 adviser.”

22. The F‑tT then went on to consider the various other concerns identified as a result of the audits, regarding matters such as the absence of attendance notes and records of advice given, the absence of receipts for fees, and deficient client care letters. It noted the position taken by the appellant with respect to those matters in this way:

“ 56. The material evidence and assertion of the Appellant in this regard is that the conduct of Ms Davies and Ms Gilchrist was, essentially, incompetent and improper. That they did not read the files properly, and would not listen to any representations made, or reasons given, by the Appellant about issues raised during the audit.”

23. The F‑tT noted that Ms Davies and Ms Gilchrist had given evidence before it and had been cross‑examined. It expressed the view that each had responded robustly, comprehensively, cogently and convincingly to points raised in cross‑examination and said that it “overwhelmingly” preferred their evidence and assertions to those of the appellant. It concluded as to these matters:

“ 60. The tribunal considers that the audits of December 2010 and February 2012 were carried out with due care and professionalism, and did disclose significant deficiencies in ‘file management and record keeping’, which the Respondent was fully entitled to take into account in the overall assessment of the competence of the Appellant as a Level 3 adviser.”

24. The F‑tT then moved on to consider what it described as the “alleged failings in the standards of professional conduct towards clients and third parties”. It said it had reviewed a body of correspondence emanating from the appellant and addressed to the UKBA, the respondent, to solicitors and to a client. It identified, therein, what it thought to be disrespectful and intemperate language. By way of conclusion as to that issue it said this:

“ 69. The Tribunal does not consider that this issue of ‘failings in the standards of professional conduct’ can, in itself, be determinative of the appeal. This issue is material to fitness, rather than to competence. However, the tribunal recognises that an adverse (to the Appellant) view of the relevant disrespectful and intemperate language can validly be taken, in terms of the fitness of the Appellant, and it does consider that the Respondent was entitled to take this issue into account in her overall consideration of the fitness and competence of the Appellant as a Level 3 adviser.”

25. In setting out its overall conclusion the F‑tT said this:

“ 70. The Tribunal concludes that the findings of the Respondent in respect of the aforesaid complaints, and the established breaches of the Code comprised in these findings, are themselves of sufficient gravity to justify the Respondent in her view that the Appellant is not competent to provide immigration advice and services as a Level 3 adviser.

71. “A fortiori” the Tribunal concludes that, cumulatively, its conclusions in respect of the issue of the complaints, and of the “protective” notices of appeal, and of the significant failings of the Appellant with respect to file maintenance and record keeping, and of those failings and professional standards of conduct identified above, fully justify the Decision of the Respondent to refuse the application for continued registration as an immigration adviser authorised to provide immigration advice and services at level 3, and authorising him now to provide immigration advise and services at Level 1 only.”

26. That concluded the F-tT’s reasoning.

The permission stage

27. The appellant sought permission to appeal to the Upper Tribunal. The written grounds took a range of points which, in summary, were to the effect that it had been agreed at the hearing before the F‑tT that the six determined complaints referred to above could not be relied upon by the respondent yet the F‑tT, in its written reasons, had relied upon them; that the F‑tT had failed to provide adequate reasons for its decision; that the F‑tT’s approach had been “one‑sided”; that the F‑tT had been wrong to criticise the appellant’s use of “protective notices of appeal” and in particular had failed to consider the content of section 92(4) of the Nationality, Immigration and Asylum Act 2002 and the judgment in Nirula [2012] EWCA Civ 1436 in this context. The appellant also seemed to suggest appeals could be lodged under section 94(2), though in so doing I think he meant to say 92(4). He also contended that appeals could be lodged under section 86(3). The appellant also applied for an order suspending the effect of the F‑tT’s decision.

28. On 5 June 2014, and after an oral hearing of the application for permission, Upper Tribunal Judge Jacob’s granted permission to appeal on limited grounds. He did so in these terms:

“ 3. I refuse permission on most of the grounds advanced by Mr Ebrahim. They are, as I said to him at the hearing, expressed in very general terms. They are really no more than a series of headings with no content that is sufficiently specific to allow analysis in relation to the tribunal’s decision.

4. I have, however, given permission. Mr Ebrahim put two detailed arguments to me at the hearing. One concerned his use of protective notices of appeal; the other concerned the way in which the tribunal dealt with the complaints to the Commissioner about Mr Ebrahim. Those points are related. I have given permission because the role of the complaints and the Commissioner’s decisions on them merits the attention of the Upper Tribunal.

5. The First‑tier Tribunal set out its approach to the complaints and decisions in paragraph 36 of its reasons. I am willing to accept that what the judge wrote accurately states the practice, but was that correct in law? I note paragraph 9(1)(a) of Schedule 5 to the Nationality and Immigration Act 1999, which provides that the complaint and the decision on it should be recorded for consideration when that registered person next applies for his registration to be continued. That suggests that the complaint should not be determinative, but should be considered as one factor in the process. Should the Commissioner and the tribunal be entitled to look more closely? I note that it is both the complaint and the decision that may be considered. Why would the complaint be considered as well as the decision if it were not envisaged that its merits might be part of the consideration?”

29. The application for a suspension was refused.

30. The appellant was informed in writing that his only possible recourse, in relation to the refusal of permission to appeal on his other grounds, was by way of an application for judicial review. He made no such application.

The written submissions to the Upper Tribunal prior to the oral hearing

31. The respondent had supplied written arguments of 1 May 2014 which had been lodged in response to the application for permission to appeal. After the grant of permission the respondent filed a written response to the appeal of 10 July 2014. The appellant had provided his grounds of appeal and subsequently provided a reply to the respondent’s response which is undated but which was received by the Upper Tribunal on 10 August 2014. Both the response and the reply had a number of attachments. Both parties provided skeleton arguments for use at the hearing before me.

32. The position taken by the respondent, with respect to the matter of the determined complaints, was to the effect that whilst an F‑tT is able to consider the complaint and the decision on the complaint when determining an appeal it cannot substitute its own decision on the complaint for that of the Commissioner nor can it reopen the investigation into the complaint. The respondent, through Mr Bisgrove, noted that prior to 2004 there had been a right of appeal to the F‑tT against a decision recorded for consideration upon a complaint. That right, however, had been removed by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. There remained the right of an aggrieved person to challenge the recording of a complaint determination by way of judicial review.

33. On determining a complaint, contended Mr Bisgrove, the Commissioner was required to give a written decision and could then, if appropriate, take one of the five options set out in Schedule 5, paragraph 9(1) to the Immigration and Asylum Act 1999 (see above). Under Schedule 6, paragraph 3, the Commissioner would have to cancel a person’s registration if it were considered that he was no longer competent or was otherwise unfit to provide immigration services but may, if that severe state of affairs was not reached but there were still concerns, vary the registration (as indeed had happened here). A person aggrieved by a ‘relevant decision’ as defined in section 87 of the Immigration and Asylum Act 1999, had a right of appeal, under that section, to a First‑tier Tribunal but whilst the refusal or variation of an application for continued registration is a relevant decision, the recording of a complaint and decision is not. It followed, contended Mr Bisgrove, that the F‑tT had granted to it the power to overturn the Commissioner’s decision to refuse continued registration but did not have the power to overturn the Commissioner’s decision to determine and record a complaint. It was contended that to take any other view would mean that the Commissioner’s determination of a complaint would have no effect. It was further contended that a difference in the relevant statutory language used at different stages supported the argument. In this context, said Mr Bisgrove, paragraph 8 of Schedule 5 had defined the act of deciding the merits of a complaint as “determining a complaint” and the outcome of it was a “decision”. However, at the “continuing registration stage” as Mr Bisgrove called it, the process was to “record the complaint and decision on it for consideration”. Had Parliament intended that a complaint decision could be reopened at a later stage it could easily have said so in clear terms but had not. It was also suggested that similarity in language used at the stage where the tribunal (having had a disciplinary charge laid before it under paragraph 9 (1) (e) of Schedule 5) was directing the Commissioner to record a determined charge for consideration in connection with the person’s next application for continued registration (under section 89 (3)(a) of the Immigration and Asylum Act 1999, and the language used at the stage where the Commissioner would record a determined complaint for the same purpose, suggested that the meaning of the language would be the same in each instance. The fact that the Commissioner had no power to go behind a tribunal’s decision in determining a charge supported the contention that a tribunal had no jurisdiction to re determine a complaint on an appeal to it concerning a registration decision. The “consideration” would be the same process at both stages. Finally, Mr Bisgrove argued that there were public policy considerations based on the desirability of “finality in litigation” which supported the respondent and the F‑tT’s position. A comparison was made with the common law doctrine of issue estoppel. In any event, a complainant could not be satisfied that his or complaint had been finally dealt with even after the Commissioner had fully investigated and determined an issue if it could simply be reopened at an appeal hearing. Not only that, there might be evidential problems if an appeal was being heard some time after a complaint had been determined.

34. The respondent’s submissions also addressed the arguments regarding the “protective notices of appeal”. It was pointed out, correctly, that the term “protective notice of appeal” is not one recognised in immigration law. The appellant himself has not suggested that it is. It was pointed out that in four of the six complaints, appeals had been lodged which had turned out to be invalid. It was said, quite simply, that there was no arguable basis in law for lodging a notice of appeal where no right of appeal existed. Mr Bisgrove said that section 94 of the Nationality Immigration and Asylum Act 2002 did not, as the appellant had seemed to suggest, make provision for additional rights of appeal but that, rather, it created an additional restriction on such appeals (though as noted above I think the appellant had in mind section 92(4). Nirula did not support the appellant’s contentions.

35. The respondent’s position, accordingly, was that the F‑tT’s decision had been soundly made in all respects and was free from legal error.

36. The appellant’s initial position was set out in his grounds of appeal though, as noted above, not all of his arguments made at that time survived the permission stage. It was further explained in his reply and skeleton argument. It was his contention that the F‑tT had “power and discretion to review the complaint”, in other words that there was power to reopen determined complaints, and that this would be especially so in circumstances where, as it was suggested it had done here, the respondent had acted in a way “contrary to immigration law and procedure” and had acted “against public policy and the rule of law”. It was suggested, as had been argued unsuccessfully before the F‑tT, that the respondent had not acted fairly when considering and deciding the complaints. As to the “protective notices of appeal” it was claimed that judges in the First-tier of the Immigration and Asylum Chamber (IAC), in dealing with such appeals, had taken a different view of the law to that which had been taken by the respondent. This meant that no adverse conclusions with respect to competency could properly be reached on the basis of the lodging of such appeals. Various decisions taken by IAC judges in respect of clients of Ebrahim and Co were produced and pointed to as examples which demonstrated the appropriateness of the lodging of such appeals. The expert report which had been before the F‑tT had failed to refer to section 92(4) and, as such, was inadequate. In the reply the appellant observed:

“All the appeals ever lodged to the Tribunal involved a claim having been made to Home Office and hence sect. 92(4)(a) applied. Appeals can also be lodged under Section 86(3) of the NIAA 2002 which the Respondent has failed to realise and under sect. 47.”

37. As to the estoppel point, the appellant briefly suggested the doctrine might not apply. He also made a number of factual assertions in seeking to refute certain of the findings, indeed the bulk of them, in relation to the six complaints.

The oral hearing

38. The appellant requested an oral hearing of the appeal before the Upper Tribunal. I granted his request. The hearing took place, before me, on 18 March 2015. He attended and was represented by Ms Atcha although he also made some oral submissions himself. The respondent was represented by Mr Bisgrove. I am grateful to all of those persons for their assistance.

39. Ms Atcha accepted that the grant of permission had been on limited grounds and said she would not seek to raise any other matters not included within it. In explaining what she said the appellant had meant by the term “protective notices of appeal” she referred me to section 92(4) of the 2002 Act. She said that if a person has “regularised stay” in the UK and is then served with a notice of removal “under section 10 or other notices” then so long as that person has made an asylum or human rights claim there would be a right of appeal against the removal decision. Section 92(4) is not just about whether an appeal is in‑country or not. She said that the appellant had never lodged what she described as “freestanding appeals”. She referred to the appeal allowed by Judge Blake. 90% of Ebrahim and Co’s workload is related to human rights claims under Article 8 of the European Convention on Human Rights. When an appeal is put in it is then “totally up to the judge’s discretion” as to how they apply the law. Mr Ebrahim had explained, before the F‑tT, that when a person doesn’t have a full right of appeal section 92(4) “kicks in”. His evidence as to that had not been fully reflected in the F‑tT’s written reasons. He does have good knowledge of the law. The expert report had not addressed section 92(4). She said that, as I understand it, where a person has made an application on human rights grounds there will be a right of appeal under section 92(4) even though no immigration decision under section 82 has been made. She contended that, in this sense, the F‑tT had been misled by the respondent’s expert report. As to the complaint decisions, the F‑tT could not take those decisions into account without reopening the complaints and hearing evidence about them for itself. If it did not do that it was required to disregard them. Ms Atcha added that, as to rights of appeal, section 86(3) was also “relevant” and that this had been recognised by immigration tribunals.

40. Mr Bisgrove for the respondent said that the term “protective notices of appeal” as it had been used by the appellant before the F‑tT covered circumstances, as in the complaint determinations, where there had been no right of appeal. In four of the decided complaints such appeals had been lodged without any legal basis. It is a necessary precondition for a right of appeal that there has been an immigration decision. The law as to that is settled and uncontroversial. Appeals were lodged which were bound to fail and had been issued automatically. This went to the competence of the appellant and his understanding of what the law was.

41. I raised the point with Mr Bisgrove that there did appear to be copies of appeal decisions, relating to some of the appellant’s clients, where although there may not have been a right of appeal, this had not been detected and favourable decisions (from the perspective of the appellant’s clients) had been made. Mr Bisgrove said that, nevertheless, the appeals had been lodged on the basis of a misunderstanding as to the law. As to the question of reopening complaint decisions, he took me through the arguments which he had already canvassed in writing and which I have summarised above.

42. Mr Ebrahim, at the urging of Ms Atcha and in the absence of any objection from Mr Bisgrove, then addressed me himself. He told me, as to the lodging of appeals, that if a person makes an in‑time application, prior to the expiry of any earlier leave to enter or remain in the UK (permission to stay) and the Home Office refused it then that refusal will normally carry an in-country right of appeal. However, the cases in issue here were ones where persons had remained in the UK as overstayers (presumably pre existing permission to stay having expired). In such circumstances Ebrahim and Co, would apply to the Home Office for leave to remain and, if any such application was refused, section 92(4) would operate to provide a right of appeal so long as an earlier human rights claim (that is one lodged before the appeal was put in) had been made. Such appeals, he explained, had been entertained in the past. What he seemed to be saying, as I understand it, is that if an overstayer applies for leave to enter or remain on human rights grounds, and the application is refused, then there will be a right of appeal under section 92(4).

The post‑hearing written submissions

43. When considering this appeal, after the hearing, I came across the decision of the Upper Tribunal in KMI. One of the issues which the Upper Tribunal had considered was that of whether the F‑tT had the power to effectively reopen complaints and decisions about them and reach its own view as to such complaints on an appeal concerning an application for continued registration. As to that, the Upper Tribunal had said this:

“ 22. As regards point (a) in the previous paragraph, it is submitted by Mr Bisgrove in this appeal that the powers of the F‑tT ‘to determine the factual basis of a complaint’ are limited to the situation where the Respondent, on determining a complaint, decides to lay a disciplinary charge before the F‑tT. He submits that, where the Respondent decides to record the complaint and the decision on it for consideration when the applicant’s registration next comes up for renewal, pursuant to para. 9(1)(a) of Schedule 5 to the 1999 Act, the F‑tT has no jurisdiction to decide whether a Commissioner’s determination of the complaint was correct.

23. That is undoubtedly the case in the sense that the registered person cannot appeal against a determination of the complaint. The jurisdiction of the F‑tT does not arise until there is an appeal against an appealable decision, or the Respondent lays a disciplinary charge before the F‑tT. However, it must in my judgment be the case that if the findings in the determination of a complaint are relied upon by the Respondent in the course of making an appealable decision, the F‑tT can and (if the grounds of appeal challenge those findings and the Tribunal regards those matters as material to its decision of the appeal) must decide for itself whether those findings are correct. It cannot simply take the approach that it is bound to accept the conclusions of a Respondent in the course of determining the complaint. If that were the correct approach, it could result in a registered firm being left without an effective right of appeal in a case where the findings in a complaint determination form the substantial basis of a decision to refuse continued registration.”

44. It will be noted from the above that Mr Bisgrove had been counsel for the Commissioner in KMI. I directed further written submissions from the parties regarding the importance of KMI and also invited them, if wished, to comment upon the approach which should be taken by the Upper Tribunal where a single judge is invited to depart from an earlier decision of another single judge. This was potentially relevant because KMI had been decided by a single judge and the respondent, with respect to the question of reopening complaints, was inviting me to take a different approach.

45. Mr Bisgrove, in his further submission argued, in a nutshell, that whilst a single judge should normally follow an earlier decision made by another single judge, there was no requirement to do so. He invited me to depart from KMI.

46. The appellant argued that the attempt to persuade the Upper Tribunal not to follow KMI amounted to an invitation to depart from a clearly and thoroughly determined issue and that the invitation to do so amounted to “an abuse of due process of law”. He strongly criticised the respondent for failing to disclose the case. It was further argued that a judge of the Upper Tribunal should follow an earlier decision by another judge of the Upper Tribunal “unless the case can be distinguishable”. It was suggested, I think, that what was said in KMI regarding the F‑tT’s power to reopen decisions on complaints, was part of the ratio decidendi of the case and, if not, should be regarded, in any event, as being “seriously persuasive”. It was suggested, in short, that I should follow the decision in KMI.

47. As to the possibility of reconvening the oral hearing, the respondent’s submissions were silent about that. The appellant, however, suggested that it would be just to reconvene the hearing “especially in light of the Respondent’s evasiveness on the case of KMI”.

48. Thereafter, I found it necessary to trouble the appellant once again. That was because when considering the appeal I noticed that, although nothing else seemed to be missing, there was not a copy of the decision of Judge Blake which had been relied upon by the appellant before the F‑tT, in the file which the F‑tT had sent to the Upper Tribunal. Since the appellant was relying upon it I felt it was fair that I should have a full copy in front of me and that has now, helpfully, been provided by him.

Discussion

49. Having held an oral hearing and having received the various written submissions referred to above, I had to consider, in light of the appellant’s request, whether to reconvene the oral hearing to explore, further, the points raised by the decision in KMI. I took into account the content of rules 2 and 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008. I noted the appellant’s request for the hearing to be reconvened and the respondent’s silence about it. There had already been one hearing in which many of the issues raised by this appeal had been thoroughly explored. The possible significance of the decision in KMI had been addressed, in writing, by both parties in considerable detail. The request for the reconvened hearing was couched in very general terms. I did not think that, in these circumstances, reconvening the hearing was likely to take matters any further. I considered it fair and just to determine the appeal on the basis of the material already before me.

50. I shall now deal with how I should approach the decision in KMI noting, as I have, the written submissions of the parties. I should perhaps add that whilst the failure of the respondent to cite KMI was unfortunate given counsel’s involvement in that case, I do not detect anything sinister in that. In any event, in this decision I am concerned with the law rather than matters of professional conduct.

51. Mr Bisgrove contends that what he describes as the “strict rules” of stare decisis do not apply to tribunals. The appellant, in his submissions, says the principle of stare decisis does apply to tribunals and especially to what he describes as “higher Tribunals”.

52. It seems to me that the position is quite clearly set out in the decision of the Upper Tribunal in Dorset Healthcare NHS Trust v MH [2009] UKUT 4 (AAC), a decision of a three judge panel of the Administrative Appeals Chamber of the Upper Tribunal. In dealing with the particular matter in issue here, the Upper Tribunal said this:

“Insofar as the AAC is concerned, on questions of legal principle, a single judge shall follow a decision of a Three‑Judge Panel of the AAC or Tribunal of Commissioners unless there are compelling reasons why he should not, as, for instance, a decision of a superior court affecting the legal principles involved. A single judge in the interests of comity and to avoid confusion on questions of legal principle normally follows the decisions of other single judges. It is recognised however that a slavish adherence to this could lead to the perpetuation of error and he is not bound to do so.”

53. That is certainly a very clear and, given the fact that the case was dealt with by a three judge panel, very authoritative statement of the position. The appellant does not explain why I should not follow the approach set out therein and, indeed, it seems to me I am bound to follow it given the requirement for a single judge to follow the decision of a three judge panel on questions of legal principle. So, then, it is right to say, as Mr Bisgrove contends, that whilst a single judge of the Upper Tribunal will normally follow a decision of another single judge, such a judge need not.

54. It is now appropriate for me to consider the arguments of the parties as to whether or not the F‑tT does have jurisdiction to reopen decided complaints as my view on the merits of those arguments will inform as to whether this is a case where I should depart from the reasoning in KMI.

55. Firstly, by way of reminder, the F‑tT had not only said it was not the function of the F‑tT to reopen complaints (see paragraph 36 of its statement of reasons), it had also said that its ruling on the point, made at the hearing, had been accepted by both parties. Nevertheless, Mr Bisgrove has not sought to argue that the appellant’s apparent acquiescence to that view means he cannot now properly raise the issue before the Upper Tribunal.

56. Clearly, the F‑tT thought that both parties had agreed that it did not have power to reopen the complaint decisions. It would not, otherwise, have said what it did in the closing sentence of paragraph 36:

“This ruling was accepted by both the Appellant and the Respondent in this Appeal.”

57. One of the appellant’s complaints when applying for permission was to the effect that the F‑tT had actually ruled that the complaints could not be relied upon by the respondent. The appellant, in fact, criticised the F‑tT for, as he saw it, relying on the previous complaint decisions “contrary to what had been agreed upon”.

58. It seems to me that the inescapable conclusion is that the appellant, and Ms Atcha who represented him before the F-tT, had misunderstood what the F‑tT was saying as to the approach it was going to take with respect to the decided complaints. The F‑tT had, in turn, mistakenly thought that the appellant was consenting to the approach it was taking without realising that he had so misunderstood. In these circumstances it does not seem to me that it can be said the appellant had validly consented to the F‑tT relying upon the complaint decisions without them being reopened. In the circumstances, I do not consider that the appellant should be disentitled to raise the point before the Upper Tribunal.

59. I can certainly see some force in the argument that the F‑tT should be able to reopen findings which have been made on a complaint. It would seem to make sense for the F‑tT, in considering an appeal to it, to be able to consider all matters which might appear to have relevance, for itself. There might be unfairness if, for example, a complaint was determined and then subsequent evidence emerged which cast doubt upon the soundness of the findings reached upon the complaint.

60. There are, though, other arguments to consider. Mr Bisgrove’s key point, in this regard, is that when properly interpreted the relevant legislation simply does not permit the F‑tT to reopen complaints. It is necessary, therefore, to look closely at that argument. This will involve some recapping.

61. As noted earlier, section 83(5) of the Immigration and Asylum Act 1999 imposes a duty upon the Commissioner to exercise her functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or services are fit and competent to do so, act in the best interests of their clients, do not knowingly mislead a court or tribunal, do not seek to abuse any procedure in connection with immigration or asylum and do not advise any other person to do something which would amount to such abuse. The Commissioner is also required to establish a complaints scheme. That is laid down in paragraph 5(1) to Schedule 5 of the 1999 Act. According to Schedule 5(3) a complaint is a relevant complaint if it relates to matters of competence or fitness. Paragraph 9 to Schedule 5 sets out the Commissioners powers on determining a complaint. One of the powers which may be exercised by the Commissioner is this:

“If the person to whom the complaint relates is a registered person or a person employed by, or working under the supervision of, a registered person, record the complaint and the decision on it for consideration when that registered person next applies for his registration to be continued;”

62. That, indeed, is what had happened here. So, it is to be noted, that the Commissioner may record “the complaint and the decision” for consideration at the next registration stage. Pausing there, when granting permission, Upper Tribunal Judge Jacobs noted that it was both the complaint and the decision that may be considered and posed a question as to why the complaint should be considered as well as the decision if it were not envisaged that its merits might be part of the consideration.

63. Mr Bisgrove submits that the word “consideration” as used above cannot denote a requirement or a power to review or reopen a decision taken on a complaint. One of the arguments he advances for that contention is that, if it were otherwise, the initial decision on the complaint would serve no purpose at all. That is because the only sanction in respect of a decided complaint is one which is applied at the stage of an application for continuing registration. So, in effect, if a person who has had an adverse finding on a complaint made against him, places the findings on the complaint in issue when appealing against a decision taken at the continuing registration stage, the decision has to be effectively retaken at that later stage. If that were so then, runs the argument, there would have been no point at all in the investigation of and the determination of the complaint by the Commissioner at the earlier stage. Such a decision on the complaint would be rendered meaningless.

64. I do not agree that the investigation of and the determination of a complaint would necessarily be rendered entirely pointless (and Mr Bisgrove does seem to go that far) if a person were to have a right to challenge the complaint decision findings in the pursuance of an appeal against a registration or continued registration decision. It might be that the person would, in the face of thorough and clear findings on the complaint, accept the force of those findings and not seek to challenge them, by way of reopening them, before the F‑tT. It might be that the F‑tT would take into account the fact that, if it be the case, thorough findings had been made and thorough conclusions had been reached at a time more contemporaneous to the events which led to the complaint and it might, therefore, attach weight to the findings on that basis. In such situations the investigation and decision on the complaint would have served some purpose. Nevertheless, it does seem to me that, to quite a significant extent, the importance and significance of findings and conclusions on a complaint would be undermined if they could simply be challenged, once again, either before the Commissioner when registration or continued registration was being considered or on appeal to the F‑tT. This could indeed mean that, in, many cases, the initial decision would not have, of itself, any real effect or impact. That does afford some support for Mr Bisgrove’s argument with respect to the meaning of the term consideration.

65. Mr Bisgrove then draws attention to the difference in the statutory language used regarding the decision on a complaint and then regarding the subsequent use of that decision at the continuing registration stage. He argues that what he identifies as a difference in language, at these two stages, is significant.

66. In this context, paragraph 8 of Schedule 5 refers to the Commissioner’s function, when taking a decision on a complaint as being one of “determining a complaint”. The outcome of such a determination is described as a “decision”. When we come on to paragraph 9 of Schedule 5, however, which talks of what is to be done by the Commissioner once such a decision has been made, then it is said that the function is to “record the complaint and decision on it for consideration” at the next registration stage (see paragraph 9(1)(a)). As Mr Bisgrove points out, there is no talk, here, of the Commissioner’s function being to review or reopen the complaint. I accept it would have been easy and I think appropriate for Parliament to have said it was conferring such a right if that is what it was intending. Rather, it seems to me, the language used seems to envisage that the decision on the complaint is to be treated as final in the sense that it cannot subsequently be reopened by the Commissioner at the continuing registration stage and, by the same token, by the F‑tT in an appeal against a decision taken at the continuing registration stage. I do not think the ability of the Commissioner to “record the complaint” as well as the decision on it “for consideration” should be taken to imply that the merits of the complaint and the findings upon it may be revisited at these later stages. It seems to me that the word “consideration” amounts to something like “taken into account” so that it is legitimate for the Commissioner on the continued registration stage, and by implication the F‑tT on an appeal, to look at the fact of and detail of the complaint with a view, perhaps, to considering its seriousness. Further, the complaint and the detail of it puts the determination of the complaint into context so it is appropriate for the Commissioner and the F‑tT to look at the two together. That does not, though, imply any power to reopen the complaint.

67. Section 89 of the 1999 Act sets out the F‑tT’s powers on determining a disciplinary charge. As noted above, after determining a complaint the Commissioner has a number of alternatives when dealing with the complaint one of which is to lay before the F‑tT a disciplinary charge. One of the options given to the F‑tT, by section 89 of the 1999 Act, is to direct the Commissioner to record the charge and the F‑tT’s decision on the charge “for consideration in connection with the registered person’s next application for continued registration”. That appears at section 89(2)(a). Mr Bisgrove says that the Commissioner is not permitted to go behind the F‑tT’s decision and re‑determine the issue for herself when deciding an application for continued registration. I accept that. It would be most odd if, in those circumstances, the Commissioner could do so as that would effectively amount to the Commissioner overruling the F‑tT. Mr Bisgrove then suggests that there is significance in that the language used in section 89, in relation to the F‑tT’s powers, in this context, mirror that used in paragraph 9 of Schedule 5 concerning the Commissioner’s function in recording the complaint and the decision on it “for consideration”. He says that where the same language is used at more than one point in the same Act, the presumption is that it has the same meaning each time. This suggests, he says, that the process the Commissioner will carry out on an application for continued registration is the same for a recorded charge as it is for a recorded complaint. Thus, this supports the argument that the term “consideration” has a limited meaning and does not encompass the concept of a reopening or a redetermination.

68. I accept that argument. It does seem to me it would be odd and, indeed, jarring, if the word “consideration” were to have one meaning in the context of recorded charges and another in the context of recorded complaints and decisions made upon them.

69. If the F‑tT did have the power to reopen a complaint it would follow that it was open to it to reach a conclusion that the substance of the complaint was not substantiated for the purposes of determining an appeal against a decision made with respect to continued registration. However, the F‑tT does not appear to have been given any power, under the Act, to direct removal of any complaint or decision made upon it from the record or to direct a Commissioner to so remove it. If the intention of Parliament had been to allow the F‑tT to reopen complaints then it would seem to follow, as a matter of commonsense, that it would have to be given the power to remove such complaints, and the findings upon them, from the record. Otherwise the very odd position could arise where a complaint decision remained on record despite the F-tT effectively overruling it.

70. In light of all the above, then, it does seem to me that there are powerful arguments based upon the wording of the legislation itself for concluding that the F‑tT does not have the power to reopen complaints when dealing with an appeal concerning registration or continued registration.

71. I do not find the arguments put by Mr Bisgrove regarding what he describes as the “finality of litigation” and the comparison with the doctrine of issue estoppel, to be so persuasive. There is, it seems to me, a distinction to be drawn between a decision of a court or tribunal and a decision of a more administrative nature such as that taken by the Commissioner in light of or in response to a complaint made to her. In Mills v Cooper [1967] 2 Q.B. 459, which Mr Bisgrove seeks to rely upon, it was said, in effect, that the doctrine meant that a party to civil proceedings was not allowed to make, against the other party to those proceedings, an assertion if the same assertion had been an essential element in any previous cause of action or defence in previous civil proceedings between the same parties and had been found by a court of competent jurisdiction to be incorrect. The comparison does not hold here because a Commissioner’s decision on a complaint is not a decision of a court or tribunal. I accept, therefore, the appellant’s contention that the doctrine does not apply in this sort of context. However, Mr Bisgrove makes a further point in what he describes as a public policy context to the effect that there would be evidential difficulties if the F‑tT were to be able to reopen a complaint. I do accept that there is some force in that point. Any challenge to the findings of a complaint decision would probably arise before the F‑tT some considerable time after the actual determination of the complaint. It may be that an original complainant, who had perhaps provided considerable information for the purposes of the investigation of the complaint, might no longer be available and could not, therefore, provide evidence for the F‑tT. It is possible such a person might, for whatever reasons, have left the UK. In the face of a challenge to the credibility of a subsequently unavailable complainant it might be that the F‑tT would be unable to properly consider matters and make informed findings. In any event recollections of witnesses may have become somewhat less reliable due to the passage of time. Whilst this is perhaps not the most persuasive point made by the respondent, I do think the argument offers some support for the proposition that the F‑tT does not have the right to reopen the complaint.

72. I consider that the arguments tendered on behalf of the respondent, when put together, and notwithstanding the appellant’s opposition as summarised above, have considerable force. However, as already mentioned, there is the decision in KMI, which runs contrary to the position the respondent urges me to take. I have set out, above, the approach which the Upper Tribunal is to take when a single judge is invited to depart from a decision of another single judge.

73. I have decided not to follow the decision in KMI insofar as it relates to the power of the F‑tT to reopen complaints and decisions upon those complaints. I did not reach that decision at all lightly. However, I find it important, in this context, that that particular issue was not canvassed in the same detail as it was before me. That is not surprising because the terms of the grant of permission, as set out above, placed the question of the F‑tT’s powers with respect to complaints squarely at the centre of the matters I have had to decide. That was not so in KMI because, although the question was referred to in the grant of permission, the Upper Tribunal had accepted, in that case, that the F‑tT had effectively agreed with the Commissioner’s findings regarding the complaint. Thus, insofar as it is relevant, the view taken in KMI that there was power to reopen complaints did not form part of the ratio decidendi of the decision but, also, because of the view that it had taken it did not have to explore the argument in detail. That is, no doubt, why the part of the decision in KMI which deals with the question of the power to reopen complaints is, as Mr Bisgrove puts it, “briefly reasoned”. In light of this and in light of my accepting that persuasive arguments have been advanced I have concluded it is not appropriate for me to follow the decision and the reasoning in KMI. I have reached a different view. I have concluded that the F‑tT does not, in fact, have power to reopen complaints and decisions on them made by the Commissioner when dealing with an appeal concerning a decision made upon an application for registration or continued registration.

74. It follows, from the above, that I conclude the F‑tT did not err in law in saying what it did say at paragraph 36 of its written reasons. It did not err in law in declining to reopen the findings on the various complaints. Further, in view of its conclusion, set out at paragraph 70, to the effect that the findings in respect of the complaints were themselves of sufficient gravity to justify the respondent’s decision on continued registration, this would mean that any further errors which the F‑tT may have made would not be material ones. Accordingly, that does mean, therefore, that the appellant’s appeal to the Upper Tribunal has failed.

75. Nevertheless, given the amount of argument there has been about this issue, it is appropriate for me to go on to consider what has been said about the “protective notices of appeal”. The F‑tT said that this was a reference to a practice of lodging appeals where there had been a refusal of an application for leave to remain in the UK and where there was no substantive, or any, ground for an appeal (see paragraph 43 of its written reasons). It found that appeals had been lodged on “many occasions” without due consideration of the merits and without advice being given to the appellant’s clients. It accepted that the practice had demonstrated “a failure of competence” as a Level 3 adviser. Such was stated at paragraphs 50 and 51 of the written reasons.

76. By way of recapping, what were described as “protective notices of appeal” had been lodged in four of the six complaints which had been relied upon by the Commissioner in making her original decision regarding continued registration which was before the F‑tT. In three of those cases it had been concluded by judges in the First‑tier Tribunal (Immigration and Asylum Chamber) that there was no valid right of appeal. In another (Complaint 6275), the complaint in which this particular aspect was looked at most thoroughly, an expert report had been obtained by the respondent suggesting that there was no justification for the automatic lodging of such appeals and suggesting that, in effect, Ebrahim and Co., had misunderstood aspects of the law relating to the right of appeal.

77. It is clear that the appellant’s general position as to “protective notices of appeal” and as explained in his response to that complaint, was that the lodging of such would protect the interests of his clients (hence the term he uses) in that it might lead to an appeal being listed and heard, it might speed matters up and it might, although this was not clearly explained, suggest that somehow the matter might be “remitted” to the Home Office. The expert’s conclusions were criticised, principally it seems, because of a failure to appreciate, in the context of rights of appeal, the importance of section 92(4) of the Nationality, Immigration and Asylum Act 2002. The appellant’s position before the Upper Tribunal was to the effect that section 92(4), of itself, conferred a right of appeal in circumstances where no immigration decision had been made but where a person wishing to appeal was an overstayer but was seeking permission to remain in the UK on human rights grounds, and had had such an application refused. It was said, in effect, that the F‑tT had erred in accepting the Commissioner’s position and in failing to appreciate the import of section 92(4). A number of decisions of First‑tier Tribunal judges in the Immigration and Asylum Chamber, which had been made in relation to Ebrahim and Co’s clients, were submitted to the Upper Tribunal by way of illustration of the claimed success of the tactic.

78. It seems to me that the position regarding rights of appeal is really quite straightforward. I have set out the relevant provisions, as they then were, above. There have been subsequent changes brought about by the Immigration Act 2014 but none of that was in force at the material times. It is clear, as a matter of law, that an appeal lies only in circumstances where an “immigration decision” as defined in the above legislation has been made. The appellant did not seem to accept that or to believe that that was so but it inevitably follows from the wording of the various sections of the 2002 Act set out above. So, for example, and contrary to the arguments advanced by the appellant, an overstayer who simply applies to the Home Office for a grant of leave to enter or remain in the UK (permission to stay) and is refused, will not have a right of appeal because the refusal decision will not amount to an immigration decision as defined in section 82(2). Specifically, it will not be either of the types of decision referred to at section 82(2)(d) or (e) because they presuppose valid existing leave to enter or remain. There will, though, be a right of appeal if a decision to actually remove an applicant in such circumstances is made (see section 82(2)(g) and (h) and (i)) of the 2002 Act. Section 92 is not concerned with the question of who does or does not have a right of appeal. Rather, it is concerned with whether a person in respect of whom an immigration decision has been made is able to pursue an appeal against that immigration decision in‑country or whether such a person has to leave the UK before pursuing any such appeal. It lists a number of types of immigration decision in respect of which there is an in‑country right of appeal. Those do not, though, include removal decisions. The significance of section 92(4)(a) is not that it confers an additional right of appeal but rather that it provides that an appeal against an immigration decision will be an in‑country one where the person seeking to appeal has made an earlier asylum claim or a human rights claim whilst in the United Kingdom. So, for example, if a removal decision has been made in respect of a person and that person has, before the lodging of any appeal, claimed asylum or claimed the right to remain in the UK on human rights grounds, then the appeal against the subsequent removal decision will be one which is exercisable whilst the person is in the UK. The appellant suggests, in effect, that decided case law supports the proposition that section 92(4) does, of itself, confer a right of appeal where there would not otherwise be one. In particular, the appellant has sought to rely upon Nirula [2012] EWCA Civ 1436. Nirula, was concerned with the application of section 92(4)(a) but in resolving the question for determination before it, the Court of Appeal concluded that the asylum or human rights claim envisaged by section 92(4)(a) had to be made prior to the lodging of the relevant notice of appeal in order for an in country right of appeal to be conferred. It could not be made, for the first time, when the notice of appeal was lodged. It also said that it was open to the First‑tier Tribunal to take this jurisdictional point for itself even in circumstances where it had not been taken by the respondent (the Secretary of State for the Home Department). Thus, it is certainly not authority for the proposition that section 92(4) affords a right of appeal where there would, otherwise, be none.

79. It is clear, therefore, that the appellant is wrong to contend that, as a matter of law, appeals can be lodged under section 92(4)(a) and is wrong to contend that section 92(4) offers a justification for lodging “protective notices of appeal” where there is, in fact, no right of appeal conferred by section 82(2). I do accept, as I commented upon at the hearing, that the appellant has been able to produce determinations made by judges in the First‑tier Tribunal (Immigration and Asylum Chamber) where the point appears not to have been noticed or taken by the judge or the Secretary of State such that an appeal has been heard without there being a statutory basis for it to have been lodged in the first place. I also accept that the appellant has been able to produce some decisions where judges have decided (I am sure quite correctly) that an appeal which has been lodged is one which can be heard in the UK because, as a matter of fact, there had been a previous asylum and/or human rights claim which had been made prior to the lodging of the relevant appeal. However, that is simply what one might expect. There will, inevitably, be circumstances in which an appeal can be heard in‑country because such a prior application has been made and circumstances where, it cannot, because no such prior application has been made. The point is, though, that that does not justify the uninformed lodging of an appeal but, rather, suggests that enquiries of the client ought to be made as to whether there has been a pre‑existing asylum or human rights claim before deciding whether to lodge an appeal against an immigration decision with a view to its being heard in‑country, or not.

80. Pausing there, I note, for completeness that at certain points in his written submissions Mr Bisgrove has referred to section 94(2) rather than to section 92(4). Although the appellant, in certain of his written submissions, has referred to section 94(2) and at other points to section 92(4) I am satisfied, after hearing what was said on his behalf at the oral hearing, that he does primarily rely upon section 92(4) as the justification for the lodging of the “protective notices of appeal”. That is also supported by his attempt albeit not a persuasive one, to rely upon Nirula. The Court of Appeal in Nirula, were concerned with the import of section 92(4) and 94(2). But in any event, it is obvious that section 94(2) does not conceivably confer any additional right of appeal at all. It simply provides for an added restriction upon in‑country appeals by providing, in effect, that an in‑country appeal cannot be brought in reliance on section 92(4)(a) if the relevant asylum or human rights claim has been certified by the Secretary of State as being clearly unfounded.

81. The appellant, as noted above, had also suggested appeals could be submitted under section 86(3) of the 2002 Act. I have set out that provision above. It is clear that it is concerned with the circumstances in which the Tribunal must allow an appeal to it. It is not concerned with the right of appeal. There was a reference to appeals being lodged under “section 47” but the relevant Act was not specified.

82. In light of my view as to the law, as set out above, I do not find that the F‑tT erred in misunderstanding the legal position. It was open to it both to conclude appeals had been lodged without there being a right of appeal and to accept the expert report. It was open to it to have concluded, in effect, that in the context of the four complaints where a “protective notice of appeal” had been lodged, there was no right of appeal.

83. I have, therefore, resolved both issues in respect of which permission was granted against the appellant. His appeal to the Upper Tribunal fails.

(Signed on the original)

M R Hemingway

Judge of the Upper Tribunal

Dated 31 July 2015