Case Nos: GIS/5271/2014

GIS/5651/2014

GIS/101/2015

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE KNOWLES QC

 

 

 

DECISION

 

 

These appeals are dismissed.

 

 

 

REASONS FOR DECISION

 

 

The Issue in these Appeals

 

 

1.        These three appeals concern two companies providing immigration advice and/or services. What linked those two companies was that they were both owned by a Mr Sanwar Ali. Mr Ali has been involved in giving immigration advice for many years and has owned a number of companies which provided such advice.

 

2.        There are two key issues in these appeals. The first concerns the tribunal’s jurisdiction since the Appellant contended that the tribunal could not take into account breaches of the Immigration Services Commissioner’s Rules or Code of Standards when deciding whether an adviser was fit or otherwise competent to provide immigration services and/or advice. I decide that such breaches can be taken into account by a tribunal on an appeal. 

 

3.        The second issue is whether a tribunal can take account of matters other than those taken into account by the Office of the Immigration Services Commissioner. I decide that it can since the tribunal’s jurisdiction is not confined to matters as they stood at the time of the relevant decision by the Commissioner. Additionally the tribunal is required to determine for itself whether the decision appealed against was right. I disagree with the decision in AE v The Immigration Services Commissioner [2015] UKUT 450 (AAC) which determined that the tribunal does not have the power to reopen complaints determined by the Commissioner when dealing with an appeal concerning registration or continued registration.

 

4.        For ease of reference, I have referred to the Immigration Services Commissioner and/or his office as “OISC”. The immigration Services Commissioner’s Rules and Code of Standards are respectively referred to as “the Rules” and “the Code”.

 

 

The Relevant Law

 

 

5.        I have set out the law relevant to these appeals in what I hope is a logical and understandable way.

 

6.        The Immigration and Asylum Act 1999 (as amended) [“the Act”] provides a scheme for the regulation of immigration advisers. Prior to the Act, advisers were unregulated which resulted in vulnerable people being left open to exploitation. The Immigration Services Commissioner [“OISC”] has the task of regulating the immigration advice industry.

 

7.        Section 83 establishes the Commissioner whose general duty is to promote good practice by those who provide immigration advice or immigration services [section 83(3)]. He also has regulatory functions provided for in Part 1 of Schedule 5 of the Act. He must exercise his functions so as to secure, so far as it is reasonably practicable, that those who provide immigration advice and services are, inter alia, “fit and competent to do so” [section 83(5)(a)] and “act in the best interests of their clients” [section 83(5)(b)].

 

8.        Section 84(1) provides that no person may provide immigration advice and services unless he is a qualified person. One way of being a qualified person is to be a person registered by OISC [section 84(2)(a)]. OISC must prepare and maintain a register of those registered by him to provide immigration advice and services [section 85(1)].

 

9.        Schedule 6 of the Act provides that, if OISC considers that an applicant for registration “is competent and otherwise fit to provide immigration advice and immigration services”, OISC must register the applicant [paragraph 2(1)].  Paragraph 4A(e) of Schedule 6 - which came into effect from 17 October 2014 - provides that OISC must cancel a person’s registration if he considers that the person “is no longer competent or is otherwise unfit to provide immigration advice or immigration services”. No further definition is provided by the Act as to what is meant by “competent or otherwise unfit”.

 

10.     Schedule 6 further provides for a registered person to submit an application for his registration to be continued. OISC can require further evidence in support of continued registration and may either continue registration or vary it to have limited effect. A failure, without reasonable excuse, to make either an application for continued registration as required or to provide evidence in support of such an application may result in OISC cancelling registration altogether.

 

11.     Schedule 5 of the Act provides that OISC may make rules regulating any aspect of the professional practice, conduct or discipline of registered persons [paragraph 1(1)]. OISC may take into account any breach of the rules by a registered person or a person acting on his behalf when determining whether a registered person is competent or otherwise fit to provide immigration advice or immigration services [paragraph 1(3)]. These rules are known as the Immigration Service Commissioner’s Rules and set out, amongst other matters, how accounts and records are to be kept and how client money is to be held.

 

12.     Paragraph 3 of Schedule 5 provides for OISC to issue a Code of Standards which applies to any person providing immigration advice or immigration services. Paragraph 3(4) states that “it is the duty of any person to whom the Code applies to comply with its provisions in providing immigration advice or immigration services”.

 

13.     A scheme for OISC to investigate relevant complaints is established in paragraph 5 of Schedule 5. A complaint is a “relevant complaint” if it relates, inter alia, to the competence or fitness to provide immigration advice or immigration services of a person who, at the time to which the complaint relates, was a registered person [paragraph 5(3)(za)] or someone acting on behalf of a registered person [paragraph 5(3)(aa)]. An alleged breach of the Code of Standards or the Rules are also relevant complaints [paragraph 5(3)(c) and 5(3)(d)]. Those who are the subjects of a complaint investigation must “take such steps as are reasonably required to assist the Commissioner in his investigation” [paragraph 6(2)(a)].

 

14.     On determining a complaint under the complaints scheme, OISC may record the complaint for consideration when the registered person applies for continued registration [Schedule 5, paragraph 9(1)(a) and paragraph 9(1A)(a)]. Otherwise OISC may lay before the First-tier Tribunal a disciplinary charge against a registered person. The power to record a complaint in paragraph 9(1)(a) is subject to paragraph 4A(e) of Schedule 6, namely the duty of OISC to cancel the registration of a person who is no longer competent or is otherwise unfit.

 

15.     Section 87(1) of the Act provides that “any person aggrieved by a relevant decision of the Commissioner may appeal to the Tribunal against the decision”. In KMI v The Immigration Services Commissioner [2013] UKUT 520 (AAC), Upper Tribunal Judge Turnbull held that an appeal to the First-tier Tribunal was “to be a full appeal and not simply some sort of review of the exercise by the Respondent of her decision-making power. The FTT is required to determine for itself whether the decision appealed against was right – i.e. in this case whether the Appellant “was no longer competent or otherwise unfit to provide immigration advice or immigration services” (para.3(5) of Schedule 6 to the 1999 Act).The extent to which a FTT will need to redetermine issues of fact determined by the Respondent in the course of reaching her decision will of course depend on the grounds of appeal” [see paragraph 8 of KMI].

 

 

Factual Background

 

 

16.     I have endeavoured to set out the complex background to these appeals as succinctly as I can. I refer to ImmEmp Solutions Limited as “ImmEmp” and to Visa Joy Limited as “Visa Joy”.

 

(i) ImmEmp Solutions Limited

 

17.     Mr Ali owned a number of companies, including SIA Workpermit.com (a Latvian registered company) and Workpermit.com (a UK registered company). Workpermit.com is a dormant company which Mr Ali retained only to preserve entitlement to the name. OISC originally authorised Mr Ali to provide immigration advice and/or services as a sole trader using the name, Sanwar Ali trading as Workpermit.com.

 

18.     A cheque for the April 2011 OISC registration fee was drawn on an account in the name of “Work Permits Online Limited” and, on inspecting Mr Ali’s records, OISC found invoices indicating that this company was also trading as Workpermit.com. Mr Ali owned “Work Permits Online Limited” but it went into liquidation in Spring 2012 because it owed money in tax. Both the failure of “Work Permits Online Limited” and the reasons for that failure were not made known to OISC by Mr Ali at that time.

 

19.     From 21 January 2011 another company owned by Mr Ali was incorporated. This was Visa Joy Limited.

 

20.     In 2011 OISC conducted an audit of Mr Ali’s business as a result of which he was given an “identified issues report” detailing the actions he should take urgently to remedy the failings which OISC had identified in the running of ImmEmp. These included (a) a lack of proper client care letters which confirmed instructions, advice given and action agreed; (b) the retention of proper attendance notes on the case file; and (c) the initial payment of client monies into a client bank account. Mr Ali was warned that non-compliance might affect his continuing registration by OISC.

 

21.     In May 2012 Mr Ali decided to incorporate another company of which he was the sole owner. This was ImmEmp and Mr Ali applied to OISC for his authorisation to change to ImmEmp, paying the fee for that change of registration from the business account of Visa Joy. As part of the transfer of authorisation, Mr Ali agreed that ImmEmp accepted responsibility for Workpermit.com’s existing obligations and liabilities especially with respect to complaint findings and audit recommendations. The change of registration was approved in September 2012.

 

22.     In 2012 OISC conducted an audit at ImmEmp which resulted in another “identified issues report”. Customer care letters were again found wanting; attendance notes were insufficiently detailed to understand the instructions given by the client, the advice agreed and the action taken; email correspondence was missing from some files; and copies of invoices had not been retained on some files. Amongst other matters, Mr Ali was required by OISC to provide his latest available verified and certified/audited accounts and to submit evidence of his office and client accounts to reflect the change of legal entity and name.

 

23.     On 5 September 2013 ImmEmp trading as Workpermit.com applied for continuing registration. The fee due was once more drawn on the account of Visa Joy. On 31 March 2014 OISC refused the application because it considered that ImmEmp was no longer competent or otherwise fit to provide immigration advice or services. It concluded that neither Mr Ali nor Ms Sajid, one of ImmEmp’s advisers, were fit and competent to provide such advice and/or services.

 

24.     The refusal of ImmEmp’s application at this time took place against a background of some 50 complaints about Mr Ali and his registered company over the previous 10 years. OISC was particularly concerned about three of these complaints which it brought to the attention of the First-tier Tribunal.

 

25.     The first complaint related to events in summer 2012 and can be referred to as the Saudi Arabian earnings case. Mr Ali himself was responsible for the advice given and the actions taken in this matter. The complainant held a visa granted under the points system which was due to expire unused. He wanted to renew it but was worried that he did not have enough points. His fear was that he would not be able to obtain an “uplift” for his earnings in Saudi Arabia and he asked for ImmEmp’s advice on this issue. He was assured that the “uplift” would apply and, on that basis, an appointment was booked for him with the Home Office in Sheffield. The complainant flew from Saudi Arabia to Sheffield, pausing only to pay ImmEmp its fee of £1,700. He also paid a fee of £1,800 to the United Kingdom Border Agency but was refused renewal of the visa. ImmEmp’s advice had been wrong.

 

26.     The second complaint can be referred to as the cricketer case. The complainant had become involved in a dispute with an umpire whilst playing cricket and was convicted and fined for common assault. He was worried about the effect this conviction might have on his application for indefinite leave to remain in the UK. He spoke to Ms Sajid, one of ImmEmp’s advisers, who assured him of success. In fact such a conviction would lead to the mandatory refusal of any application for indefinite leave to remain though a request could be made for the exercise of the Home Secretary’s discretion in the cricketer’s favour. This request was not apparently made by ImmEmp.  Mr Ali was named as the cricketer’s consultant. The cricketer paid a fee of £1,350 and was sent to attend an interview at the United Kingdom Border Agency with assistance from a “courier”. It was ImmEmp practice for a courier to attend such interviews. The Border Agency worker spotted the mandatory refusal point and advised the cricketer to withdraw his application. He did and later submitted his own application for the exercise of the Home Secretary’s discretion.  The cricketer had paid a large fee to Immemp for inadequate and misleading advice and said that ImmEmp’s “courier” had been wholly unable to assist at the interview. These events occurred in November 2012.

 

27.     The third complaint in July 2012 concerned an application for an entrepreneur visa. ImmEmp’s advisor was Mr Udhin who made a simple error. There was a three month time limit for this application but Mr Udhin thought that it could be made only after a period of three months had expired. Once his mistake was apparent, Mr Udhin then suggested that the complainant set up a new business with a new three month period to run for making an application. Eventually the complainant gave up and obtained a visa via another firm. ImmEmp’s fee was £2,400.

 

28.     ImmEmp appealed the decision by OISC to the First-tier Tribunal of the General Regulatory Chamber [“the tribunal”] and a tribunal hearing took place on 27 and 28 August 2014 at which Mr Ali gave oral evidence. By a decision dated 6 October 2014 the tribunal confirmed the decision of OISC and dismissed the appeal.

 

(ii) Visa Joy Limited

 

29.     I have already referred to the creation of Visa Joy in January 2011 [see paragraph 9 above]. The application to register Visa Joy with OISC was made on 15 July 2011. Mr Ali owned Visa Joy and explained to OISC that he wanted to register Visa Joy as he believed a company with a different name would attract better quality enquiries. In September 2011 Mr Ali said that the intention was to close Workpermit.com within 12 months so that only Visa Joy would operate to give immigration advice and/or services. He stated that, though Visa Joy would share the same office and some of the same staff as Workpermit.com, it would be a separate organisation. The application to register Visa Joy was approved by OISC on 28 November 2011. Mr Ali and two other staff would provide advice.

 

30.     By Autumn 2013 Mr Ali was the sole registered advisor at Visa Joy. In July 2013 he had submitted an application to register Ms Sajid as an adviser at Visa Joy but, as she was under investigation by OISC for her work at ImmEmp, OISC decided not to process the application at that stage. Another application was made by Mr Ali to register Ms Sajid as an adviser at Visa Joy in November 2013.

 

31.     On 25 September 2013 Visa Joy was invited by OISC to submit an application for continued registration no later than 30 October 2013. No such application was received and a “final reminder” letter was sent by OISC on 15 November 2013 warning that if the application was not received by 27 November 2013, OISC could cancel Visa Joy’s registration.

 

32.     Visa Joy submitted an application for continued registration on 28 November 2013 but did not include the necessary fee. Visa Joy was telephoned that day by OISC and asked to pay the fee as the application for registration would not be processed without payment. Another call was made on 6 December 2013 when Visa Joy promised OISC the fee would be paid within a day or two. As no fee was subsequently received, OISC returned the application on 13 December 2013 asking for resubmission together with the appropriate fee by 23 December 2013. OISC finally received the application with the relevant fee on 30 December 2013.

 

33.     OISC, as part of the application process, reviewed all relevant information about VISA Joy. Given Mr Ali’s ownership of ImmEmp and the fact that the advisers working at ImmEmp were either working at or intending to work at Visa Joy, it was inevitable that OISC would take into account the reasons for its refusal of ImmEmp’s  continued registration on 31 March 2014 when deciding whether or not to continue Visa Joy’s registration. This is apparent from scrutiny of OISC’s decision letter dated 18 August 2014 which makes plain the connections between the two companies and OISC’s view that neither Mr Ali nor Ms Sajid was fit or competent to provide immigration advice.

 

34.     Visa Joy appealed OISC’s refusal of its continued registration and by a decision dated 21 October 2014, the tribunal refused to suspend the effect of OISC’s decision pending the resolution of the appeal. OISC applied to strike out Visa Joy’s appeal and by a decision dated 24 November 2014 the tribunal granted that application

 

 

The Appeals before the Upper Tribunal

 

 

35.     ImmEmp and Visa Joy applied for permission to appeal which was refused by the First-tier Tribunal. All three appeals have been consolidated given the close connections between these two companies and the reasons why OISC refused to continue their registration.

 

36.     The first appeal [GIS/5651] relates to the decision of the First-tier Tribunal made on 6 October 2014 upholding OISC’s decision to refuse the application for the continued registration of ImmEmp Solutions Ltd. If  permission to appeal were granted, the Appellant also sought an order suspending OISC’s decision pending the outcome of the appeal to the Upper Tribunal. That application was not renewed at the permission hearing before me on 30 April 2015.  On 6 January 2015 Upper Tribunal Judge Hemingway refused the application for permission to appeal and on 16 January 2015 the Appellant asked for reconsideration at an oral hearing.

 

37.     The second application [GIS/5271/2014] was an appeal against the decision of the First-tier Tribunal on 21 October 2014 refusing to stay OISC’s decision not to continue the registration of Visa Joy. On 24 November 2014 Upper Tribunal Judge Hemingway refused the application for permission to appeal and on 2 December 2014 the Appellant asked for reconsideration at an oral hearing.

 

38.     The third application was an appeal against the decision of the First-tier Tribunal on 24 November 2014 striking out the Applicant’s appeal against OISC’s decision not to continue the registration of Visa Joy. This application was received by the Upper Tribunal on 22 December 2014. The submission filed in support of this application requested that this application was linked to the appeal concerning ImmEmp as Mr Ali owned both companies and the alleged facts and circumstances giving rise to the appeals before the First-tier Tribunal were the same.

 

39.     I granted permission to appeal in all three matters after an oral hearing on 30 April 2015 when Mr Dutton of counsel appeared on behalf of the Appellant and Mr Richardson of counsel appeared on behalf of the Respondent Commissioner. I am grateful to both of them for their submissions and assistance.

 

40.     I have been provided with a large bundle of material relevant to both appeals and both parties have filed written submissions. Following the handing down of the decision in AE v The Commissioner for Immigration Services [2015] UKUT 450 (AAC), the parties made further submissions which were not completed until 28 September 2015. I have not held another hearing of these appeals nor have I been asked to do so by either party and I am satisfied that I can determine these appeals fairly without doing so. I regret that other commitments have delayed the writing of this decision.

 

 

The Tribunal’s Decisions

(i) ImmEmp Solutions

 

 

41.     I have summarised the tribunal’s main conclusions as set out below. It held an oral hearing at which Mr Ali gave evidence. Both Immemp and the Commissioner were represented by the same counsel who appeared before me.

 

42.     The tribunal found that Mr Ali had owned a company called Work Permits Online Limited which went into liquidation some two and a half years earlier because it owed money in tax. Mr Ali had failed to declare this to OISC so it did not feature in the investigation into ImmEmp. The audits carried out in 2011 and 2012 disclosed serious failings in the way ImmEmp conducted advice and business. The tribunal rejected Mr Ali’s suggestion that the 50 complaints made against him over 10 years was a comparatively small number. It further rejected his evidence that OISC staff had given private oral assurances that ImmEmp was doing well and that they had to find something against him. The findings of both audits made it clear that urgent action was required to remedy what were serious deficiencies and the tribunal found that no authorised person diligent to co-operate with the regulator would shrug them off.

 

43.     Mr Ali operated a number of different trading entities concerned with the provision of immigration services but the tribunal found that he was unable to give a clear and coherent explanation as to why this was and what the distinction was between them. It stated that there was no place for such a lack of transparency in a regulated industry. These failings were all the more grave given the liquidation of Mr Ali’s previous immigration advice company because it failed to pay tax.

 

44.     The tribunal held that Mr Ali routinely operated in breach of the OSC client account rule despite warnings. When OISC started its investigation, the tribunal found that Mr Ali created false documents which included one with respect to the Saudi Arabian earnings complaint and another with respect to the cricketer’s complaint. He sought to inhibit OISC staff during their investigation and blamed others consistently for any problems. The tribunal found his evidence to be “repeatedly evasive, failing to answer direct questions, and attempting to divert discussion into irrelevancy” [Appeal Bundle, page 186, paragraph 48].

 

45.     The tribunal rejected ImmEmp’s submission that the purpose of the regulatory regime was to be construed narrowly so as to ensure the provision of accurate advice rather than to include compliance with matters such as record keeping, customer care letters or accounts. Mr Dutton submitted that the true purpose of OISC regulation was to ensure clients received accurate advice and, if an advisor fell short of certain standards or misbehaved in any way, statute gave OISC a different remedy by bringing a charge against the offender before the First-tier Tribunal. The tribunal said it did not accept that contention and said that accuracy of advice was not the sole criterion for judging competence.

 

46.     In conclusion the tribunal said that its findings demonstrated serious failures which were shortcomings not only in behaviour towards clients but also deceit and failure to cooperate with OISC which indicated to it a systemic refusal by ImmEmp to be regulated. It concluded that ImmEmp was unfit to provide immigration advice or immigration services and dismissed its appeal.

 

(ii) Visa Joy Limited: First Decision

 

47.     The first decision on 21 October 2014 to suspend a decision by OISC to refuse continued registration followed a hearing at which Mr Ali represented himself and OISC was represented by Mr Richardson of counsel.

 

48.     The tribunal rejected Mr Ali’s submission that Visa Joy was entirely separate from ImmEmp and stated that the two companies were inextricably linked by reason of ownership, employees, and administration. The tribunal took into account the findings made in respect of ImmEmp which it described as very serious. It commented that the findings were made on the basis of facts which were not really contested.

 

49.     The tribunal placed weight on Mr Ali’s disclosure at the ImmEmp hearing that another company he had created to give immigration advice had been put into liquidation as it owed tax to HMRC. Since the cancellation of ImmEmp’s registration, OISC had established that Mr Ali had himself been the subject of proceedings by HMRC for failing to make PAYE/NI payments. The tribunal accepted that there would be some financial loss to Mr Ali and inconvenience to his clients but concluded that OISC’s decision should stand pending the hearing of the application by OISC to strike out Visa Joy’s appeal.

 

(iii) Visa Joy: Second Decision

 

50.     The second decision was that of 24 November 2014 striking out Visa Joy’s appeal against the refusal of continued registration.  The tribunal summarised its conclusions in the ImmEmp decision, namely that Mr Ali (a) had been the subject of complaints for inaccurate advice; (b) had routinely operated in breach of OISC’s client account rule; (c) had failed despite warnings to keep proper file records or send appropriate customer care letters. It repeated its findings that Mr Ali had fabricated a letter falsely dated 10 August 2012; had compiled what appeared to be current attendance notes long after the event; and had deliberately made access to his files difficult when OISC asked to inspect them.

 

51.     The tribunal dismissed the argument that Visa Joy was completely separate from ImmEmp. It held that the Visa Joy grounds of appeal were no more than a blanket denial of all allegations which did not sit at all well with Mr Ali’s own evidence in the ImmEmp proceedings.

 

52.     The tribunal found that the failings in the ImmEmp case were bad enough but the OISC case against Visa Joy was even stronger. First, Ms Sajid had been employed by Mr Ali as an adviser when she was not registered. It is a criminal offence to give advice if unregistered. This issue would require detailed consideration if the Visa Joy proceedings were to continue. Second, pending the outcome of the ImmEmp appeal, Mr Ali had accepted but had then failed to observe the conditions imposed by OISC with respect to the operation of a client account. Finally, Mr Ali had prevaricated when asked to confirm if he had been the subject of other legal proceedings and it had eventually come to light that he had been the subject of bankruptcy proceedings brought by HMRC in respect of PAYE deductions.

 

53.     The tribunal concluded that the case advanced by OISC was unanswerable as the range and seriousness of the allegations taken together with the strength and weight of the evidence supporting them meant that Visa Joy’s appeal had no reasonable prospect of success.

 

 

First Ground of Appeal

(i)The Argument

 

 

54.     The Appellant contended that the jurisdiction of the First-tier Tribunal was limited by the Immigration and Asylum Act 1999. The First-tier Tribunal was only entitled to take into account matters directly relevant to the provision of either immigration advice and/or immigration services as defined in section 82 of the Act when coming to a decision on an appeal against a relevant decision.

 

55.     The Appellant asserted that, in this appeal, the issue as to whether the Appellant is “no longer competent or is otherwise unfit” [paragraph 4A(e) of Schedule 6 of the Act] to provide immigration advice or immigration services must be determined by reference to competence or fitness to provide immigration advice or services as defined in the Act and not by reference to other matters. In other words the question was not whether the Appellant was generally someone incompetent or unfit but more specifically whether incompetence or unfitness had impacted or had the potential to impact on the quality of immigration advice or services.

 

56.     Additionally the Appellant argued that breaches of OISC’s Code of Practice or Rules were not relevant with respect to issues of fitness or competence. If they were relevant, there would be no need for the separate provisions relating to such breaches in paragraph 5(3) of Schedule 5. He submitted that breaches of the Code and Rules were not intended to automatically and inevitably amount to a lack of fitness and competence.

 

57.     In stark contrast, the Respondent submitted that the First-tier Tribunal was entitled to look beyond the quality of immigration advice and services in deciding whether an Appellant was competent or otherwise fit to provide immigration advice and services.

 

(ii) Discussion

 

58.     The test for registration is set out in paragraph 2(1) of Schedule 6 of the Act, namely that OISC must register a person if he considers that an applicant for registration is “competent or otherwise fit to provide immigration advice and immigration services”. This provision is mirrored in paragraph 4A(e) of Schedule 6 which requires OISC to cancel registration where a person is “no longer competent or is otherwise unfit to provide immigration advice and services”. The Act does not provide a definition of what constitutes competence or fitness because these are plain words with a readily understandable meaning.

 

59.     The test in each of these provisions is disjunctive. The first consideration is a person’s competence. The second is whether he is otherwise fit, the use of the word “otherwise” indicating the need for an assessment of factors other than competence. I agree with the Respondent that matters such as accuracy of advice, record keeping and client care letters may be relevant in assessing competence whereas questions such as honesty, previous convictions, compliance with regulations and the maintenance of proper financial records may be relevant in assessing the broader question of fitness.

 

60.     I find that matters beyond the accuracy of immigration advice and services are clearly capable of being taken into account when considering either competence or fitness. Paragraph 1(3) of Schedule 5 provides that OISC may take into account any breach of the Rules “in determining whether a registered person is competent or otherwise unfit to provide immigration advice or immigration services”. Breaches of either the Rules or the Code form relevant complaints [see paragraphs 5(3)(c) or 5(3)(d) of Schedule 5] which could be taken into account by OISC at the next application for registration/continuing registration [paragraph 9(1)(a) and 9(1A) of Schedule 5].  Both the Rules and the Code encompass matters far wider than the provision of accurate immigration advice. Finally advisers are also required to abide by the provisions of the Code when providing immigration advice and/or services [paragraph 3(4) of Schedule 5.

 

61.     My analysis is consistent with the legislative intention behind the Act. This regulatory regime was introduced to ensure that those seeking immigration advice and services – a group recognised to be vulnerable for reasons which are manifestly obvious – were protected from unscrupulous advisers who provided poor advice and/or overcharged [see paragraph 7:20 of the White Paper preceding the Act, “Fairer, Faster, Firmer: A Modern Approach to Immigration and Asylum” published on 27 July 1998]. The narrow interpretation contended for by the Appellant would afford, in my judgment, little effective protection to the clients of immigration advisers. The following illustrates why.

 

62.     Neither the Code nor the Rules contain specific provisions which address an adviser’s criminal record. Unless a person has been convicted of an offence under section 25 or 26(1)(d) or (g) of the Immigration Act 1971 [offences relating to assistance with unlawful immigration, the altering or possession of false documents in connection with immigration matters or the obstruction of an immigration officer], there is no absolute prohibition against a person with criminal convictions either becoming or remaining an immigration adviser. However advisers are under a duty to inform OISC of significant changes in their personal or business circumstances within 10 days of those changes occurring [Item 5 of the Code]. So, for example, a registered adviser who is convicted of fraud does not inform OISC of his/her conviction in accordance with paragraph 5. On Mr Dutton’s analysis, that breach of the Code has no relevance to a tribunal’s assessment of whether a person is competent or fit to provide immigration advice and/or services. If his interpretation of the law were correct, OISC’s regulation of immigration services would fail to protect clients at risk of financial exploitation let alone bad advice.  

 

63.     In this case, the tribunal in the ImmEmp decision did not find that ImmEmp was not competent to give accurate advice. It stated clearly and correctly that accuracy of advice was not the sole criterion for judging competence. It found ImmEmp was not competent as, for example, it had routinely operated in breach of OISC’s client account rules and had failed to either keep file records setting out advice given or sent proper customer care letters.

 

64.     The tribunal’s findings against ImmEmp make it clear that it was otherwise unfit. Thus, for example, Mr Ali had falsely fabricated a letter dated 10 August 2012; he had compiled what appeared to be current attendance notes long after the event; he had obstructed OISC’s access to the files; and he had been unable to give a coherent explanation for the lack of transparency arising from the use of multiple legal entities for his immigration advice and services businesses. All of these findings were properly open to the tribunal to consider when determining ImmEmp’s competence and fitness.

 

65.     Likewise, with respect to both the Visa Joy decisions, the tribunal was properly entitled to have regard to the ImmEmp findings. In the second Visa Joy decision, it also took into account those matters set out in paragraph 51 above when deciding whether or not to strike out Visa Joy’s appeal. These matters related to fitness rather than to competence and were matters which, on the above analysis, the tribunal was entitled to take into account when reaching its decision.

 

66.     I reject this ground of appeal.

 

 

Second Ground of Appeal

(i) The Argument

 

 

67.     The Appellant submitted that the tribunal was not entitled to consider anything other than the matters taken into account by OISC when reaching a decision on continued registration. He stated that the tribunal was confined to considering OISC’s decision alone, by reference to the wording of section 87(2) which provides that an appeal to the tribunal is against “a relevant decision”. The tribunal should not have taken into account matters or evidence which post-dated OISC’s decision.

 

68.     Following the decision in AE v The Commissioner for Immigration Services [2015] UKUT 450 (AAC), the Appellant also sought to argue that the effect of that decision was that the tribunal could not revisit the findings made by OISC in the complaints under scrutiny during an appeal. He argued that, as the Respondent had made no findings against the Appellant in respect of client accounts, it was improper for the tribunal to have done so in the ImmEmp decision and also wrong for the tribunal to have relied on the ImmEmp findings in the Visa Joy decisions.

 

69.     By contrast, the Respondent submitted that an appeal to the tribunal was a full appeal which could consider evidence not before OISC. The extent to which the tribunal would need to consider the material underlying OISC’s decision would depend upon the individual case and the nature of the challenge to OISC’s decision [see paragraph 8 of KMI].

 

70.     The Respondent argued that the decision in AE was concerned with a narrow issue of statutory construction about the tribunal’s jurisdiction to re-open complaints already determined by OISC. This was not the issue in this appeal which concerned the ability of the tribunal to consider evidence which came to light subsequent to OISC’s decision.

 

(ii) Discussion

 

71.     I find that the jurisdiction of the First-tier Tribunal is not confined to matters as they stood at the time of OISC’s decision. Were that the case, there would be little rationale for the application of Rule 15(2)(a)(ii) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2008 in immigration advice/services appeals before the tribunal. Rule 15(2)(a)(ii) expressly states that the tribunal may consider evidence which was not before the original decision maker. It would be curious if the tribunal had to ignore evidence from the Appellant relevant to a matter determined by OISC merely because that evidence was not known to OISC.

 

72.     In this case crucial evidence had come to light for example, that Mr Ali had previously had a company placed into liquidation because he had failed to pay national insurance and PAYE contributions to HMRC. This evidence had never formed the substance of a complaint or been investigated by OISC as Mr Ali had failed to inform OISC about this matter. Additionally in his oral evidence Mr Ali had admitted creating a letter and attendance notes long after the event. Both these matters were relevant to the question of whether Mr Ali was fit to provide immigration service and advice in the guise of either ImmEmp or Visa Joy. I find that the tribunal was right to take account of such evidence which came to light following OISC’s decision.

 

73.     I turn to the issue of whether the tribunal was right to revisit findings made by OISC in the determination of complaints against ImmEmp.

 

74.     In the ImmEmp case, the Respondent says that OISC had in fact made findings about the operation of client accounts in each of the three complaints relied on. In the Saudi Arabian earnings case, OISC had made factual findings about ImmEmp’s failure to properly account for client money. In the cricketer case, OISC found that the accounting practices of ImmEmp were unsatisfactory and warranted further investigation [page 25]. In the entrepreneur case, OISC once more recorded dissatisfaction with the accounting procedures used and noted that client money should have been held in a client account rather than in a business account. Whilst two of these three complaints did not reach a concluded view about whether ImmEmp’s accounting practices amounted to breaches of either the Code or the Rules, the decision letter refusing ImmEmp’s continued registration dated 31 March 2014 set out the result of OISC’s further investigation into these matters. It concluded that Rules 16,18 and 19 [relating to accounts and financial records] had been broken and Code 64 [documentation about transfers to and from client accounts and account balances in client accounts] had also been broken [see pages 10-12 of the appeal bundle].

 

75.     Thus, even on the Appellant’s own case, the Respondent submits that the tribunal was entitled to have regard to the complaints which revealed failings in the operation of client accounts. The tribunal’s conclusion that ImmEmp had routinely operated in breach of the OISC client account rule was a conclusion which, the Respondent says, was consistent with the matters recorded in OISC’s decision letter dated 31 March 2014.

 

76.     Having given this matter some anxious thought, I am not persuaded that AE has the interpretation which the Appellant gives it. The Appellant cites it to narrow the tribunal’s jurisdiction to that of mere review and the Respondent says that AE is irrelevant as OISC had in fact found breaches of the client account rule which were then echoed by the tribunal.

 

77.     In AE Upper Tribunal Judge Hemingway held that the First-tier Tribunal did not have jurisdiction to reopen complaints which had been previously decided by OISC. It is clear however that he saw force in the argument that the tribunal should be able to re-open findings which had been made on a complaint and that it would be sensible for the tribunal, when considering an appeal, to be able to consider all matters which might be relevant. He noted that there might be unfairness if subsequent evidence emerged which cast doubt upon the soundness of OISC’s finding upon a complaint [see paragraph 59 in AE]. He was however persuaded by the Commissioner that this was not the correct approach for the tribunal to take.

 

78.     In AE the Commissioner argued that if a person who has had an adverse finding on a complaint made against him and then places the findings on the complaint in issue when appealing against a decision taken at the continuing registration stage, the decision on the complaint had to be effectively retaken by OISC at that later point. If this was right, there would be no point at all in the investigation of and determination of the complaint by OISC at the earlier stage [see paragraph 63 in AE]. Judge Hemingway concluded in paragraph 64 of AE that:

“…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…”

 

79.     Judge Hemingway accepted the Commissioner’s submission that the language of paragraph 9(1)(a) of Schedule 5 of the Act envisaged that the decision on a complaint was to be treated as final in the sense that it could not subsequently be reopened either by the Commissioner at the continuing registration stage or by the tribunal in an appeal against a decision taken at the continuing registration stage. He held that the word “consideration” in paragraph 9(1)(a) permitted the Commissioner and the tribunal - on either an application to OISC for continuing registration or on appeal to the tribunal against the refusal of continuing registration - to look at the fact and the detail of a complaint with a view to considering perhaps its seriousness but that did not imply either had any power to reopen the complaint at that stage [paragraph 66].

 

80.     Judge Hemingway concluded that the tribunal did not appear to have been given any power under the Act to direct the removal of any complaint or decision made upon it from the record or to direct the Commissioner so to remove it. He thus found that the tribunal did not have the power to re-open complaints when dealing with an appeal concerning registration or continued registration [paragraphs 69-70 of AE].

 

81.     It is unfortunate, in my view, that Judge Hemingway does not appear to have been directed to sections 87 and 88 of the Act when reaching his decision.  

 

82.     Section 87(2) provides that any person aggrieved by a relevant decision of OISC may appeal to the tribunal against that decision. The meaning of the phrase “relevant decision” is set out in section 87(3) and includes decisions by OISC to refuse applications for registration and continuing registration and the cancellation by OISC of registration under paragraph 4A(e) of Schedule 6.

 

83.     Section 88 of the Act lists the tribunal’s powers when it upholds an appeal under section 87. If it considers it appropriate, the tribunal may direct OISC pursuant to section 88(2)(d) “to quash a decision recorded under paragraph 9(1)(a) of Schedule 5 and the record of that decision”.

 

84.     Paragraph 9(1)(a) states that:

“On determining a complaint under the complaints scheme, the Commissioner may

(a) if the person to whom the complaint relates was at the time to which the complaint relates

(i) a registered person, or

(ii) a person acting on behalf of a registered person

record the complaint and the decision on it to be considered in connection with the next relevant application.”

OISC’s decision to record a complaint and let it lie on file as it were until the next application by an adviser for example, for continuing registration is subject to the “duty of [the] Commissioner to cancel the registration of a person who is no longer competent or is otherwise unfit” [paragraph 9(1B) of Schedule 5]. Thus, if a complaint relates to an adviser’s competence or fitness, OISC has a duty to cancel the adviser’s registration if he decides during the course of investigating a complaint that the adviser is neither competent nor fit. Thus, by this route, the determination of a complaint becomes the sole reason for cancellation of an adviser’s registration.

 

85.     Sections 87 and 88, when read together with paragraph 9 of Schedule 5, give the tribunal jurisdiction to hear an appeal against OISC’s cancellation of registration based on the outcome of a complaint. In those circumstances the tribunal would need to examine not merely the fact of a complaint but its substance when determining an appeal. Otherwise an appeal against cancellation of registration would be limited to a mere review of OISC’s decision along the lines of the decision in AE. That cannot be correct given the powers of the tribunal on appeal. Additionally the wording of section 88 does not limit the powers given to a tribunal to quash a decision on a complaint just to appeals against the cancellation of registration. All of the “relevant” decisions listed in section 87(3) are included. Where those decisions include reliance by OISC on a previously determined complaint, I find that the tribunal is entitled to consider the substance of a complaint if this is relevant to the decision under appeal.

 

86.     My reading of the above provisions is on all fours with Judge Turnbull’s analysis of the extent of a tribunal’s powers in these cases set out in paragraph 8 of KMI [quoted in paragraph 15 above]. It is consistent with the tribunal’s inquisitorial function and has, moreover, practical merit in immigration services cases where it will often not be clear to an adviser applying for registration or continuing registration what significance, if any, OISC may attach to a complaint which has been determined and recorded in accordance with paragraph 9(1)(a) of Schedule 5. The absence of a mechanism for advisers to challenge the determination of complaints by OISC save when those complaints form part of a relevant decision underscores my analysis that the tribunal has the jurisdiction to do so where this is relevant on appeal.

 

87.     It is clear that I disagree with Judge Hemingway’s decision in AE for the reasons I have set out.

 

88.     For these reasons, I reject the Appellant’s argument that the tribunal’s jurisdiction was limited to mere review of OISC’s decision and that it was bound by the findings made in any of the complaints about ImmEmp before the tribunal. I note that this was not an argument advanced by Mr Dutton at the ImmEmp hearing where the tribunal recorded him as submitting that this was a full appeal by way of rehearing [Appeal Bundle, page 182].

 

89.     In the alternative, I agree with the Respondent’s submission set out in paragraphs 74-75 above that the tribunal was entitled to have regard to OISC’s findings about the operation of client accounts in either past complaints or in the 31 March decision letter.

 

 

Third Ground of Appeal

(i) The Argument

 

 

90.     The Appellant submits that in the ImmEmp decision the tribunal erred in its interpretation of OISC’s Rules with respect to client money. He submits that the opening words of Rule 18 - “where it is necessary” - qualify the requirement for an immigration adviser to have a client account in the three sets of circumstances to which the Rule refers. The word “necessary” implies that a client account is required only where the objective of such an account cannot be satisfactorily achieved by other means. Thus, far from being an essential requirement, a client account is something of a last resort.

 

91.     The Appellant also submitted that, on the tribunal’s interpretation of Rule 18 and in particular the words “any other purpose”, there was no scope at all for an adviser to transfer monies to an office account and be paid for work done.

 

92.     The Respondent submits that the tribunal’s interpretation of the client account rules set out in paragraphs 34-36 of the ImmEmp decision is the only permissible interpretation.

 

(ii) Discussion

 

93.     The OISC Rules include the following:-

“15. A registered adviser must keep accounts, including a distinct written record of the transactions undertaken for each client.

16. A registered adviser must keep clear written records for all advice given, all work done, all transactions made on behalf of each of their clients and all fees paid by each client. There must always be a direct correlation between work done and monies charged. Such records must be available for inspection by the Commissioner.

17. Wherever possible, the payment of fees to government departments, Tribunals or other third parties should be made by the client direct to them.

18. Where it is necessary for a registered adviser to hold client money even in respect of future payments to be made on behalf of the client or in respect of fees paid for work not yet done or for any other purpose, that money (a) must be held in a client account; and (b) it must clearly be shown that these funds remain the client’s.

19. Registered advisers must keep a client bank account separate from their own business bank accounts. With respect to the client account (a) transfers into and out of the client account must have supporting documentation and (b) clients must be able to receive a financial statement showing their account balance if they so request.”

 

94.     The tribunal disagreed with the Appellant’s submission as set out in paragraph 88 above. It stated in paragraph 34 that:

“Client account rules are the cornerstone of many schemes of Regulation. Their content may differ but their importance cannot be so diminished especially since such an interpretation would open the rule to attack on the ground that it is too vague and uncertain”.

 

95.     The tribunal held that Rule 17 with its opening words “wherever possible” gave a steer away from holding client money at all. Rule 18 dealt with those cases where it was necessary to hold client money and was not intended as a steer away from using a client account for that money. Rule 18 required any money paid by the client in respect of future payments to be made on his/her behalf or in respect of fees paid for work not yet done or for any other purpose to be paid into a properly maintained client bank account. The tribunal noted that this came as no surprise to Mr Ali as this interpretation of Rule 18 coincided precisely with what he told OISC he intended to do when registration was transferred to ImmEmp. This interpretation also accorded with the warnings he was given by OISC staff in 2011 and 2012.

 

96.     I find that the tribunal’s reasoning with respect to Rule 18 is unimpeachable. The tribunal found that ImmEmp had failed to produce a client account ledger or any client reconciliation and concluded that it had routinely operated in beach of the client account rule. I further reject the submission that an adviser could never transfer money to an office account from a client account (and thus be paid for work done) because of the wording of Rule 18. Rule 19 clearly envisages transfers out of the client’s account to an adviser’s business account as long as there is supporting documentation. Rule 18 is designed, in my judgment, to control the holding of client money pending future payments to third parties or future work to be done or for any other purpose before payment is made to the adviser for work actually done by him/her hence the requirement that the client account show that the money remains the client’s.

 

97.     I reject this ground of appeal.

 

Fourth Ground of Appeal

 

 

98.     The Appellant has conceded that the fourth ground of appeal stands or falls with the first ground. The Respondent agrees. Given my rejection of the first ground of appeal, I reject the fourth ground for the same reasons.

 

 

Conclusion

 

 

99.     It follows that, having rejected each of the grounds of appeal, I dismiss this appeal against the ImmEmp decision and against both Visa Joy decisions.

 

 

 

 

 

Gwynneth Knowles QC

Judge of the Upper Tribunal

9 December 2015.

 

[signed on the original as dated]