Visa Joy Ltd & Anor v Office of the Immigration Services Commissioner [2017] EWCA Civ 1473

[2017] EWCA Civ 1473Case No C3/2016/0850
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS
CHAMBER)
Upper Tribunal Judge Knowles QC
GIS/101/2015, [2015] UKUT 679 (AAC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/10/2017
Before
LORD JUSTICE MCFARLANELAD Y JUSTICE SHARP
Between
Visa Joy Limited & AnrOffice of the Immigration Services Commissioner
Helen Alexander (instructed on Direct Access basis) for AppellantAlistair Richardson (instructed by the Legal Department of the Office of the Immigration Services Commissioner) for RespondentHearing Hearing date: 13 th July 2017
Judgment ApprovedLord Justice McFarlane:
[1]The issue at the centre of this appeal is of some general importance in the context of statutory appeals under the Immigration and Asylum Act 1999. The question raised is: When conducting an appeal from an administrative decision- maker, to what extent, if any, is a tribunal entitled to take account of matters that were not relied upon by the original decision- maker? There is currently conflicting authority of the Upper Tribunal in answer to this question; in one decision, AE v The Immigration Services Commissioner [2015] UKUT 450, it was held that the tribunal does not have the power to re-open complaints determined by the original decision- maker when dealing with an appeal concerning registration. The contrary conclusion was reached in the earlier case of KMI v The Immigration Services Commissioner [2013] UKUT 520 (AAC) and in the decision under appeal in the present case where it was held that the appeal tribunal may take account of matters other than those taken into account by the Commissioner. Background[2]Mr Sanwar Ali has been involved in providing immigration advice for many years. He has done so through several registered companies. One such company, which was incorporated in January 2011, is Visa Joy Limited [“Visa Joy”].[3]The Immigration and Asylum Act 1999 [“the Act”] provides a scheme for the regulation of immigration advisers. The O ffice of the Immigration Services Commissioner [“OISC”], the Respondent to this appeal, has the task of regulating the immigration advice industry within the terms of the Act.[4]On 28 November 2011 Visa Joy was approved for registration by the OISC. On 25 September 2013, the OISC invited Visa Joy to apply for continued registration. Visa Joy submitted its application for continued registration on 30 December 2013.[5]In early 2014, as part of the application process, the OISC reviewed all relevant information concerning Visa Joy which included the fact that one of the sister companies operated by Mr Ali, ImmEmp Solutions Limited [“ImmEmp”], had, on 31 March 2014, been refused continued registration because the OISC considered that ImmEmp was no longer competent or otherwise fit to provide immigration advice or services. As part of that determination the OISC concluded that neither Mr Ali nor another named adviser were fit and competent to provide immigration advice or services.[6]The OISC decision letter dated 18 August 2014, which communicated the OISC’s refusal to continue Visa Joy’s registration, makes it clear that acco unt had been taken of the OISC’s earlier determination with regard to ImmEmp, Mr Ali and his staff.[7]In August 2014 the First Tier Tribunal [“FTT”] heard an appeal by ImmEmp against the OISC’s decision to refuse continued registration. The appeal was dismis sed by the FTT in a decision notice dated 6 October 2014. The FTT had heard evidence from Mr Ali and others and, in general, it upheld the OISC’s adverse findings as to their competence to provide immigration advice and services.[8]By October 2014, Visa Joy had appealed the OISC’s refusal of its continued registration. The OISC applied to strike out Visa Joy’s appeal and by a decision dated 24 November 2014 the FTT granted that application. In doing so the FTT predominantly relied upon the earlier findings made by the OISC and upheld by the FTT with respect to ImmEmp.[9]Visa Joy appealed to the Upper Tribunal (Administrative Appeals Chamber) against the FTT decision. That appeal, together with an appeal relating to ImmEmp, was conducted by Upper Tribunal Judge Knowles QC without an oral hearing on the basis of written submissions, permission to appeal having previously been granted at an oral hearing before the same judge. By hearing the appeals of ImmEmp and Visa Joy together, UTJ Knowles considered the factual matters relied upon against each company together in one process. The present appeal to this court is not concerned with the detail of the various factual determinations. It is therefore sufficient for the purposes of this judgment to set out UTJ Knowles’ summary of the position as it was prior to her own determination: “50. [relating to the FTT decision] 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 of 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 [an immigration adviser] 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. ” (a) had been the subject of complaints of 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.[10]In reaching this conclusion the FTT had taken into account two different categories of material (in addition to the formal findings of complaint upon which the refusal to renew registration had been based): a) matters that had been known to the OISC at the time of the registration decision, but had not been the subject of a specific decision on a complaint or expressly taken into account in determining registration; and b) matters that had become known after the registration decision had been taken by the OISC and/or had been established during oral evidence at the tribunal hearing. The jurisdiction of the FTT to take account of either of these categories of material was at the centre of the case before UTJ Knowles and is the point of appeal before this court. The Legal Context[11]The Immigration and Asylum Act 1999 provides a scheme for the regulation of immigration advisers. The Immigration Services Commissioner is established by s 83 of the Act. In addition to having a general duty to promote good practice, the Commissioner has the regulatory functions set out in Schedule 5, Part 1 of the Act. The Commissioner must exercise his/her functions so as to secure, so far as it is reasonably practicable, that those who provide immigration advice and services are ‘fit and competent to do so’ [s 83(5)(a)] and ‘act in the best interests of their clients’ [s 83(5)(b)].[12]The system of registration by the OISC is established by Schedule 6 of the Act. If the OISC considers that an applicant for registration is ‘competent and otherwise fit to provide immigration advice and immigration services’, he must register the applicant [Schedule 6, paragraph 2(1)]. Equally, the 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’ [Schedule 6, paragraph 4A(e)]. The OISC may require a registered person to submit an application for his registration to be continued, which is then determined by the Commissioner.[13]An appeal process is provided so that ‘any person aggrieved by a relevant decision of the Commissioner may appeal to the FTT against the decision’ [s 87(2)]. The term ‘relevant decision’ is defined for these purposes by s 87(3) to mean a decision:
‘(a) to refuse an application for registration made under paragraph 1 of Schedule 6; (b) … (c) under paragraph 2(2) of that Schedule to register with limited effect; (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; (ea) to vary a registration under paragraph 3A of that Schedule.’
[14]The powers of the FTT if an appeal under s 87 succeeds are set out in s 88:
‘(1) This section applies if the First-tier Tribunal allows an appeal under section 87. (2) If the First-tier Tribunal considers it appropriate, it may direct the Commissioner— (a) to register the applicant or to co ntinue the applicant’s registration; (b) to make or vary the applicant’s registration so as to have limited effect in any of the ways mentioned in paragraph 2(2) of Schedule 6; (c) to restore an exemption granted under section 84(4)(a); or (d) to quash a decision recorded under paragraph 9(1)(a) of Schedule 5 and the record of that decision.’
[15]Under ss 87 and 88 the FTT does not have a free-standing jurisdiction to review or entertain an appeal simply against a finding by the OISC upon an individual complaint against a registered immigration practitioner. Where, however, the OISC considers such a complaint to be sufficiently serious, the Commissioner may lay a disciplinary charge before the FTT against the registered person. In those circumstances the FTT will determine the disciplinary charge in accordance with its jurisdiction under Schedule 5, paragraph 9(1)(e) and s 89 of the Act.[16]The primary question raised in the present appeal relates to the extent of the appeal process under s 87 and the extent to which, if at all, the Tribunal may conduct its own determination on the material placed before it, irrespective of whether that material was considered to be relevant, or considered at all, by the OISC.[17]Finally, it is necessary to set out the provisions of Schedule 5, paragraph 9(1) [as amended] which relate to the determination of complaints by the Commissioner:
‘9(1) O n determining a complaint under the complaints scheme, the Commissioner may— (a) if the person to whom the complaint relates is a registered person or is acting on behalf 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 is acting on behalf 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) refer the complaint and his decision on it to a 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 First-tier Tribunal a disciplinary charge against a relevant person.’
Conflicting Upper Tribunal Authority[18]The central point at issue in this appeal had previously been determined in two decisions of the Upper Tribunal: KMI v The Immigration Services Commissioner [2013] UKUT 520 (AAC) [‘KMI’] and AE v The Immigration Services Commissioner [2015] UKUT 450 (AAC) [‘AE’]. These two decisions are in direct conflict with each other on the point. In her decision in the present case UTJ Knowles preferred the reasoning in KMI and rejected that in AE. It is, therefore, plainly necessary for this court to determine the correct approach to be adopted, both for the purposes of these proceedings and more generally.[19]In KMI v The Immigration Services Commissioner [‘KMI’], Upper Tribunal Judge Turnbull heard an appeal from the FTT which had upheld a decision by the OISC not to continue the appellant’s registration under the 1999 Act. UTJ Turnbull considered two separate questions: a) Whether or not the FTT should form its own opinion on whether the applicant is competent and fit to provide immigration advice and services; and b) The extent to which, if at all, the FTT may re-open and re-determine factual findings made by the OISC on any individual complaints upon which the OISC overall assessment of competence and fitness was based.[20]On the first issue

Judge Turnbull was plain (at paragraph 8):

‘In my judgment [s 87(2)] means that the appeal is to be a full appeal, and not simply some sort of review of the exercise by the [OISC] 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 fit to provide immigration advice and immigration services”. … The Tribunal would … in my judgment be bound to determine whether in its opinion the appellant was not competent or otherwise unfit, and not simply whether the [OISC’s] decision was one reasonably open to her.’
[21]On the second issue UTJ Turnbull held that the FTT, when hearing a s 87 appeal against a ‘relevant decision’, had jurisdiction to re-open decisions that the OISC had previously made upon individual complaints (at paragraph 23):
‘[It] is undoubtedly the case … that the registered person cannot appeal against the determination of the complaint. The jurisdiction of the FTT does not arise until there is an appeal against an appealable decision, or the [OISC] lays a disciplinary charge before the FTT. However, it must in my judgment be the case that if the findings in the determination of a complaint are relied upon by the [OISC] in the course of making an appealable decision, the FTT 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 the [OISC] in the course of determining the complaint. If that were the correct approach, it could result in a registered person being left without an effective right of appeal in a case where the findings in a complaint determination from the substantial basis of a decision to refuse continued registration.’
[22]In AE v The Immigration Services Commissioner [2015] UKUT 450 (AAC) Upper Tribunal Judge Hemingway considered an appeal by an immigration adviser from a decision of the FTT to confirm the OISC’s decision refusing to continue his registration. In that case the FTT’s written reasons described the approach that it had taken to factual determinations that had been made by the OISC:
“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 Submission 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.”
[23]The approach taken by the FTT in AE was to take the OISC’s determination of a complaint as an established ‘fact’ and not to go behind that determination or seek to re-open the particular complaint.[24]The UT decision in AE records the argument made on behalf of the OISC as be ing consistent with the approach taken by the FTT. In passing it is of note that that position is entirely contrary to the submissions now made on behalf of the OISC to this court. The OISC submitted in AE that the right of appeal from a determination of the OISC is limited by s 87 of the Act to a ‘relevant decision’; a refusal to register, or continue to register, an applicant is a ‘relevant decision’, whereas the recording of and the determination of a complaint are not.[25]In AE, in contrast to the present case, it was the appellant who sought to re-open the earlier complaint determinations made by the OISC. It was submitted that to bar the FTT from re-considering such matters would be contrary to immigration law and procedure.[26]In preparing his determination UTJ Hemingway took account of the earlier UT decision in KMI, having invited specific further submissions upon it. Having properly cautioned himself as to the ordinary desire for consistency as between decisions of different single judges sitting in the UT, UTJ Hemingway came to a contrary conclusion to that of UTJ Turnbull in AE on the question of the FTT’s jurisdiction to re-open complaints that had been previously determined by the Commissioner. Although UTJ Hemingway could see some force in the arguments in favour of the FTT having jurisdiction to re-open findings that had been made on a complaint, he was persuaded to the contrary view by a number of points that may be summarised as follows: i) The OISC considers and determines complaints within a statutory scheme established under Schedule 5 of the Act; ii) Under the statutory scheme, inter alia Schedule 5, paragraph 9(1)(a), the OISC ‘may record the complaint and the decision on it for consideration when the registered person next applies for his registration to be continued’; iii) The importance and significance of findings and conclusions on a complaint would be undermined if they could simply be challenged on appeal to the FTT, to the extent that the original complaint decision, of itself, would not have any real effect; iv) The language of Schedule 5 (particularly paragraph 9(1)(a)) which provides that the ‘record’ and ‘the decision’ on a complaint may be relied upon when considering future registration, does not imply that the underlying evidence or analysis behind the ‘record’ or ‘decision’ may be revisited either by the OISC when considering future registration or by the FTT on appeal; v) Where a complaint has been escalated into a disciplinary charge but that charge is subsequently found not to be proved by the FTT, it is not open to the OISC to continue to rely upon its original finding to continue to uphold the complaint; vi) Where a disciplinary chaise is upheld by the FTT it may, by s89(2)(a), direct the Commissioner to 'record the charge and the FTTs decision for consideration in connection with the registered person's next application for continued registration' (emphasis added). The language used in s 89(2)(a) mirrors that in Schedule 5, Paragraph 9(1)(a) requiring the OISC to 'record the complaint and the decision on it for consideration when that registered person next applies for his registration to be continued' (emphasis added). The word 'consideration' should have the same meaning on both contexts. As the OISC does not have jurisdiction to go behind or to re-open an FTT decision on a charge, in like manner the decision on a complaint by the OISC does not foil to be reconsidered during the process of it being given 'consideration'; vii) If the FTT 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 FTT 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.’ [paragraph 69].[27]Despite affording due deference to the contrary decision of UTJ Turnbull in KMI, UTJ Hemingway therefore came to the contrary conclusion namely (paragraph 73):
‘that the FTT 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.’
The judgment of UTJ Knowles QC in the present case[28]In the section of her judgment dealing with the matters that remain in issue in this appeal, UTJ Knowles identified the two separate questions that required consideration: a) Whether the tribunal was entitled to consider anything other than the matters taken into account by the OISC when reaching the decision on continued registration; and b) Whether the tribunal could revisit the findings previously made by the OISC in the complaints that are under scrutiny in an appeal.[29]In relation to the first issue, UTJ Knowles firmly concluded that the FTT is not confined to a consideration of matters as they stood at the time of the OISC decision (paragraphs71 and 72): ’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 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.’[30]In relation to the second issue, having reviewed the decision of UTJ Hemingway in AE, UTJ Knowles supported her contrary conclusion on the following basis:
‘81. It is unfortunate, in my view, that Judge Hemingway does not appear to have been directed to ss 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 s 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.” (i) a registered person, or (ii) a person acting on behalf of a registered person 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 no r 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 OICS’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 s 88 does not limit the powers given to a tribunal to quash a decision on a complaint just to appeal against the cancellation of registration. All of the ‘relevant’ decisions listed in s 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. 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.’
The Appeal[31]Although Visa Joy sought to appeal on a number of grounds, permission to appeal was only granted on the one ground relating to the role of the FTT when hearing an appeal under the registration scheme established by the Act. The Appellant’s case, as pleaded in a skeleton argument by counsel, Mr Jake Dutton, and as advanced orally before this court by Mrs Alexander, is that ‘whilst the FTT must make its own decision it can only make that decision by considering the matters that [the OISC] relied on in reaching its decision.’[32]The factual point at the heart of the appeal arises from the fact that the FTT took account of its finding that Mr Ali and/or Visa Joy had breached the OISC’s rules in respect of client accounts when the OISC itself, when making determination on the three specific complaints that it had relied upon, made no finding as to client accounts.[33]The Appellant, who relies upon the authority of Strouthos v London Underground Limited [2004] IRLR 636, which relates to disciplinary proceedings, to assert that ‘the charge’ against an individual must be precisely framed and the evidence should be confined to the particulars given in the charge, argues that the same tight parameters must apply to determining an application for continued registration under the scheme operated by the OISC. He relies upon other cases in the context of unfair dismissal proceedings which are to like effect.[34]The Appellant accepts that the FTT may consider evidence which has arisen after the OISC’s decision but, again, asserts that that evidence must be limited to the original ‘charges’ against the applicant which formed the basis of the decision to discontinue his registration.[35]In response to the appeal, Mr Richardson on behalf of the Commissioner submitted that UTJ Knowles’ interpretation of the law was correct. He pointed to s 88(2)(d) of the Act which gives the FTT power to direct the Commissioner to quash the record of a decision on a complaint which, he submitted, was wholly contrary to the case of the Appellant.[36]Mr Richardson further submitted that, unless the FTT had jurisdiction within an appeal to consider and, if necessary, re-determine complaints decided by the Commissioner, the only remedy available to an immigration practitioner who wished to challenge an OISC decision on a complaint would be by judicial review, which would be a wholly cumbersome and disproportionate process. It is wrong, he argued, to say that allowing the FTT to consider the substance of a complaint would rob the OISC determination of any validity; the OISC decision remained valid unless and until it was reconsidered, set aside or revised by the FTT in the course of a statutory appeal. That was, submitted the Respondent, an entirely proper and fair process; indeed, contrary to the submissions on behalf of the Appellant, he asserted that to allow a complaint to be challenged before the FTT was fairer to an applicant.[37]On the facts of the present case, the Respondent submitted that the issue relating to client accounts was of relatively minor conseq uence when set against the very serious findings that had, in any event, been made by OISC. Discussion[38]Before descending into detailed consideration of the issue in this appeal, it is instructive to keep in mind the overriding purpose of Part V of the Act as demonstrated by Parliament’s description of the role of the Commissioner in s 83:
‘83 The Commissioner. (1) There is to be an Immigration Services Commissioner (referred to in this Part as “the Commissioner”). (2) The Commissioner is to be appointed by the Secretary of State after consulting the Lord Chancellor, the Department of Justice in Northern Ireland and the Scottish Ministers. (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 I 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; (c) do not knowingly mislead any court, tribunal or adjudicator in the United Kingdom; (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.’
[39]Section 83 makes it plain that the Commissioner’s general duty is to promote good practice by those who provide immigration advice or services (s 83(3)). The Commissioner’s regulatory functions are to be exercised so as to secure, so far as is reasonably practicable, that those who provide such advice or services meet the five requirements of s 83(5). A primary goal is for the Commissioner to secure, through his regulatory powers, that individuals who provide these services ‘are’ (present tense) ‘fit and competent to do so’. The language of Part V, and of s 83 in particular, is that of regulation and the ongoing maintenance of a body of immigration practitioners that is fit, competent and likely to act in the best interests of those who need such services.[40]In that context reference to case law relating to ‘charges’ in disciplinary proceedings or the law relating to unfair dismissal has little or no direct relevance. In fairness, when presenting the oral appeal, Mrs Alexander on behalf the Appellant, did not advance her case by reference to those aspects of her predecessor’s skeleton argument; in my view, she was right not to do so. The process of evaluation by the Commissioner, and if necessary on appeal by the tribunal, is one of assessing fitness and competence. It is not narrowly confined solely to determining whether one or other specific ‘charges’ are established.[41]Having rehearsed the competing interpretations given in the three Upper Tribunal decisions, it is not necessary to labour matters unduly at this point. For the reasons given by UTJ Turnbull in KMI and by UTJ Knowles in the present case, I am entirely satisfied that the wider interpretation of the role of the tribunal on an appeal under s 87 given by them is correct.[42]As UTJ Turnbull held (see paragraph 19 above) an appeal to the FTT under s 87 is to be a full appeal and not simply a review of the exercise by the Commissioner of his/her decision- making power. It is necessary for the FTT to determine for itself whether the Commissioner’s decision was right and to determine (as will normally be the case) whether the applicant is, at the date of the tribunal hearing, fit and competent to provide immigration advice and services.[43]In undertaking an appeal under s 87 the tribunal will consider all relevant and admissible evidence, whether or not it was known to, or taken into account by, the Commissioner when making his own decision on the issue of continued registration. In doing so the tribunal will not be bound by decisions made by the Commissioner on past complaints.[44]The ‘relevant decision’ in an appeal under s 87 relates to registration, rather than a decision on any particular complaint. Schedule 6, paragraph 2 of the Act establishes the yardstick for 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.’
The question for the FTT on appeal is whether the appellant is considered to be competent and otherwise fit to provide immigration advice and immigration services. The powers of the FTT under s 87(2) [see paragraph 13 above] in the event of a successful appeal are to direct the Commissioner either to register the successful appellant or make other alterations to the register or record in his favour.[45]Although a registered person may not appeal in isolation against an adverse finding made by the OISC on a complaint which is recorded against him under Schedule 5, paragraph 9(1)(a), where, in the course of an appeal against a ‘relevant decision’ (relating to registration) under s 87, the tribunal determines that a complaint should no longer be on the appellant’s record it may direct the Commissioner to quash the complaint decision (s 87(2)(d)). UTJ Knowles was entirely correct in holding that the FTT power to make such a quashing order means that the tribunal must have jurisdiction to re-open the OISC determination on a complaint and consider the underlying evidence. UTJ Turnbull was also right to hold that in the course of an appeal hearing the FTT can (and if it is a ground of appeal, must) decide for itself whether a complaint finding is correct.[46]The conclusion that I have reached, which is based upon the clear meaning of the statutory provisions, also affords an immigration practitioner who seeks to challenge or set aside a previous adverse OISC finding on a complaint against him access to an impartial forum, rather than being confined to the more burdensome process of judicial review.[47]It follows that the approach taken by the FTT in AE, as recorded at paragraph 23 above, to the effect that it is not a function of the tribunal to re-examine the merits of complaints or otherwise ‘go behind’ an OISC finding, is wrong.[48]Unfortunately, the line of reasoning by UTJ Hemingway in AE, as summarised at paragraph 26 above, omits reference to the quashing of complaints provision in s 87(2)(d). If the judge had had s 87(2)(d) in mind, he could not have gone on to state, as he did at paragraph 69 (set out at paragraph 26 (vii) above), that Parliament had not given any power to the FTT to direct removal of a complaint or decision from the record.[49]It follows that the very clear and sound analysis given by UTJ Knowles at paragraphs 81 to 86 of her determination in the present case is entirely correct and that the contrary analysis of the UT in AE is not good law and is not to be followed.[50]For the reasons that I have given, the decision of UTJ Knowles is to be upheld and the appeal will be dismissed.

Lady Justice Sharp:

[51]I agree.

Cited in 7 later judgments