Ajay Omnath Kapoor v Immigration Advice Authority [2025] UKFTT 809 (GRC)

[2025] UKFTT 00809 (GRC)Case Reference: FT/IMS/2024/0007
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 28 th March 2025Date 2 nd July 2025
Immigration Services
Heard by Cloud Video Platform
Before
JUDGE KIAIMEMBER SHLPAKMEMBER CONWAY
Between
AJAY OMNATH KAPOORAppellantIMMIGRATION ADVICE AUTHORITYRespondentRepresented himself for AppellantMr Mopas (in-house legal advisor) for RespondentDecision: The appeal is Dismissed.REASONS

INTRODUCTION

[1]This is an appeal brought before the First-tier Tribunal (“FtT”) pursuant to section 87(2) of the Immigration and Asylum Act 1999 (“The 1999 Act”).[2]The decision under challenge is that made by the Immigration Advice Authority “IAA” (previously known as the Office of the Immigration Services Commissioner “OISC”- for consistency we refer to them as the IAA throughout) on 14th August 2024 refusing the Appellant’s application for registration at Level 1 under Schedule 6 of the Immigration and Asylum Act 1999, in the category of ‘Immigration’ only.[3]Mr Kapoor is the sole applicant advisor at Kradh Harlington. In brief summary, Mr Kapoor applied for registration at Level 1, but the IAA refused that application following a Competence Assessment. He appealed against that decision on 10th September 2024.

THE FACTS

[4]Prior to the application which is the subject of this appeal, the Appellant had been registered with the IAA at Level 3 from June 2011 to May 2023. He left the scheme of his own volitation and remained outside of the scheme for 12 months.[5]In accordance with the IAA’s application procedure, the Appellant submitted a new application for Level 1 registration. He was invited to complete the IAA Level 1 Competence Assessment. This comprises 2 sections and Appellants must pass both sections in order to pass the assessment overall. The pass mark for each section is 60% (however the Appellant submits that this was not clear from the documentation provided – addressed further below).[6]On 25th July 2024, the Appellant took the test. He passed the first section (70%) but failed the second section (52%). The Appellant therefore failed the assessment overall.[7]In a decision dated 14th August 2024, the IAA refused the Appellant’s application stating “In consideration of all the circumstances, the Commissioner has decided to refuse Kradh Harlington’s application for regulation…As Ajay Kapoor scored less than the required pass mark in their assessment, they have failed to demonstrate sufficient competence. Therefore, the Commissioner cannot be satisfied of their fitness and competence to provide immigration advice and services and has decided to refuse Kradh Harlington’s application.[8]On 10th September 2024, the Appellant appealed that decision on the following grounds:a. The Respondent failed to take into account the Appellant’s regulatory history;b. Section 2 of his OISC Level 1 Competence Assessment contained a question that was of an OISC Level 2 nature;c. It is in the interest of HJT Training Ltd to fail candidates;d. It was not clear that candidates had to attain 60% in each Section to pass the OISC Level 1 Competence Assessment overall.[9]The Respondent made an application to Strike-Out the Appeal on 15th October 2024.[10]The Appellant submitted a reply to the Strike-Out application (undated).[11]The Tribunal refused that application in a decision dated 23rd January 2025.

LEGAL BACKGROUND

[12]The Immigration & Asylum Act 1999 (“the 1999 Act”) provides a scheme for regulation of immigration advisors. The Office of the Immigration Services Commissioner (now renamed the IAA) is established by section 83 of the Act and the Commissioner has a general duty to promote good practice by those who provide immigration advice or immigration services. The Commissioner also has certain regulatory functions set out in Schedule 5 to Part 1 of the 1999 Act.[13]The Commissioner must exercise his/her functions so as to ensure, so far as 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 theirclients” [Section 83(5)(b)].[14]Section 84(1) of the 1999 Act provides that “No person may provide immigration advice orimmigration services unless he is a qualified person”. A qualified person is defined in section 84(2) to include: “(a) A registered person … (b) …. (ba) [A person] authorised to provide immigration and advice or immigration services by a designated qualifying regulator … (c) – (d) …. (e) [A person] acting on behalf of, and under the supervision of, a person within any of the paragraphs (a) to (d) (whether or not under a contract of employment).[15]The reference to a registered person in section 84(2)(a) is reference to a person who is registered with the Commissioner under section 85 of the 1999 Act. A person’s entitlement to provide immigration advice or immigration services by virtue of sub-section (2)(b) “Is subject to any limitation on that person’s authorisation imposed by theregulatory arrangements of the designated qualifying regulator in question …” (section 84(3A)). By section 86A of the 1999 Act a “designated qualifying regulator” includes “theLaw Society”.[16]By section 85, the Commissioner must prepare and maintain a register of those persons registered by him/her to provide immigration advice and services. The system of registration is established under Schedule 6 of the 1999 Act. If the Commissioner considers that an applicant for registration is “competent and otherwise fit to provideimmigration advice and immigration services”, s/he must register that applicant. Equally, the Commissioner must cancel a person’s registration if s/he considers that a person “is no longer competent or otherwise unfit to provide immigration advice or immigration services”. No further definition is provided by the 1999 Act as to what is meant by “competent or otherwise [un]fit”.[17]Schedule 5 of the 1999 Act provides that the Commissioner may make rules regulating any aspect of the professional practice, conduct or discipline of registered persons. These rules are known as the Immigration Service Commissioner’s Rules. The same schedule provides for the Commissioner to issue a Code of Standards, which apply to any person providing immigration advice or immigration services. “It is the duty of anyperson to whom the code applies, to comply with its provisions in providing immigration adviceor immigration services” (paragraph 3(4) to schedule 5 to the 1999 Act).[18]An appeal process is provided for, so that “any person aggrieved by a relevant decision of the Commissioner may appeal to the First-tier Tribunal against the decision” (section 87(2)).[19]The refusal of an application for registration made under Schedule 6 of the 1999 Act is a relevant decision.[20]The appeal is to the First-tier Tribunal and is a full appeal and not simply a review of the exercise by the Commissioner of his/her decision-making power. In an appeal it is necessary for the Tribunal to determine for itself whether the Commissioner’s decision was right and, in the circumstances of the instant case, to determine whether the applicant is, as of the date of the Tribunal hearing, fit and competent to provide immigration advice and services to the specified level. In doing so, the Tribunal will consider all relevant admissible evidence whether or not it was known to or taken into account by the Commissioner when making his/her decision (Visa Joy Ltd v Immigration Services Commissioner [2017] EWCA Civ 1473). The burden is on the appellant, the standard of proof being to the balance of probabilities.

THE EVIDENCE

[21]For the purposes of determining this appeal, we have considered:a. Those documents contained within the open bundle consisting of 297 (electronic) pages;b. Those documents contained within the closed bundle of 36 (electronic) pages;c. A gist of the withheld information;d. The Appellant’s skeleton argument;e. The Respondent’s skeleton argument.[22]In support of his claim to be competent to the required standard the Appellant produced (in addition to written submissions), a detailed witness statement.[23]In that witness statement he explained the following about his background:a. He holds a Bachelor of Laws (LLB) (Hons) degree with Upper Second-Class Honours (2:1) from the University of East London;b. During his part-time degree, he was employed full-time with a Solicitors Regulation Authority (SRA) regulated firm, where he served as a personal assistant to the Senior Partner. Under his supervision, he managed Immigration and Criminal Cases. His tenure at the firm spanned 2008-2010;c. In 2011, he first registered as an Immigration Advisor with the IAA. In order to secure this registration, he passed the Level 1 assessment on his first attempt and subsequently passed the Level 3 assessment within approximately 15 days of passing the Level 1 assessment;d. He practiced as a Level 3 advisor from 2011 – May 2023, handling complex cases and representing clients before the Immigration Tribunal;e. In 2011 he was registered under Ask Legal Services Ltd. He was the sole Director and the individual with significant control of Ask Legal Services. During that time, an audit was conducted by the IAA where the firm was awarded 100% compliance. He voluntarily closed that firm in 2012/13.f. He joined another OISC firm, Reiss Edwards, as a full-time employee from June 2014-April 2015. Reiss Edwards later converted to an SRA firm.g. In April 2015, he joined another OISC firm, Edmans & Co, where he worked until June 2017. He was the sole registered advisor and the firm operated under his registration at Level 3. The director of the firm, under his supervision, passed level 1, level 2 and level 3 OISC assessment and was subsequently registered with the IAA at level 3 in 2017.h. The Appellant resigned from Edmans & Co in June 2017 to start his own practice. He launched Kradh Harling Ltd in August 2017. He is the sole director. This operated as a specialist Immigration Law Firm regulated by the IAA at Level 3 until May 2023, when he chose not to renew his registration. During this time he was audited by the IAA in 2018 with no issues found in relation to his competence.i. He remained registered with the IAA until May 2023, when he voluntarily decided not to renew his registration.j. Throughout his registration with the IAA, he successfully managed numerous Immigration matters, including highly complex cases. He represented clients in Immigration tribunals, drafted pre-action Protocol letters with successful outcomes and instructed Counsel when necessary. Clients continued to contact Kradh Harlington even after May 2023 due to its success rate. The facebook business page of Kradh Harlington has over 80,000 followers and it receives excellent reviews on Google.k. Due to continued contact from former clients and a surge in immigration enquiries, he decided to renew his registration and contacted the IAA in March 2024.l. The IAA refused to renew his registration based on their policy which mandates that if registration is not renewed within 6 months, it expires and the advisor must restart the process, including undertaking a Level 1 assessment. During this time period, he was employed with a SRA firm specialising in UK Immigration, managing a range of cases, including appeals, which the IAA refused to consider. He was employed with them from October 2023 to April 2024.m. The Appellant opted to take the Level 1 assessment rather than challenge the IAA’s ‘arbitrary six-month policy through Judicial Review’.n. As part of his Continuing Professional Development (CPD), he had previously attended paid webinars and short online courses organised by HJT Training during his registration with the IAA.o. “25. Additionally, the respondent, as a regulating body, have disregarded my 12 years of experience and expertise as a regulated advisor at their highest level (Level 3), with an excellent record of compliance and success, refusing to register me solely based on the flawed marking of the assessment and their failure to perform fairly and adequately as a regulating body. I continue to possess level 3 skills, as demonstrated by management of this appeal entirely on my own”. The Oral Hearing[24]At the hearing before us, the Appellant represented himself - he attended late due to a misunderstanding as to the start time of the hearing. The Respondent was represented by Mr Mopas.[25]The Appellant indicated that he had not had sight of the IAA’s skeleton argument. That was forwarded to him at the outset of the hearing. He also indicated that he was unaware that Ms Randall Brandwood was due to give evidence. He was referred to a previous email which stated that she would be attending the hearing as a witness. He confirmed that he had seen that email but had not appreciated that Ms Randall Brandwood was the person being referred to.[26]Before proceeding to the substantive hearing, the Tribunal heard submissions relating to the Rule 14 order.[27]The Appellant gave evidence and was questioned by Mr Mopas. No other witnesses were called on his behalf.[28]The IAA called two witnesses: Ms Stephanie Jones (there were no questions put to her by the Appellant) and Ms Randall Brandwood.[29]Following a ‘Open’ (public) hearing, the Tribunal went into a ‘Closed’ hearing and heard evidence from Antonia Randall Brandwood.[30]The Tribunal then returned to a ‘Open’ hearing. A gist of the closed hearing was provided to the Appellant (orally) by Mr Mopas, namely ‘Ms Randall Brandwood adopted her statement, within her statement Ms Randall Brandwood explained her experience in the Immigration field, I asked an additional question in Chief, asking her if in her experience all the questions in the exam were of a Level 1 nature, she agreed. The Tribunal then asked their questions. In my notes there were two questions. First question was whether Ms Randall Brandwood set the questions or was just the marker. Ms Randall Brandwood confirmed that she was just the marker. She was not sure whether she wrote this particular paper, but she does write papers on behalf of HJT. The second question from the Tribunal was whether generally these questions were in keeping with what candidates are asked at Level 1 assessments, Ms Randall Brandwood confirmed that yes they are. The particular question that you dispute is deliberately tricky and it’s designed to see if Level 1 advisors would give incorrect advice.”.[31]Both sides made closing submissions and the determination was reserved. We do not set out all the submissions here, but note two points made by the Appellant (which are addressed further below):a. The fact that it was a ‘tricky question’, means there would have been different answers to it. In those circumstances, the Appellant should have been permitted the opportunity to see the assessment question and mark sheet, in order to check it;b. There had been a procedural irregularity because the Respondent had served the Rule 14 bundle ‘late’ (before 14th February). The Appellant wasn’t given time to sufficiently challenge the application. DECISION AND DISCUSSION PRELIMINARY ISSUE: RULE 14

DECISION AND DISCUSSION

[32]Rule 14(2) of the General Regulatory Chamber Procedure Rules states that that the Tribunal may give a direction prohibiting the disclosure of a document or information if:a. The Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; andb. The Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.[33]Rule 14 (6) states that “The Tribunal may give a direction that certain documents or information must be or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose such documents or information to other persons, or specified other persons”.[34]At the outset of the hearing, we noted that the IAA’s Rule 14 application had been granted on 21st March 2025. The IAA had served on the Tribunal, but not the Appellant, the following documents:a. The Appellant’s competence assessment paper, including his questions and marks;b. The assessment marking scheme; andc. A witness statement from the assessment marker (Ms Anthonia Randall Brandwood), explaining her reasons for awarding the marks she did in respect of the Appellant’s assessment paper.[35]The Appellant had been provided with a gist of the documents in that bundle.[36]The IAA had had made an application (dated 21st February 2025) under Rule 14(2) and (6) of the General Regulatory Chamber Procedure Rules to prohibit disclosure for the following reasons: “the Respondent respectfully submits that disclosing the documents listed above would likely cause the Respondent serious harm. The contents of the Respondent’s competence assessment papers are highly sensitive and are designed to test the competence of applicants wishing to join the Respondent’s regulatory scheme. The Respondent respectfully submits that, by disclosing these documents to the Appellant and to the wider public in the context of these proceedings, it would have a negative impact and seriously undermine the integrity of the Respondent’s competence assessment process. As such, the Respondent respectfully submits that it would be in the interests of justice and proportionate to give a direction prohibiting the disclosure of those documents listed above”.[37]The Respondent had objected to the application in a document dated 27th February 2025 for the following reasons:
“1. Procedural Impropriety The entire appeal is predicated on the respondent’s refusal to provide the documents now sought to be submitted to the Tribunal in a closed bundle. The failure to disclose this material evidence to enable the appellant to make appropriate representations will result in an unfair decision-making process, amounting to procedural impropriety. 2. Section 6 of the Human Rights Act 1988: Section 6(1) of the Act states, “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”
. By depriving the appellant of the opportunity to argue his case fairly through non-disclosure of relevant material which is at the hear of this appeal, will be a breach of the appellant’s rights under Article 6 of the Human Rights Act 1988 – Right to a fair trial”. In an email dated 24 February 2025, the respondent cited the need to maintain the integrity and confidentiality of the assessment process as the reason for the closed bundle. However, the refusal to provide the material evidence to the appellant for the presentation of his argument and potential independent expert review does not enhance the integrity of the assessment process in the public eye or the respondent's image. The respondent is expected to be open and transparent, especially if they genuinely believe there is nothing to conceal and that the assessment and marking were fair. Without access to the relevant evidence, which the appellant has sought from the outset, the appeal lacks substantive foundation. The respondent's insistence on the correctness of the assessment and marking without providing the appellant an opportunity to make representations in light of the relevant evidence, is unjust. Therefore, the appellant respectfully submits that the Tribunal should refuse the respondent's application for a closed bundle and direct the respondent to provide the same to the appellant to ensure a fair trial’.[38]Keeping in mind our For consistency, the determination refers to ‘we’, however the decision taken in relation to Rule 14, was taken by the Judge alone. duty to keep this under review, we asked for further submissions on the Rule 14 Order in place, as a preliminary issue.[39]The Tribunal asked the IAA to address one particular issue that had concerned them: in light of the fact that the Appellant has already had sight of questions, why in those specific circumstances should they not be disclosed to him.[40]The IAA submitted that the contents of the closed bundle are highly sensitive and designed to test the competency of applicants wishing to join the regulatory scheme. It is the only objective way the IAA has to measure an applicant’s competence. It was submitted that disclosure would have negative ramifications and seriously undermine the competence assessment process because the questions – or the gist of the questions - are reused. It was submitted that the Tribunal could carry out it’s investigatory function by considering and testing the closed material and as such it would be permissible for the tribunal to exclude the Appellant in accordance with the legal test of Brown. Reference was made to another recent case in the First Tier Tribunal where the Tribunal had chosen to withhold similar evidence but permitted the Appellant to cross-examine the witness.[41]In contrast the Appellant submitted that the documents are at the heart of his appeal, they were the reason he had brought an appeal -because the Respondent had refused to give those documents to the Appellant. He had already seen the questions papers, so there was no reason to keep the paper from him, it was his own answers that he wanted to see. When he was provided with his marks, he wanted to cross-check this with the paper. He did not accept the argument that it was sensitive because it was his question paper and they would be given to him. The Appellant argued that this was very important to his appeal and without the paper there was no real way that he could present his defence properly. He would be deprived of the opportunity to respond. Withholding the paper and answer would lead to unfairness of the whole procedure.[42]Having heard detailed submissions from both parties, we gave our decision on the issue at the hearing, upholding the Rule 14 Order. We agreed with the reasons previously provided for granting the Rule 14 application (as set out in the order, dated 21st March 2025). We were also greatly assisted by the further evidence provided by the IAA about why disclosure of documents already seen by the Appellant should not be disclosed to him. In light of the explanation that the questions - or the gist of the questions - are re-used in future assessments, we accepted that disclosing the documents would be likely to cause serious harm to the Respondent and having regard to the Interests of Justice it was proportionate to prohibit disclosure. Whether re-using questions is the best way to test candidate’s competence, is something we would encourage the IAA and HJT to reconsider. However, we accept that this is how the system currently works and in those circumstances, we granted the application. We assured the Appellant that we would carry out our investigatory function by considering and testing the closed material, having due regard to his submissions, in the closed hearing closed. All 3 members of the panel are Immigration experts and would apply their mind to the issues raised.[43]For completeness, we note the Appellant’s submission in closing submissions that there had been a procedural irregularity because the Rule 14 bundle had been served late (ie after the Certificate of Compliance had been completed). However, the fact that we considered detailed submissions in relation to the Rule 14 at the outset of the hearing, means that there was no detriment to the Appellant. He had the opportunity to make any submissions he wished to and these were considered in full, before the Tribunal made the decision to uphold the previous Rule 14 decision. It was clearly in the interests of justice that the bundle be admitted into evidence and it aided the Tribunal hugely to have sight of it, in order to address the grounds of appeal raised by the Appellant. DECISION AND DISCUSSION CONCLUSIONS

DECISION AND DISCUSSION

[44]Our task is to determine whether the IAA wrongly refused to register the Appellant in relation to Level 1 work.[45]In coming to our conclusion, we have taken account of all the written and oral evidence before us, even if not specifically referred to herein. We note that much of the factual matrix relied upon by the Appellant is not in dispute, and where it is in dispute we resolve that dispute below.[46]We have at the forefront of our minds the scope of work a Level 1 advisor as detailed in the various guidance documents available in the public domain, when undertaking our assessment of the Appellant’s competence. It is a helpful guide to what is required for this level of immigration advisor.[47]We address each of the Appellant’s grounds below (albeit it in a slightly different order to that in which they were originally pleaded): (a). It was not clear that candidates had to attain 60% in each Section to pass the OISC Level 1 Competence Assessment overall.[48]The Appellant contends in his skeleton argument at §6: “a) The OISC publication included in the open bundle, explicitly states that achieving a score of 60% is required to pass level 1 assessment. It does not stipulate that 60% is required in each individual section. b) The lack of clarity in the guidance is a material issue, as candidates, including the Appellant, would have planned their time and strategy accordingly, with the understanding that an overall score of 60% would suffice”.[49]In considering this submission, we have had regard to the “OISC Application for Registration Guidance Notes” November 2023 which was included in the Open Bundle and is in the public domain. This states under the heading “OISC Competence Assessments” (pg 277 of the Open Bundle):
“The pass mark for Level 1 exams is 60%... Applicants are required to pass both sections in order to pass the assessment and only one attempt is allowed per applicant, per application. If an applicant is unable to pass both sections of their Level 1 Assessment, then their application for regulation will be refused”
(emphasis added).[50]We conclude that it is clear from this extract that an Applicant is required to ‘pass’ bothsections of the assessment (we note that the word ‘both’ is underlined in the guidance itself for emphasis). The guidance explicitly states that the pass mark is 60%, therefore the logical conclusion is that for an Applicant to ‘pass’ both sections, he/she is required to achieve 60% in both (ie 60% in each section of the Assessment). The words ‘If an applicant is unable to pass both sections…then their application will be refused’, if the requirement was simply to get 60% overall. We do not find that this ground has merit. (b). It is in the interest of HJT Training Ltd to fail candidates;[51]The Appellant asserts in his skeleton argument that a legal issue for consideration by this Tribunal is: ‘Whether a conflict of interest arises due to the involvement of the training organization (HJT Training Ltd) in both, as an assessment provider and marker and as a well-known training provider essentially in light of the subsequent training requirement of OISC for the failed candidates to re-sit the assessment potentially making HJT Training first choice by the failed candidates for training’.[52]The Grounds of Appeal stated that: “The failed candidates are more likely to undertake their training from HJT Training Ltd., to retake the assessment HJT Training Ltd., being the test provider and the marker, than any other relevant course providers. This potentially can create a direct correlation between the failed candidates and the business interests of HJT Training Ltd. Therefore, by failing to consider the direct conflict of interest and the possibility of a correlation, the respondent erred in their decision to refuse the appellant registration solely based on the assessment results’.[53]The Respondent responds at §14 of his skeleton argument that “14. Those responsible for writing and marking the IAA assessments at HJT comprise of highly skilled immigration law specialists, including immigration solicitors and barristers with all competence assessments being marked anonymously. The Respondent submits that HJT are a professional and highly specialised organisation. Therefore, the exam markings awarded by HJT are correct, objective and reliable. In those circumstances, the Respondent respectively submits that this ground should carry no weight and be disregarded’.[54]We note that similar arguments were made in the case of O’Tega Immigration Law Practice v Immigration Services Commissioner (IMS.2018.0005), namely that there ‘was a conflict of interest in HJT moderating and assessing OISC examination scores’. The Upper Tribunal found that this submission was unarguable Noted at §32 of the FTT determination. and upon the matter being remitted to the FTT (for reasons unconnected with this ground), the FTT (notably, the now Chamber President – albeit he was not the President at the time of the determination) concluded at §56 that ‘HJT are entirely independent of the OISC and we endorse fully the conclusions reached by the Upper Tribunal on the conflict of interest issue raised by Mr Isiakpere. We say no more on this substantive issue other than to adopt the Upper Tribunal’s findings’. We are not bound by these decisions, we do however find them persuasive.[55]We further note that the OISC Guidance “OISC Assessment Frequently Asked Questions’ dated 19th April 2023 states: ‘1. Can I have detailed feedback on my assessment? No, the OISC does not provide specific feedback to candidates as this simply is not feasible. You will receive your exam results via email with marks awarded and the percentage scored from the OISC’s Competence Assessment provider. 2. Can I have my paper re-marked? The OISC automatically moderates all papers that fall within an 8% (currently between 55%-63%) bandwidth of Level 1 assessment pass mark….these papers are re-assessed by a second independent marker. If your score falls outside that bandwidth whether it is a pass or fail, it is not subject to moderation and will not be re-marked. … 4. Who writes and marks OISC Assessments? The OISC employs a specialist Immigration Law Training organisation and their assessment team is comprised of highly skilled immigration law specialists including solicitors and immigration barristers. They are experts in their field and highly qualified in the field of immigration law. 5. How do I know I [sic] my test paper has been marked fairly and objectively? OISC assessments are completely anonymised during the marking process and assessors award scores to exam scripts with no knowledge of those answers they are marking. Level 1 multiple choice answers are automated and marked by the online system’.[56]We also took into account the evidence of Stephanie Jones, the Authorisations Team Manager at the IAA (contained in the Open Bundle). We noted in particular, her evidence that “HJT mark all of the papers anonymously to avoid any conflict” (at §18). We also heard evidence from Ms Antonia Randall Brandwood in a closed hearing who again stated that the assessments she marked were anonymised.[57]We noted the IAA’s submission that the fact that papers are re-marked if they are borderline, demonstrated that HJT were not seeking to make commercial gain by failing candidates.[58]In response to this, the Appellant submitted that he could still be identified by his email address because he had undertaken courses previously with HJT. He also submitted that if the exams are re-marked by HJT then it cannot be said that there is no commercial gain by failing candidates. To the extent that the Appellant is alleging fraudulent activity (it was unclear if the Appellant was suggesting that HJT claim to anonymise the papers but actually can and do identify candidates and/or that HJT deliberately do not accurately mark papers), we find that this is a very serious allegation. No evidence has been put forward to support this allegation (we note the Appellant made a Freedom of Information request which was refused, however this does not change the fact that there is no evidence before this tribunal to support any allegation of fraud). We find any such suggestion as entirely without merit.[59]The guidance above explains that all assessments are anonymised and marked by experts in the field. All papers are automatically re-marked by a second independent marker if they fall within an 8% bandwidth of the pass mark. We find that these are all adequate steps which have been taken to make the process as fair and reliable as possible. We find that these measures also make it difficult for an assessor to unfairly/deliberately fail a candidate.[60]We find there is no ‘correlation’ between failed candidates and the business interests of HJT. If a candidate fails their assessment, there is no requirement for them to undertake further training with HJT, we do not accept the Appellant’s submission that 99.999% of Applicants would choose to go with them because they set and mark the papers. IAA training is offered by various providers, not exclusively HJT. We have not been provided with any evidence to suggest that candidates are encouraged to undertake courses with HJT by the IAA, the evidence of Ms Jones was that this was not the case, we accept this.[61]If it is the case that HJT market themselves by stating that they mark the assessments, it would arguably be more beneficial for HJT to pass as many candidates as possible to demonstrate how effective their training is, rather than to fail them (as the assessments are anonymised, they do not know which candidates they trained and which they did not). We also note from the evidence of Ms Randall Brandwood, that she works as a contactor for HJT, as such any ‘benefit’ to her of failing applications, is even further reduced. We do not find there is merit in this ground. (c). Section 2 of his OISC Level 1 Competence Assessment contained a question that was of an OISC Level 2 nature[62]A Rule 14 direction was made by the Tribunal, this has already been addressed above. As such, parts of the hearing were heard in ‘closed’ proceedings.[63]Throughout the closed proceedings and our deliberations following the hearing, we had at the forefront of our minds, the Grounds of Appeal, where the Appellant stated: “The online assessment was divided into two parts – First part consisting of Multiple Choice questions and the Second part consisting of a few questions with marks allocated for each question based on a scenario. As the respondent has unlawfully refused to give the question paper to the appellant, it is hard to say whether the questions contained in the first part were all of level 1…. …returning to the issue of the question paper itself, the scenario indeed was not for level 1 assessment. In the absence of the question paper the reasons are given based on the memory of the appellant…The appellant was awarded 1 out of 8 marks for a question in the second part which more likely related to advice to the applicant….and this perhaps brought the total of the marks down in section 2… The scenario was based on a child visiting the settled parents in the UK where the child was unable to return to their own country due to some serious issues and had to make an application for leave to remain. When an applicant makes an application for leave to remain (from within the UK) while on a visitor visa, the chances of success of such an application are usually less than 50%. Therefore, the advisor must be an experienced one (with practical experience of complex immigration matters) to advise correctly. The scenario had more than one practical solutions, albeit all with risk of refusal…Therefore, the design of the question paper with the said scenario-based question itself was such that it would have resulted in a higher number of candidates failing the level – 1 assessment’.[64]The panel consists of 3 Immigration Law experts. We examined the paper (and the answers) in detail. We have been able to check for ourselves whether there were any questions of OISC Level 2 level and have concluded there were not. We have concluded that it consisted entirely of OISC Level 1 type questions.[65]In the “Guidance on Competence”,a Level 1 advisor is described as being “permitted to make applications that rely on the straightforward presentation of facts to meet a set of qualifyingcriteria. Such applications will not be discretionary or concessionary in nature, and applicantswill not have an immigration history which is likely to adversely affect the application inquestion”. We find that the questions on the second part of the exam sheet (that the Appellant failed) fits this criteria: it was an application relying on straight forward presentation of facts to meet a qualifying criteria. It was not discretionary or concessionary in nature. There was no immigration history that was likely to adversely affect the application in question.[66]We note the Appellant’s submission in closing, that because it was described as a ‘tricky question’ by Ms Randall Brandwood in her evidence, this means there would have been different answers to it and therefore the Appellant should have been permitted to see the question and answer. To clarify, we find that the question was ‘tricky’ because it needed a little more thought to decide the correct application, not because there were different answers available to the candidate. We have already addressed the Rule 14 direction above. As set out above, we have been able to carry out our investigatory function by considering and testing the closed material, having due regard to the Appellant’s submissions. (d). The Respondent failed to take into account the Appellant’s regulatory history/relevant factors[67]The Appellant refers to the Decision Letter and submits that the following words indicate that his background was not taken into account: ‘As Ajay Kappor scored less than the required pass mark in their assessment, they have failed to demonstrate sufficient competence. Therefore, the Commission cannot be satisfied of their fitness and competence to provide immigration advice and services and has decided to refuse Krdadh Harlington’s application’.[68]The Appellant submits that this demonstrates that the refusal was based solely on the assessment results. He rejects the IAA’s claim to have considered his history, stating that he has provided no evidence to support this.[69]The decision letter concludes:
“In consideration of all the circumstances, the [Respondent] has decided to refuse [the Appellant’s] application for regulation.”
. The IAA submits that the words ‘in consideration of all the circumstances’ demonstrates that the IAA took into account all the Appellant’s circumstances.[70]We accept that from looking at the decision letter, it is not entirely clear if the IAA took into account the Appellant’s regulatory background, it is not set out in any detail. The reasoning in the decision letter is strikingly light on this issue and inadequate. It would be of much greater assistance to Appellants (and the Tribunal) if the IAA explicitly set out what ‘considerations’ it has taken into account when coming to a decision. We have sympathy with the Appellant’s submissions on this point.[71]However, an appeal to the First Tier Tribunal is a full appeal and not simply a review of the exercise by the IAA of his decision-making power. We must determine for ourselves whether the IAA’s decision was right and, determine whether the Applicant is, as of the date of the Tribunal hearing, fit and competent to provide immigration advice and services to the specified level. We are permitted to consider all relevant admissible evidence whether or not it was known to or taken into account by the IAA. The burden is on the Appellant, the standard of proof being to the balance of probabilities. As such, we take such an assessment below.[72]We have considered all of the evidence available to us. We emphasise here that we have not accorded any special status to the IAA’s decision or reasoning, instead we have put ourself in the shoes of the IAA, we have considered the evidence and the competing arguments and we have made up our own mind.[73]We start by noting that the IAA’s ‘Guidance of Competence’ 2021 states at page 3:
‘The OISC assesses competence in a variety of ways and at different times. • Application process - We assess competence initially during the application process. Applicants are required to submit a Competence Statement. This document requires applicants to provide information that demonstrates how they meet the competence requirements. They may do this on the Statement by, for example, indicating the number of years’ experience they have, the professional development they have undertaken and what resources they have in order to keep updated on changes in law and procedures. Information on the Competence Statement is available on the OISC website: https://www.gov.uk/government/publications/how-to-become-a-regulated-immigration-adviser. In addition applicants will normally be required to take a formal written competence assessment in order to demonstrate their level of knowledge and how to apply this to a client’s particular situation…’
(emphasis added).[74]We also note that the ‘OISC Application for Registration Guidance Notes’ November 2023 explicitly states ‘If an applicant is unable to pass both sections of their Level 1 Assessment, then their application for regulation will be refused’ (page 10).[75]We accept that the IAA was correct to ask the Appellant to sit the Competence Assessment. We appreciate he had been IAA registered for many years and had had no difficulties with audits (or otherwise) in that time. Nonetheless his last exam had been in 2011, his last audit had been 6-7 years ago and he had left the scheme 15 months before the refusal (even if he had been working for an SRA firm, there was no evidence about what tasks he been undertaking for that SRA firm, nor about how many hours he was working there). It was not unreasonable in those circumstances to ask him to take an assessment to test his competence. Looking at the case holistically, the Appellant’s circumstances were not so exceptional as to require an exemption from the general requirement. The IAA generally expects Applicants to attain a pass mark in Competence Assessments. We accept it is important for the Commissioner to have a system for assessing whether an individual has the required degree of competence which provides consistency for Applicants and trust in the system by those seek immigration advice and services.[76]Given the importance the IAA place on examination score in determining an individual’s competence (relying on the results save in exceptional circumstances – as clarified by Ms Jones in her evidence), we have examined in detail the examination paper and the Appellant’s answers.[77]We have seen the marksheet and the statement of Ms Randall Brandwood who marked the exam script. She set out in writing and during her oral evidence why she awarded the marks she did for each question. We took these into consideration, however the task of the Tribunal is to test the Appellant’s competence on the available evidence not to assess how competency is tested by the IAA and HJT. Nevertheless, the information was a useful to the Tribunal in order to enable it to have an insight into how HJT undertook it’s assessment.[78]The Tribunal has been able to assess for itself whether the Competence Assessment contained a question that was of an OISC Level 2 nature (as addressed above). Importantly, we have also been able to make up our own minds as to competence, applying the expertise of the panel – all 3 of whom are experts in Immigration law.[79]The Tribunal has examined in significant detail the questions that were set in the IAA assessment that the Appellant failed, as well as the Appellant’s answers, in order to assess whether the answers provided by the Appellant support his contention that he is competent to provide immigration services and advice.[80]We can see from the exam paper that the Appellant’s answer was – in significant part - incorrect. He failed to identify accurately the applicable route under the Immigration Rules, in the scenario set out therein. He importantly gave incorrect advice on 2 important issues. He further failed to address the requirements of the rules. This was the reason that he received a low mark of 1 out of 8 (and no marks for the first question). We concluded that the mark awarded accurately reflected the answer provided.[81]The Appellant received 11 marks out of 14 for the next question. Again, we agreed that this was correct. He identified some important points, but there were several that he did not address.[82]In relation to the last question (the Appellant received 2 marks out of 5), we agreed with the marks awarded, in particular we noted that that the Appellant provided incorrect advice on an important aspect of appealing the decision.[83]We emphasise here that we have not decided competence simply on the basis of the assessment failures. We have taken into account all of the factors, including those which the Appellant says favour him, prior to deciding whether the competency threshold has been met.[84]We accept that the Appellant has gained experience of immigration law in the UK over a not insubstantial period of time. He has worked at numerous firms, passed IAA audits and attended HJT courses. He believes that this should be deemed as being competent enough to act and make representations on behalf of clients. We consider these in more detail below.[85]The Appellant’s qualification (LLB) is generally commonplace amongst Applicants, and we conclude that this in itself is not necessarily indicative of a person’s competence to provide immigration advice and/or services.[86]We accept that the Appellant practiced as a Level 3 Immigration advisor (registered with the IAA) between June 2011-May 2023. During this period he passed 2 audits with no difficulties, however we note that the most recent audit was in 2018. At the time of the refusal, it had been 15 months since he had been registered. At the date of the hearing it had been almost 2 years since he had been registered. It had been 6-7 years since his last audit. We agree that the Appellant had clearly been deemed as competent, however there can be no assumption of continued competency. The law and Procedure in Immigration is fast evolving and practitioners are required to keep up to date with those changes (not just legislation/caselaw but also but relating to procedural issues). For this reasons, we have had particular regard to the period post-dating the most recent audit and/or registration with the IAA when considering whether he is still to viewed as competent.[87]The Appellant set out a detailed chronology in his witness statement, of his various roles over the years. Including his most recent work since leaving the scheme, working for a SRA firm. However, we were provided with no evidence in relation to any of these roles. There were no letters or witness statements in support. We were not informed of the type of work undertaken, the level of skills obtained or the hours worked. There was no evidence from anyone in relation to the Appellant’s competence. We accept of course that the Appellant was IAA regulated with no difficulties, but as set out above the Appellant’s last audit was in 2018 – 7 years ago. That is not an insubstantial period of time ago, when the IAA last looked into the Appellant’s circumstances. We had no evidence post-dating this, in particular relating to the time period after he left the IAA scheme.[88]The Appellant stated in response to questions from the IAA that he had kept up to date with changes and developments in Immigration law, however he did not set out before us, how he had kept up to date with changes to immigration law and practice, - albeit we noted the email dated 10th August 2024 from HJT which confirmed he had attended 2 courses during lockdown in 2020. We were not provided with details of any courses he has recently undertaken (keeping in mind that there are no set hours of CPD required for IAA practitioners, so we could not assume that he had undertaken a set amount of CPD training). However, even if we accept that the Appellant had undertaken adequate CPD points whilst under the IAA scheme, we again had no evidence relating to any courses he may have undertaken since leaving the IAA scheme.[89]We attach weight to the fact that there was no evidence before us relating to any training the Appellant had undertaken, in light of the failures identified on this Competence assessment.[90]In this case, the Appellant did not pass the Competency Assessment, we have undertaken our own assessment of that test and concluded that it was marked correctly. The Appellant made some significant errors – we note it was not a borderline case (indeed if it had been it would have been automatically re-marked).[91]Having taken account of all the evidence produced in support of the Appellant’s case that he is competent to provide immigration advice and services to the required standard, (including his examination results, his documentary evidence and his oral evidence), we conclude that the Appellant has not demonstrated his competence to provide immigration advice and services to the standard required for registration at Level 1. We undertook our assessment based on all of the evidence before us and stood in the shoes of the Commissioner when doing so. We have determined for ourselves whether the Appellant is competent to the required standard, we have nonetheless placed weight on the fact that he failed to meet the standard, through the examination process and made several significant errors in his exam. These examinations are designed specifically to ensure consistency and fairness. We find that the Appellant has not demonstrated that the IAA’s decision to refuse registration was wrong. For the reasons set out above, we dismiss his appeal. Signed Date: Judge Kiai 30th June 2025