KMI v Immigration Services Commissioner [2013] UKUT 520 (AAC)

UKUT-AAC

KMI v Immigration Services Commissioner

[2013] UKUT 520 (AAC) · 2013-10-17

[1]This is an appeal, brought with my permission, against a decision of a First-tier Tribunal (Immigration Services) made on 6 August 2012. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal. (In this decision the bundles before the First-tier Tribunal are identified as RB (Respondent’s Bundle), AB (Appellant’s bundle) and RSB (Respondent’s Supplementary Bundle – provided with closing submissions)). Introduction

[2]The Appellant was born in 1963 and was registered by the Respondent to provide immigration advice and services at Level 3 from 2005, having previously worked for nearly 3 years as a “self-employed consultant” in immigration matters for a firm of solicitors (RB, pp 85, 87).

[3]The FTT’s decision was to dismiss the Appellant’s appeal against a decision made by the Respondent on 13 September 2011, refusing to continue the Appellant’s registration for the period 29 September 2010 to 28 September 2011. As I understand it the Appellant has not since the FTT’s decision been permitted to provide immigration services. The ground for the Respondent’s decision of 13 September 2011 was that she considered that the Appellant was “not fit to continue as a registered adviser because of repeated breaches of the Code of Standards.” By para. 3(5) of Schedule 6 to the Immigration and Asylum Act 1999 “if the Commissioner considers that an applicant for continued registration is no longer competent or is otherwise unfit to provide immigration advice or immigration services, he must cancel the applicant’s registration.”

[4]The FTT held an oral hearing of the appeal on 10 and 11 May 2012, at which the Appellant appeared in person, unrepresented, and the Respondent was represented by Mr Michael Bisgrove of counsel. The Appellant was cross-examined by Mr Bisgrove. The Respondent’s witnesses, Mr Carmody and Mr Birigwa, were cross-examined at length by the Appellant. At the conclusion of the oral evidence, which occurred at shortly before 2 pm on 11 May, the chairman directed that the parties should provide sequential closing submissions in writing, which they did. The members of the Tribunal then reconvened, in private, on 2 July, to consider the appeal further, and a written decision was signed by the chairman on 6 August 2012.

[5]Appeal to the Upper Tribunal lies only on the ground of error of law. I have before me all the documents which were before the FTT. In addition, I have been provided with a recording of the hearing on 10 and 11 May. For reasons explained below I have found it necessary to listen to the entirety of that recording.

[6]Neither party requested an oral hearing of this appeal, and I am content to decide it on the written submissions. I considered it right to provide this decision to the parties in draft, in case the Respondent wished to contend, after obtaining a typed transcript of the hearing, that my references in the draft decision to the oral evidence were materially inaccurate or incomplete. The Respondent did not wish so to contend. The nature of the FTT’s jurisdiction

[7]In para. 4 of its Statement of Reasons the FTT said that the issue in the appeal was “whether the Respondent was entitled to conclude that the Appellant’s application for continued registration should have been refused.” That formulation of the issue was taken verbatim from para. 3 of the written response on behalf of the Respondent to the grounds of appeal to the FTT. It seems to me to be a potentially misleading statement of the FTT’s function on the appeal. It gives the impression that the FTT’s jurisdiction is some sort of review jurisdiction whereby it determines, not whether the Respondent was right to refuse continued registration, but whether the Respondent’s decision to refuse continued registration was one reasonably open to her (“was entitled to conclude that ……..”).

[8]Section 87(1) of the 1999 Act provides simply that “any person aggrieved by a relevant decision of the Commissioner may appeal to the FTT against the decision.” In my judgment that means that the appeal is 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. But it would be perfectly possible, for example, for an appellant to appeal on the basis that he accepts all the Respondent’s findings as to past events, but nevertheless contends that he is competent and fit, so that continued registration ought not to have been refused. The Tribunal would then in my judgment be bound to determine whether in its opinion the appellant was not competent or otherwise unfit, and not simply whether the Respondent’s decision was one reasonably open to her.

[9]Reading the Statement of Reasons as a whole, however, I do not think that the way in which the issue was stated in para. 4 of the Statement of Reasons indicates that the FTT misunderstood its task. In summarising the outcome at the end of para. 37 it said:

“On the evidence at this hearing we are satisfied that the Appellant failed to establish that the Respondent’s assessment of his competence was wrong. Further we are satisfied that the Appellant was not competent in all the circumstances.”

It seems to me clear that the FTT did determine for itself whether the Appellant was competent to give immigration advice and provide immigration services. The Appellant’s procedural unfairness objection

[10]The Appellant’s first ground of appeal is that there was procedural unfairness in that the Tribunal did not, after receipt of the written closing submissions following the hearing, reconvene for further oral submissions. The chairman, in refusing permission to appeal, stated that the Tribunal did not indicate that there would be the opportunity for further oral submissions, but merely that the Tribunal members would reconvene in order to deliberate and consider the written submissions. Having listened to the chairman’s closing remarks and directions at the end of the hearing on 11 May 2012, it is clear to me that what he said in refusing permission to appeal was correct. The chairman expressly said that the tribunal members would reconvene to decide the case on the papers. This ground of appeal therefore does not succeed. The structure of the Respondent’s decision letter and of the Statement of Reasons

[11]The Respondent’s decision of 13 September 2011 which was under appeal to the FTT was communicated in a letter of that date (“the decision letter”) which extended to 10 pages, and set out the reasons in considerable detail. It referred to “audits” which had been carried out by the Respondent on 31 July 2008, 26 January 2010 and 14 February 2011. Looking at the matter very broadly for the moment, the letter recited that at the 2008 and 2010 audits unsatisfactory features of the Appellant’s immigration practice, in particular in relation to the lack of recording of instructions received and advice given by the Appellant, had been identified and then notified to the Appellant in writing. The letter noted that undertakings to remedy the deficiencies had been given by the Appellant, but that the 2011 audit revealed that the failures had continued.

[12]On page 2 of the decision letter there is a heading “Matters taken into account by the Commissioner”, under which there are 4 bullet points. Then on the last page, under the heading “Conclusion”, it is stated that “the following factors have been taken into account when refusing this application for continued registration.” That is again followed by 4 bullet points. Somewhat strangely perhaps, these two sets of bullet points are not identical. The substance of the first set of bullet points is in effect included in the second set, but the second set includes an additional point, namely that the Appellant failed to inform the Respondent of his arrest on immigration related offences in 2009.

[13]The FTT’s Statement of Reasons referred in para. 7 to the submission on behalf of the Respondent (in para. 6 of Mr Bisgrove’s closing submissions) that her decision had been taken for 3 main reasons. The Statement of Reasons then follows those closing submissions in proceeding to examine the merits of each of those 3 reasons in turn. Much of the Statement of Reasons copies those closing submissions word for word. Those 3 reasons had in effect been incorporated in the first and third of the second set of bullet points in the decision letter. (1) Complaint C5804

[14]The first of the 3 reasons was based on the Respondent’s determination, on 7 December 2010, of a complaint (C5804) against the Appellant.

[15]By para. 5(1) of Schedule 5 to the 1999 Act the Respondent was required to establish a complaints scheme. By para. 5(4) the Respondent may on her own initiative investigate any matter which she would have had power to investigate on a complaint made under the scheme, and, by para. 5(5), in investigating any such matter on her own initiative the Respondent must proceed as if her investigation were being conducted in response to a complaint made under the scheme.

[16]Para. 9(1) of Schedule 5 sets out the options available to the Respondent on determining a complaint. These include laying before the FTT “a disciplinary charge” against a relevant person (as to which s.89 of the 1999 Act makes further provision in the event of such a charge being upheld). The option which the Respondent selected in this case was that in para.

(a) :

“On determining a complaint under the complaints scheme, the Commissioner may – (a) if the person to whom the complaint relates is 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;”

[17]By a letter dated 6 September 2010 the Respondent notified the Appellant that she proposed to investigate, by way of complaint, possible breaches of the Code arising out of the facts that on 7 February and 28 March 2008 the Appellant represented a total of 5 individuals at entry clearance appeals at which International English Language Test System certificates were relied upon which were found by the immigration appeal tribunal to have been forged. The letter of 6 September referred to possible breaches of Code 13d (knowingly, recklessly or negligently misleading (inter alios) the AIT, 13e (seeking to abuse any procedure operating in the UK in connection with immigration or asylum) and 20 (“an adviser must not act in a reckless or negligent manner”).

[18]The AIT which sat on 7 February 2008 found the IELTS certificates which were relied upon in the two appeals heard on that day to have “a number of obvious and substantial errors” on them, such as misspellings and typos which were unlikely on the part of an organisation purporting to test competence in English. The AIT which sat on 28 March 2008 found that the certificates relied upon in the three appeals heard on that day purported to certify that the language test had been passed on a date on which the UKBA, on checking with the British Council, discovered that no test had taken place at the relevant test centre.

[19]In her letter of 7 December 2010 determining the Complaint the Respondent found herself unable to determine whether Codes 13d and 13e (which she considered required proof of “deception and abuse”) had been breached. However, she did find that there had been breaches of Code 20. The relevant part of the determination letter (RB 416-7) was as follows:

“As stated above, [the Appellant] has admitted that he did not take the trouble to check fully the contents of his submissions to the AIT. He informed the Commissioner that he checked over his immigration appeal bundle that was put together and photocopied by his administrative staff. In the case of Zahid Mehmood and Sohaib Ahsan, he claims that he failed to notice the glaring discrepancies on the IELTS certificates and looked only at the name of the candidate, the date of birth and the pass mark. The Commissioner finds this admission surprising as it is the responsibility of registered advisers to check carefully all documents relating to a client’s immigration case. [The Appellant] would appear to have treated the client’s case very carelessly and in the process, jeopardised his reputation as a reliable immigration advocate. The Commissioner notes that this carelessness and negligence are brought further into relief by the fact that just seven weeks after [the Appellant] claims not to have checked clients’ IELTS certificates. He admits to have failed to check the certificates again of a further three of his clients and this is all the more serious as recent experience would have appeared to have taught him very little. Furthermore, [the Appellant] admits that he had not checked, nor sought any assurances as to, the credentials and reputation of self-proclaimed “education consultants” who referred clients to him to represent. He would appear to have very little knowledge of the clients and presented their cases “by rote”, making such unsupported claims that the clients had a good command of English, for example, without having spoken to the clients or indeed, without the benefit of evidence to support it. The Commissioner notes, further that [the Appellant] appears unquestioningly to have accepted all documents in favour of the client. As a consequence he appeared to have little regard for the fact that this carelessness would potentially damage seriously his professional reputation. Additionally, [the Appellant] failed to keep any written records of his undertakings with the clients and their agents in Pakistan. He therefore was not able to robustly and convincingly defend himself against accusations of dishonesty, as he failed to evidence the cases in this matter in any meaningful way. In these circumstances, the Commissioner considers therefore that [the Appellant] has on this occasion breached Code 20 of the Commissioner’s Code of Standards.”

[20]The FTT’s Statement of Reasons, after referring briefly to the hearings before the AIT on 7 February and 28 (wrongly stated as 23) March 2008 continued as follows:

“12. The Appellant was interviewed by the Commissioner on 11 November 2010. He stated that he did not check the submissions to the AIT and [had] not checked, or sought any assurances as to, the credentials of the educational consultants who referred clients to him. He had not spoken to the clients themselves at all [see page 416 Bundle 2]. 13. The Appellant had not kept any written records of his dealings with the clients and their agents in Pakistan [see page 417 Bundle 2]. 14. The Commissioner’s concerns were that: (a) the Appellant did not notice glaring errors in the certificates relied on in February 2008; (b) Despite the findings in February 2008 that the certificates relied on were forged, the Appellant took no steps to verify the authenticity of the certificates put forward in March 2008; (c) the Appellant had not sought any assurances as to the source of his instructions and had not spoken to the clients at all; (d) the Appellant had failed to keep a record of his dealings with the clients or their agents in Pakistan. 15. The Respondent argues that these failings show that the Appellant had fallen short of the standards expected from a reasonably competent adviser and the Commissioner determined that the Appellant had been negligent in the preparation and presentation of these cases. 16. The Appellant suggests that the complaint was “hopelessly time barred”

. In fact, the Commissioner argues, there is no limitation period on complaints. The Appellant has not argued otherwise. 17. Having considered the evidence and heard the witnesses, this Tribunal finds that the Respondent was correct to take into account the Complaint C5804 when making the relevant decision to refuse continued registration.”

[21]At the time of giving permission to appeal, I commented as follows:

“ As regards paragraphs 8 to 17 of the Statement of Reasons (relating to Complaint C5804): (a) The FTT’s finding in paragraph 17 of the Statement of Reasons was that “the Respondent was correct to take into account Complaint C5804 when making the relevant decision to refuse continued registration.”

It is unclear whether the FTT considered that its task in relation to the Complaint was to decide afresh whether the Commissioner’s determination of the complaint, in the letter to the Appellant dated 13 September 2011, was correct, or whether it considered that it had some more limited function in relation to the allegations forming the subject matter of the complaint. If the FTT considered that it had some more limited function, it may have been wrong in law in taking that view. (b) If the FTT’s function was to adjudicate afresh on the merits of the complaint, it appears to be arguable that it did not in paragraphs 8 to 17 of the Statement of Reasons sufficiently consider and make findings as to the justifications which the Appellant put forward, in writing and at the hearing, for having handled the 5 cases in the way which he did. As the Appellant points out in his grounds of appeal, with the exception of para. 16 the relevant paragraphs of the Statement of Reasons contain no reference to the explanations which had been put given by the Appellant.

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

[23]That is undoubtedly the case in the sense 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 Respondent 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 Respondent 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 Respondent 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 form the substantial basis of a decision to refuse continued registration.

[24]However, Mr Bisgrove goes on to submit that the FTT in this case did consider that “the Complaint was substantiated”. I think that that is probably the correct interpretation of para. 17 of the Statement of Reasons. The statement that “this Tribunal finds that the Respondent was correct to take into account Complaint C5804 when making the relevant decision to refuse continued registration” would appear to mean that the Tribunal agreed with the findings which the Respondent made in the course of determining the Complaint.

[25]I turn then to point (b) which I referred to in para. 21 above. On the face of it para. 17 of the Statement of Reasons appears unsatisfactory, in that the words “having considered the evidence and heard the witnesses” are wholly unspecific as to precisely what factual issues the FTT thought it was deciding, or precisely why it resolved the issues in the way which it did. If it took the view that the Respondent’s negligence, in relation to the 5 appeals involving the forged IELTS certificates, was established from the documents before it, why was it necessary to refer to the evidence given by the witnesses? What evidence of the witnesses was it referring to? Was it rejecting some of the Appellant’s oral evidence, and if so what evidence and on what ground?

[26]In order to see what was in issue before the FTT it is necessary to examine at least the Appellant’s original grounds of appeal to the FTT (dated 6 October 2011), and his closing written submissions. Paras.(i) to (v) of the grounds of appeal, and the closing submissions under Ground 3, are the ones particularly relevant to Complaint C5804. The Appellant contended, among other things, (i) that he was entitled to rely on the instructions which he had received, which came from “student consultants” abroad, on whose integrity the Appellant had been entitled to rely; he did nothing wrong in simply proceeding on the footing that the certificates were genuine; the defects in the certificates were not blatantly obvious. The clients had confirmed in their own handwriting that they had passed the test.

(ii) (as I interpret one of the comments under “Ground 3” in the Appellant’s closing submissions) that the certificates stated on their face that they could be “verified online” by “recognizing organisations” (the implication presumably being that he could not reasonably have anticipated that they might be forged)

(iii) that there was substantial other evidence in the files as to the clients’ competence in English;

(iv) that the prosecution against him for dishonesty had been dropped;

(v) that the decision of an AIT refusing him indefinite leave to remain by reason partly of his conduct in relation to these 5 appeals had been overturned by the Upper Tribunal

(vi) that the complaint was time barred and

(vii) that after his withdrawal from representation at the hearing on 28 March 2008 he had written on 8 April 2008 to United Link Education Consultant to complain and to ask for the source of the 3 certificates presented at that hearing. As regards the Respondent’s finding that he had failed to keep a record of his dealings with these clients or their agents in Pakistan, the Appellant accepted that (as was also the case with the 4 files which the Respondent had examined at random at the 2008 audit) in general he had not done so, and said that this was because he was instructed via education consultants in Pakistan, and that following the 2008 audit he had agreed to improve his record keeping and had done so.

[27]The Appellant had referred to some of these points in his letter dated 25 September 2010 to the Respondent, in response to the Complaint, and they had to some extent been taken into account in the reasoning for the complaint determination on 7 December 2010. Further, he maintained these points during the course of his cross-examination by Mr Bisgrove, and when putting questions to Mr Carmody (the employee of the Respondent who had dealt with the Complaint).

[28]In my judgment, in the light of the Appellant’s contentions in relation to the Complaint, the FTT was required to decide for itself whether the Appellant’s conduct in relation to these 5 appeals was “reckless or negligent”, in breach of Code 20, and to explain its reasoning sufficiently for the Appellant to be able to understand why his contentions had been rejected. In agreement with the Appellant’s contention in para. 2) of his grounds for this appeal, it seems to me that the Statement of Reasons, and in particular paras. 16 and 17, falls well short of an adequate explanation. The only one of the Appellant’s points which the Statement of Reasons expressly deals with is the reference in para. 16 to the time bar point. It does not seem to me to be self-evident that the Appellant ought to have noticed the defects in the two certificates which were put in evidence in the appeals heard on 7 February 2008, or that he should in all the circumstances have checked the authenticity of the three certificates in evidence for the hearing on 28 March 2008. The fact that the latter certificates stated that the student was “Australia bound” did not so obviously mean that the certificates were suspect that the Tribunal did not need to explain why it found that the Appellant was negligent in not checking them further. It is wholly unclear what aspects of the Appellant’s oral evidence, or that of the two witnesses called on behalf of the Respondent, the FTT was relying on in para. 17 of the Statement of Reasons. I note that the relevant part of Mr Bisgrove’s closing submissions (paras 7 to 15) did not rely on the oral evidence of any of the witnesses. (2) The failure to record advice and instructions

[29]This was the second of the three reasons which were asserted, in the closing submissions on behalf of the Respondent, to have been the main reasons for the decision under appeal to the FTT.

(i) The FTT’s reasoning

[30]In this part of its decision the FTT first set out the terms of Rule 16 of the Respondent’s Rules, and of Codes 7, 11 and 33. Rule 16 and Code 7 require (most materially for present purposes) that an adviser keep clear written records of advice given. Code 11 requires that the client receives a full explanation of the implications of their position and any proposed course of action. The advice and any instructions must be confirmed in writing. Code 33 provides that, having agreed to act for a client, and before undertaking substantive work, the adviser must explain to the client in a “client care letter” what instructions were taken, what advice was given and what action was agreed upon.

[31]The immediately relevant paragraphs of the Statement of Reasons are then as follows:

“24. The Respondent argues that the Appellant’s failure to comply with these Codes and Rules is demonstrated by the audit reports of 2008, 2010 and 2011. The Respondent is concerned not only by the failures themselves, but by the fact that the Appellant has been repeatedly instructed to comply with these obligations and has ignored those instructions. This was in fact demonstrated throughout the hearing of the evidence in this appeal and we shall return to it later. 33. The evidence : The Appellant was sworn and gave evidence before this Tribunal. His reasons for not keeping notes or records were initially that he had not met his clients and that they were abroad. He admitted that the need for written records was brought to his attention at the various audits carried out by the Respondents in 2008, 2010 and 2011 and agreed that he had failed to do so, or otherwise was unable to prove that he had done so, for various reasons. He conceded that he had failed to keep any written record of instructions from or advice to clients even after post audit warnings. On the evidence at the hearing we find that the Respondent was correct to find the Appellant in breach of Rule 16 and Codes 7, 11 and 33. 34. The Tribunal did not find the Appellant to be deliberately dishonest but did find him to be somewhat evasive in providing explanations for his shortcomings and in particular his failure to keep or provide written records. We found him to be frank and forthright in admitting to his failures as alleged and put to him. By way of example we find his reason given for advertising to provide EU advice in that he was under the mistaken impression that Level 3 covered him to do so, is unreasonable and unacceptable. Similarly we do not accept the excuse given, for failing to notify the Respondent of his charge and arrest for criminal offences arising out of his work as an adviser in that he thought that the Respondent knew about these matters. We accept the Respondent’s submissions that the Appellant should have notified the Respondent and we find he was in breach of Code 5. Having heard the evidence of the Appellant on these matters we find as a fact that the Respondent was correct to determine that the Appellant is not fit or competent to provide immigration advice or services and in the making of the relevant decision. 36. The Respondent called the caseworker who gave evidence in support of the Decision of 13 September 2011 and all the issues dealt with in the submissions made on behalf of the Respondent above. [See witness statement at page 897 Bundle 2]. This evidence was comprehensive and convincing. This Tribunal were impressed by the diligence and thoroughness of the case worker and further in the presentation of his evidence to the Tribunal. We noted the Appellants’ comment “ I withdraw this comment about cooking up a case against me.”

This Tribunal acknowledges this concession by the Appellant and find without doubt that the Respondent and the case worker were fair and reasonable at all times in their conduct of the Appellant’s application for continued registration. The cross examination by the Appellant failed to undermine the weight of the arguments that the Appellant is not to be regarded as fit or competent to act as an adviser. 38. The Tribunal attaches significant weight to the Appellant’s lack of documentary evidence records of notes of instructions from and advice to clients.”

[32]Given that the Appellant’s registration had been renewed following the 2008 and 2010 audits, on the basis of undertakings by the Appellant to remedy the breaches of the provisions of the Rules and the Code which I referred to in para. 30 above, the most important files were those examined by the Respondent during the 2011 audit. That was in effect recognised at the hearing.

[33]The documentary evidence relevant to these alleged breaches of the Rules and Code comprised several hundred pages at least, and a substantial part of the one and a half days of oral evidence related to them. The Appellant’s general position in his evidence at the hearing and in submissions was that his record keeping and client contact had much improved after the 2008 audit, and improved further after the 2010 audit. His general position was that in the files examined at the 2011 audit he had kept sufficient notes of instructions received and advice given and that there was nothing wrong with his record keeping by the time of the 2011 audit.

[34]There are a number of aspects of the above paragraphs of the Statement of Reasons which on the face of it, (and to someone who has not got all the details of the evidence in mind) appear unsatisfactory.

[35]The first point is simply that it would appear inherently unlikely that it was possible, in reasoning as short and unspecific as this, to make proper findings on the points at issue.

[36]Secondly, these paragraphs of the Statement of Reasons appear unsatisfactory in that it is not made clear to what extent the reasoning is based on express concessions by the Appellant at the hearing, and to what extent it is based on a finding by the Tribunal, on the basis of the evidence, that inadequate notes and records were kept. The second sentence of para. 33 says, with reference to keeping written records, that the Appellant “agreed that he had failed to do so, or otherwise was unable to prove that he had done so, for various reasons”. It seems to me that that comprises two possibly quite different types of conclusion, one based on simple concession by the Appellant, and one based on him being unable to demonstrate that he had kept records. The Appellant may have been entitled to know in which cases the Tribunal considered him to have actually conceded that there was no or an inadequate record, and in which cases (not conceded by him) it found that he had been unable to demonstrate that sufficient records were kept.

[37]Thirdly, the next sentence of para. 33 says that “he conceded that he had failed to keep any written record of instructions from or advice to clients even after post audit warnings” (my emphasis). That third sentence of para. 33 seems to me to be very possibly inconsistent with the second, in that it bases the conclusion on concession in all cases. Furthermore, in so far as it gives the impression that the Appellant accepted in oral evidence that he had failed to keep any written records in all cases undertaken after the 2008 and 2010 audits, this paragraph is wrong.

[38]Fourthly, the second sentence of para. 33 states that the Appellant in his evidence gave “various reasons” for his failures to keep records, and the first sentence of para. 34 refers to the Appellant giving “explanations for his shortcomings”. Yet there is almost no reference to what those explanations or reasons were. The only mention of a specific reason is in the second sentence of para. 33, where the Tribunal said that his reason was initially that he had not met his clients and that they were abroad. It is unlikely to have been possible to form a view as to the Appellant’s fitness to act as an immigration adviser without giving at least some consideration to whether those reasons provided some sort of excuse. The Appellant may have been entitled to know whether his reasons had been taken into account in determining whether he was unfit to provide immigration services. (I note that Mr Bisgrove may implicitly have accepted that in submitting in para. 56 of his closing submissions that “the Appellant has given no good reason for failing to comply”).

[39]Fifthly, I find the content and structure of para. 34 very strange. The FTT said both that it found the Appellant to be “frank and forthright in admitting to his failures as alleged and as put to him”, and that it found him to be “somewhat evasive in providing explanations for his shortcomings and in particular his failure to keep or provide written records”. It seems to me that he cannot have really have been both those things. Further, having said in the second sentence of para. 34 that the Appellant was frank and forthright in admitting to his failures, the FTT then went on in the next sentence to describe “by way of example” two respects in which it considered his excuses to be unreasonable and unacceptable. That does not really make sense. It seems very possible that the second sentence of para. 34 was inserted or retained owing to some sort of clerical error. It does not really seem to fit with the rest of that paragraph. Next, having said that it found the Appellant to be somewhat evasive in providing explanations for his shortcomings “and in particular his failure to keep or provide written records”, it then went on to refer, apparently “by way of example” to two situations not relating to failure keep or provide records. The result seems to me that no instance of evasiveness in relation to failure to keep or provide written records is given. (ii) The evidence generally

[40]However, I considered that it would have been wrong to decide that these points rendered the FTT’s decision wrong in law without having in mind all the evidence which was before the Tribunal. I have therefore, regrettably, found it necessary to adopt the perhaps unorthodox course of listening to the whole of the recording of the hearing. I have also read the documentary material which was before the FTT, including the parties’ written submissions. My reasons for considering that exercise to be necessary were essentially two. First, if on all the evidence the FTT was undoubtedly correct in saying that there had continued to be a complete failure to comply with these requirements, it might not matter that its reasoning was as general and apparently unsatisfactory as it was. The reasoning may have been sufficient, against the background of the evidence , to explain to the Appellant why the FTT made the findings which it did. Secondly, and in any event, the reasoning relied substantially on concession by the Appellant, which in paras. 30 and 40 of his grounds for this appeal the Appellant denies having made, and I wanted to see to what extent that was correct.

[41]Following the audits in 2008 and 2010 the Respondent, on the basis of a random selection of files, concluded that the Appellant had not kept proper records of instructions received or advice given. After the 2010 audit the Respondent wrote to the Appellant on 11 February 2010 pointing out the shortcomings in detail, to which the Appellant responded on 2 March 2010. On 18 August 2010 the Respondent nevertheless approved the Appellant’s continued registration for the period 30 September 2009 to 29 September 2010. It did so on the basis of undertakings by the Applicant recorded towards the end of the Respondent’s letter of 18 August 2010. On 28 September 2010 the Applicant applied for continued registration for 2010/11.

[42]The next premises audit took place on 14 February 2011, when 8 files were looked at by the caseworker on behalf of the Respondent. The comments of the caseworker (Mr Birigwa), identifying “issues” to do with inadequate recording of advice and instructions in relation to 6 of those files, are attached to Mr Birigwa’s letter to the Appellant at pages 299 to 304 of RB. The Appellant made some detailed comments in relation to that identified issues report in his letter to the Respondent dated 16 March 2011. The Respondent’s decision letter referred particularly, so far as failures identified at the 2011 audit were concerned, to failures in relation to 4 of these files (Suleman, Gekas, Asghar and Begum), and set out detailed reasoning. The Appellant put the entire contents of 3 of these 4 files (Suleman, Asghar and Begum) in evidence before the FTT in his Bundle. (The evidence which he put in that Bundle in relation to the fourth one, Gekas, was unfortunately a file relating to a previous appeal in 2009. This caused considerable confusion at the hearing. As I understand it from listening to the recording of the hearing, the Appellant brought the later file to the second day of the hearing, and the members of the Tribunal and Mr Bisgrove had the opportunity to look through it, but I am not clear what happened to it at the end of the hearing. I have not seen it, so a copy does not appear to have been retained by the FTT). The only other files actually in evidence before the FTT were the 5 files relating to the clients who had produced forged IELTS certificates at hearings much earlier, in early 2008, and which were the subject of the Complaint. These were the only files put in evidence by the Respondent.

[43]In his grounds of appeal to the FTT the Appellant contended in para. vii that ample records of notes were present on the files, which he would produce to the court in the shape of a bundle. In paras. ix, xii and xiii of the grounds of appeal the Appellant specifically contended that he had acted properly in relation to the cases of Gekas, Asghar and Suleman respectively.

[44]The witness statement of Mr Birigwa, the caseworker on behalf of the Respondent, made detailed comments in relation to these 4 files, as did the written closing submissions of Mr Bisgrove on behalf of the Respondent. The Appellant’s written closing submissions under Ground 1 (failure to keep proper records of instructions received and advice given) made some specific comments in relation to Suleman, Asghar and Gekas cases.

[45]I shall consider the position separately in respect of client care letters and the recording of advice and instructions. (iii) Client care letters

[46]The decision letter stated that in 7 of the 8 files reviewed at the 2011 audit the “client care/advice letters did not contain details of the clients’ instructions, advice given, the merits of the case and the implications of their position. The letters were too general and not case specific.” This related to Code 33. In his closing written submissions the Appellant asserted that the form of client care letter, which he had sent in every case, had been approved by the Respondent at the 2008 and 2010 audits, and “the client case is although general but very comprehensive and covers all the main aspects of the case.” His general contention in his closing submissions was therefore that the client care letters were adequate.

[47]As I understand it the Respondent did approve the standard form client care letter. A copy of such a letter is present in each of the 3 files examined at the 2011 audit which are in evidence. However, the wording clearly contemplates that details will be set out of instructions received and the course of action advised. At the 2010 audit the Respondent had objected (RB p.112) that “the current client care letter, with small sections to be completed by hand, is not suitable. [The Appellant] confirmed that he would start to use the client care letter that was saved on to his computer. The client care letter must include detailed information on what instructions were taken, what advice was given and what action was agreed upon with the client.” In his letter in response (RB p.183) the Appellant had confirmed that all that information would be “completed on computer.” However, the client care letters in the 3 files examined at the 2011 audit which are in evidence did not contain details of instructions received and in relation to the advised course of action contained a very general statement such as (in the Begum case):

“I advised you to file appeal for the same and provide all relevant documents so that AIT will satisfy, etc”

. In cross-examination by Mr Bisgrove the Appellant accepted that, despite the warnings and advice which he had received, and the undertakings which he had given, following the 2008 and 2010 audits, the client care letters continued to be generic and non-compliant. However, I note that Code 33 requires that the client care letter must be provided “prior to undertaking substantive work”. I would have thought that in many cases this will mean that in pratice the initial client care letter necessarily cannot contain much, if anything, by way of advice, and very possibly little by way of instructions received.

(a) Gekas

[48]In relation to the Gekas case the Appellant’s explanation in his letter of 16 March 2011 for “the brief notes in this case” was that “as I conducted his previous case [i.e. the 2009 case] and I am keeping the previous file with this file which was presented at the last audit so I am well aware all this case history and all history notes are present in previous file which can be produced. [As noted above, the 2009 file, but not initially the 2010 file, was in fact put in evidence by the Appellant] Now his case is fixed for 18 March for hearing to court and ….. so I am taking notes whenever he visit me and for preparation of appeal presentation and his witness statement is sent to court and a copy is attached.” The appeal, conducted by the Appellant, was in fact successful and the Appellant provided a copy of the appeal decision with his closing submissions. In the decision letter it was stated that the importance of attendance notes was emphasised by the fact that there was no explanation in writing in the file as to why the grounds for the appeal did not contain any explanation as to the reason for the client’s failure to take the IELTS test, a fact on which the immigration decision maker had relied. However, in his letter of 16 March 2011 the Appellant had explained that the IELTS test had not been taken due to the client’s ABE examination and late residence permit (and not because of the client’s sickness, which had occurred on an earlier occasion) which is also referred to in the client’s witness statement, a copy of which was attached to that letter. There was considerable difficulty in questioning the Appellant at the hearing due to the fact that only the 2009 file was initially in evidence. The Appellant contended in evidence at the hearing that his record keeping in relation to the 2010 Gekas file was adequate, for essentially the reasons which he had already set out in writing. Mr Bisgrove’s written closing submissions (paras. 49 and 94-5) essentially repeated the contentions in the Respondent’s decision letter. Mr Bisgrove did not assert that the Appellant had accepted in oral evidence that his instructions and advice were inadequately recorded in the 2010 file.

[49]In my judgment, if the FTT was going to find that the Appellant’s records were inadequate in respect of the Gekas file, it needed to deal with this specifically and to explain why. The generalised comments in paras. 33 and 34 of the Statement of Reasons were quite inadequate to deal with this.

(b) Begum

[50]In relation to the Irshad Begum case the Respondent’s issues identified list following the 2011 audit said that “ …. Despite the client’s case being weak due to issues concerning credibility, the lack of adequate accommodation and the fact that the sponsor’s leave was about to expire, there was no information on the case file to demonstrate that [the Appellant] had explained the implications of [the client’s] position or discussed with [the client] the merits of her case. There were no attendance notes on the case file, no immigration history and no record of the initial instructions. Furthermore the grounds of appeal were brief and lacked detailed and cogent arguments.” Those points were repeated in the Respondent’s decision letter.

[51]The Appellant said in his letter of 16 March 2011 that “very comprehensive notes of client has been taken. The appeal was filed on the instruction of client as it was a family visit appeal and all requirements and documents were explained to the appellant right at the outset which they confirmed to provide. In my attendance notice even sponsor income, relationship is mentioned, copied passport previous visit proof, application form, previous visit were mentioned notes.” In para. xii of his grounds of appeal to the FTT the Appellant said that in the Begum case there was a record that the sponsor was properly advised to produce proof of accommodation. In the Begum file in the Appellant’s bundle there are 2 pages of handwritten attendance notes, and another page of handwritten notes listing items of evidence required.

[52]The Appellant was questioned by Mr Bisgrove at considerable length in relation to the advice which he gave, and the records which he kept, in relation to the Begum case. His evidence was to the effect that he advised the client that if she produced specified items of evidence, she would have a good case, and that he emphasised the importance of getting the evidence. That would appear to be borne out to some extent by the first page of three pages of handwritten attendance notes, headed with the date 22 December 2009, in which it is stated that he “explained and given a list to arrange these (?) documents.” The note goes on to record that certain documents were asked for. There are then short attendance notes of 5 subsequent conversations. In evidence before lunch on 10 May, however, the Appellant accepted that he did not specifically record advice to the effect that if the client produced the required items of information, she would have a good case and he said that this was because the client did not say that she would not be able to provide any of that evidence. However, in the afternoon of that day he stated that he did record advice to the effect that without the documents they would have no prospect of success. He referred to a note of a conversation with the client and the sponsor on 28 June 2010 which stated:

“I have reminded her of importance of all evidence for the appeal hearing.”

He accepted that he had not recorded any instructions from the sponsor in relation to some of the oral evidence which she was recorded in para. 7 of the AIT’s determination as having given to that Tribunal.

[53]It was not asserted by Mr Bisgrove in his closing submissions (paras. 49 and 96-7) that the Appellant had conceded that his record keeping was deficient in this case, although it was asserted that there was no record of the initial instructions taken and no record of advice on merits.

[54]In my judgment, again, if the FTT was going to make findings that the Appellant’s record keeping in relation to the Begum case was deficient, it should have referred to the specifics of the case, and to the precise respects in which it found the record keeping to be deficient, and why.

(c) Suleman

[55]In the decision letter dated 13 September 2011 the Respondent placed particular reliance on the Applicant’s conduct in relation to the Suleman file (which she described as “particularly concerning” (pp.7-8). The Respondent’s conclusion was that the Applicant had knowingly presented in support of the client’s appeal a certificate purporting to evidence a qualification which the AIT had decided in a previous appeal ( NA & Others (Cambridge College of Learning) Pakistan

[2009] UKAIT 00031

that the College in question had never offered. I deal with that particular conclusion further below. For present purposes what matters is that the Respondent’s decision letter stated that the Applicant had said at the 2011 audit that he had advised the client of the problem, but had not recorded that advice. The Appellant’s file contains some handwritten attendance notes, but the Appellant accepted in cross-examination by Mr Bisgrove that he was not able to point to any record of having specifically advised before the AIT hearing of the problem caused by the NA & Others case. He said that his notes did record advice as to the merits of applying for reconsideration after the AIT’s decision (“there is less chances of successs”), but that he had “missed” recording the advice which he gave on the merits prior to the AIT decision.

(d) Asghar

[56]In the Asghar case the client’s appeal had been refused by the AIT on the ground that documents which the client had produced were not genuine. The Appellant acted only in making an application to the FTT, and then the Upper Tribunal, for permission to appeal to the Upper Tribunal on a point of law. There is in the file an initial attendance note dated 10 February 2011 in the Appellant’s handwriting, in which the Appellant recorded that he advised that “this is hopelessly time bar” (the application for permission was out of time), but he accepted in cross-examination that he was not able to point to any record of having advised as to the merits of the application. In fact the FTT Judge extended the time so as to admit the application for consideration, but refused it on the ground that no arguable error of law was shown. The grounds of appeal had merely asserted that the documents which the client had relied upon were not false, as did the grounds of appeal to the Upper Tribunal, and therefore did not even allege any error of law. (3) The competence of the advice

[57]The third main reason, according to Mr Bisgrove’s closing submissions, for the Respondent’s decision not to renew the Appellant’s registration was a failure to give competent advice and to conduct cases competently. However, as I read para. 35 of the Statement of Reasons, the FTT did not find that this was established:

“The Tribunal cannot speculate as to why the Appellant presented so many apparently hopeless cases without evidence in support. The Respondent maintained throughout the hearing that his clients had promised to provide the evidence but it had not materialised. However the record demonstrates that this is a common feature in his work. It is undoubtedly a matter of concern but is not given weight by the Tribunal in the determination of this appeal.”

Knowingly misleading

[58]In its decision letter dated 13 September 2011 the Respondent placed particular reliance on the Applicant’s conduct in relation to the Suleman file (which she described as “particularly concerning” (pp.7-8). As noted above, the Respondent’s conclusion was that the Applicant had knowingly presented in support of the client’s appeal a certificate purporting to evidence a qualification which the AIT had decided in a previous appeal that the College in question had never offered. The Respondent stated that the Appellant had said that he had advised the client of the problem with the certificate, and accepted that he had not recorded giving that advice. The concluding paragraph of the decision letter in respect of this case was as follows:

“By [the Applicant’s] own admission [he] was aware of the Tribunal’s ruling in NA & Others when making the applications, and in doing so, relied on documents that were known to be false. It is the Commissioner’s statutory duty to ensure that those giving immigration advice and immigration services do not knowingly mislead an Immigration Tribunal (section 83(5)(c) of the 1999 Act), and it is a breach of the Code of Standards for an immigration adviser to knowingly mislead the immigration authorities.”

[59]As I understand it it was the events in relation to the Suleman case which provided the basis for the Respondent, in summarising towards the end of the decision letter of 13 September 2011 the matters which it had taken into account, including as the third of the 4 bullet points the following:

“[The Applicant] knowingly misled the immigration authorities and the Immigration Tribunal in 2010 and 2011.”

[60]The Appellant’s evidence at the hearing was that he had been aware of the NA case, and had advised Mr Suleman of it, but that Mr Suleman had neverthless insisted that he had done the course, and that Mr Suleman’s course related to an earlier time than that considered in the NA case. It is notable, however, that in para. 6 of Mr Bisgrove’s closing written submissions (following the oral evidence) to the FTT that particular default was not stated to be one of the 3 main reasons for which the Respondent’s decision had been made. The Suleman case is dealt with in paras. 46-47 and 84-90 of those submissions, where the point that the Applicant had knowingly misled the immigration authorities and tribunal was not relied upon. The point which was made was that the Applicant had not recorded the advice which he said that he had given to the client in relation to the merits of the case.

[61]The FTT did not expressly acknowledge that this very serious finding of knowingly misleading the immigration tribunal, stated in the decision letter to be one of the main reasons for the decision, was apparently no longer relied upon by the Respondent.

[62]In paras. 30 to 32 of his submissions in this appeal, if I understand them correctly, Mr Bisgrove submits that the reference to “knowingly misleading” at the end of the decision letter, if read in the context of the decision letter as a whole, indicates that the Respondent was relying on the Suleman case only as another serious example of a failure to record advice which he had given (in this case advice that the College had been found in another case not to have offered the IT course to which Mr Suleman’s certificate purportedly related). I do not accept that. It is in my view plain that the decision letter proceeded on the basis that the Appellant had sought knowingly to mislead Failure to notify the Respondent of the criminal charge

[63]The fourth bullet point at the end of the Respondent’s decision letter was that the Applicant failed to inform the Respondent of his arrest on immigration related offences in 2009.

[64]That was again not stated in the Respondent’s written closing submissions to be one of the 3 main reasons for which the Respondent had acted, but it was relied upon in paras. 106 and 107 of those submissions. The FTT’s reasoning in paras. 29 and 30 was as follows: “29. The Respondent argues that Code 5 requires advisers to notify the Commissioner of any significant changes to their circumstances. The Appellant did not notify the Respondent that he had been arrested and charged in relation to falsified documents in appeals. The Appellant’s explanation was that he assumed the Respondent would have known, as one of the Respondent’s officers had provided a statement to the Police. In fact, this statement was provided prior to the charge.” 30. In any event, the Respondent argues, it is the duty of the adviser to notify the Respondent, whether or not she has been made aware by another source.

[65]As noted above, the FTT returned to this in para. 34, where it said:

“Similarly we do not accept the excuse given, for failing to notify the Respondent of his charge and arrest for criminal offences arising out of his work as an adviser in that he thought the Respondent knew about these matters. We accept the Respondent’s submissions that the Appellant should have notified the Respondent and we find he was in breach of Code 5.”

[66]That reasoning is in my judgment unsatisfactorily imprecise in that it does not make it clear whether the FTT is accepting that the Appellant did believe that the Respondent did know about the charges. If it was finding that he did not so believe, the breach of Code 5 was clearly a much more serious one than if accepted that he did so believe. It would in effect have involved the Appellant seeking to conceal the charges from the Respondent. Failure to consider downgrading

[67]At the time of giving permission to appeal I considered that it might be arguable that the FTT should have considered whether downgrading the level at which the Appellant was permitted to practise was a sufficient remedy. The Respondent approves advisers to operate at Levels 1 (advice and assistance), Level 2 (casework) or 3 (Advocacy and representation). The Appellant was throughout approved at Level 3.

[68]Schedule 6 to the Immigration and Asylum Act 1999 provides, so far as directly material, as follows:

“2(1) If the Commissioner considers that an applicant for registration is competent and otherwise fit to provide immigration advice and immigration services, he must register the applicant. (2) Registration may be made so as to have effect – (a) only in relation to a specified field of advice or services; (b) only in relation to the provision of advice or services to a specified category of person; (c) only in relation to the provision of advice or services to a member of a specified category of person; or (d) only in specified circumstances. 3(1) At such intervals as the Commissioner may determine, each registered person must submit an application for his registration to be continued. (5) If the Commissioner considers that an applicant for continued registration is no longer competent or is otherwise unfit to provide immigration advice or immigration services, he must cancel the applicant’s registration. (6) Otherwise, the Commissioner must continue the applicant’s registration but may, in doing so, vary the registration – (a) so as to make it have limited effect in any of the ways mentioned in paragraph 2(2); or (b) so as to make it have full effect.”

[69]In his submission in this appeal Mr Bisgrove refers to para. 3(5) and (6) of Schedule 6 and submits as follows:

“Where the Commissioner considers that the applicant is no longer competent or is otherwise unfit, the Commissioner must cancel the registration. There is no other option. It is only where the Commissioner does not consider the applicant to be no longer competent or otherwise unfit that she may consider varying the registration. ………. Where the Commissioner’s decision that the Appellant was either not fit or not competent was correct, the only option available to the Commissioner is to cancel the registration.”

[70]That submission is, with respect, grossly simplistic. Given that, in accordance with para. 2(2) of Schedule 6, the Commissioner approves registration at one of 3 Levels, the question for the Commissioner on an application for continued registration is not necessarily the bald question whether the applicant is competent and fit to provide immigration advice and services. The question may in effect be whether the applicant is competent and fit to provide advice and/or services at the Level for which he is registered, and if not whether (should he wish to be registered at a lower Level) he is competent to be registered to provide advice and/or services at that lower Level. The Respondent’s letter to the Appellant dated 14 October 2008, following the 2008 audit, in effect recognised that when it said that “it is imperative that improvements are made based on the recommendations contained within the report if your organisation is to continue to operate at level 3.” The same will be the case on appeal to the FTT, at any rate if the appellant raises as an issue the possibility of being registered at a lower Level.

[71]Towards the end of his cross-examination of Mr Birigwa the Appellant asked why the option of downgrading to Level 2 or 1 had not been chosen. Mr Birigwa answered, in effect, that the failures which had been identified meant that the Appellant was not fit to provide immigration advice or services at any level.

[72]I am satisfied that in this case the FTT did not go wrong in law in not expressly considering whether the Appellant was fit to provide services at Level 2 or 1. If the Tribunal’s conclusion that the Appellant was not fit to provide advice and services (at Level 3) had not been wrong in law, it would necessarily have followed from the nature of the failures which it identified that the Appellant was equally unfit to provide advice and services at Levels 2 and 1. “Cooking up a case”

[73]In para. 36 of the Statement of Reasons the FTT noted that the Appellant had withdrawn a comment that the Respondent had “cooked up” a case against him. In his grounds for this appeal the Appellant stated that he had not withdrawn that contention. The contention was made during the Appellant’s cross-examination of Mr Birigwa. For the sake of completeness I confirm that, when the chairman pointed out to the Appellant that the Tribunal would need to have evidence of bias against the Appellant in support of such a contention, the Appellant said:

“I withdraw this question.”

Summary of the extent to which the FTT upheld the findings in the decision letter

[74]Of the 4 bullet points at the end of the Respondent’s decision letter, the FTT found the first one substantiated, in so far as it related to a failure to keep written records of instructions received and advice given, but I have concluded that the FTT’s reasoning was in some respects inadequate in relation to that. In so far as the first bullet point also included an allegation of incompetent advice and representation, the FTT found it not to have been established.

[75]The second bullet point (knowingly misleading) the Respondent does not appear to have pursued in terms in its closing submissions, and the FTT’s decision does not refer to it.

[76]As to the third (relating to Complaint C5804), I have concluded that the FTT’s reasoning was again inadequate.

[77]In relation to the fourth, the Tribunal found it to be established, but by reasoning which in my view did not make clear what degree of blame it was attributing to the Appellant’s conduct: see para. 66 above. Conclusions

[78]The fact that the FTT, in finding that the Appellant was not fit and competent to provide immigration advice or services, did not rely on, or find established, some of the major points relied on in the Respondent’s decision letter, does not of course make the FTT’s decision wrong in law. Its task was to decide for itself whether the Appellant was fit and competent to do so.

[79]There is no doubt, on the evidence before the FTT, that there were continued failures, after the 2010 audit, to comply with the provisions of the Rules and Code which I referred to in para. 30 above. I have identified these, as best I can, in paras. 46 to 56 above.

[80]In my judgment, however, the FTT’s decision was wrong in law and must be set aside, for the following reasons.

[81]First, it failed sufficiently to explain why it found that the Appellant had been negligent in relation to the matters dealt with by the Complaint: see paras. 14 to 28 above.

[82]Secondly, as regards the matters which it dealt with under the heading of failure to record advice and instructions:(a) in relation to some of the files considered at the 2011 audit it was necessary to explain, in the light of the evidence, to what extent, and why, the Tribunal found that there were continued breaches of the Rules and Code: see paras. 48 to 54 above. In the absence of such an explanation the Appellant was in my judgment justified in objecting, as he did in paras. 3), 4) and 9) of his grounds for this appeal, that his evidence did not appear to have been properly considered.

(b) The important statement in para. 33 of the Statement of Reasons that “he conceded that he had failed to keep any written record of instructions from or advice to clients even after post audit warnings” is simply wrong.

(c) The defects in the reasoning in para. 34 of the Statement of Reasons which I referred to in para. 39 above seem to me to be significant ones. In particular, it was unsatisfactory that the Appellant’s oral evidence was described as “evasive” (although not “deliberately dishonest”) in relation, particularly, to failure to keep or provide written records, without any instance of such evasiveness being set out. The Appellant’s objection to this in para. 7) of his grounds of appeal was in my judgment therefore justified.

[83]Thirdly, in my judgment it would not be right to uphold the FTT’s decision on the basis of the undoubted continued breaches of the provisions of the Rules and Code which I referred to in para. 79 above. In order to uphold it on that basis I would need to be satisfied that it is sufficiently clear from the Tribunal’s reasoning that it did decide (or perhaps would clearly have decided) that those particular continued breaches, against the background of the failings identified at previous audits, indicated that the Appellant was not competent and fit to provide immigration advice or services. However, I do not in all the circumstances think that that is sufficiently clear. I accept that the Statement of Reasons as a whole, but in particular para. 38, indicates that the Tribunal considered that the lack of recording of advice and instructions was the most significant failing. It was particularly significant in that it rendered it much more difficult to determine whether the Appellant had advised properly in cases which turned out to be hopeless. Had the reasoning in relation to those failings been adequate, I might well have decided that the inadequacy of reasoning in relation to the Complaint did not make the decision wrong in law. But I do not think that I can safely infer from the FTT’s reasoning what its decision was or would have been on the basis that the breaches were limited to those which were conceded by the Appellant or clearly established on the evidence. I remind myself that the composition of the FTT included two members with special expertise and knowledge in relation to the provision of immigration services, expertise and knowledge which I do not have.

[84]It perhaps goes without saying that I set aside the FTT’s decision on these grounds, which concern adequacy of reasoning, with considerable reluctance. As I have said, there was a considerable body of evidence before the FTT, including a day and a half of oral evidence. The FTT’s commendation of the thoroughness of the Respondent’s case officers seems on any view to have been well merited. Mr Bisgrove’s written closing submissions extended to 117 paragraphs. The chairman took considerable pains at the hearing to ensure that it proceeded in a manner which was fair to the Appellant. The result of setting aside the decision will mean that much work may have to be repeated, and that will of course involve considerable expense, which will be unnecessary expense if the outcome is the same, which of course it might well be. Charles Turnbull Judge of the Upper Tribunal 17 October 2013