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Immigration Tribunal can re-open regulator's disciplinary findings

Written by Ben Amunwa, Law mostly, 12 October 2017

Did you know that the Immigration Tribunal can decide on disciplinary charges against rogue legal advisors? (Me neither). But a recent case sheds light on the Tribunal's powers to disagree with the regulator and decide the matter for itself.

This case is about the Immigration Tribunal's little known professional disciplinary functions. It will interest all immigration advisors, many lawyers affected by the regulation of legal services in the UK plus their clients.

As far as I'm aware, immigration is the only practice area that has its own dedicated regulator (in addition to lawyer's supervisory bodies: the SRA and BSB).

This unique (and unenviable) position makes it all the more necessary to have clear and fair procedures in place when an advisor or organisation seeks to challenge adverse decisions against them.

Introduction

In Visa Joy Limited & another v Office of the Immigration Services Commissioner [2017] EWCA Civ 1473, the question for the Court of Appeal was to what extent can a Tribunal take into account matters that were not relied on by the original decision-maker?

There were conflicting Upper Tribunal decisions on the point in the context of appeals against decisions by the OISC on registration of immigration advisors.[1]

Visa Joy resolves that dispute and concludes that the Tribunal can take such matters into account. The important consequence of this is that the Tribunal is therefore not fixed by the factual findings of the OISC's investigations. It is up to Judges to decide for themselves whether the OISC's decisions on registration were right, and whether any previous complaints on which the OISC decision relies are valid.

Background

The OISC regulates the immigration advice sector under section 83 of the Immigration and Asylum Act 1999.

Having previously approved Visa Joy for registration as an immigration advisor, the OISC later refused a later application to continue its registration on the basis that a sister-company ('ImmEmp') run by the same person was not fit or competent to provide immigration advice.

Both companies appealed to the Tribunal, which dismissed their appeals and upheld adverse findings made by the OISC as to the quality of advice, record-keeping and failure to cooperate with the regulator.

In dismissing the appeals, the Tribunal took into account events that post-dated the OISC's decision on registration as well as matters known to the OISC at the time, but not specifically referenced in its decision on registration.

Although in previous cases the OISC had argued that the Tribunal should disregard matters that were not before the regulator at the time of its decision, its argument in Visa Joy was the exact opposite – namely, that the Tribunal could take such matters into account even if they had not been in the mind of the decision maker.

(Unprincipled as that position may be, it's a fairly common scenario. I think most lawyers at least will recognise that these points tend to cut both ways. I've certainly argued on both sides of this equation in other contexts to suit my particular clients at the time).

The Court of Appeal's conclusion

Lord Justice McFarlane giving the lead judgment concludes at § 42 that:

an appeal to the FTT under s 87 is to be a full appeal and not simply a review of the exercise by the Commissioner of his/her decision-making power. It is necessary for the FTT to determine for itself whether the Commissioner's decision was right and to determine (as will normally be the case) whether the applicant is, at the date of the tribunal hearing, fit and competent to provide immigration advice and services.

The judgment continues:

43. In undertaking an appeal under s 87 the tribunal will consider all relevant and admissible evidence, whether or not it was known to, or taken into account by, the Commissioner when making his own decision on the issue of continued registration. In doing so the tribunal will not be bound by decisions made by the Commissioner on past complaints.

Underpinning this approach are the general duties of the regulator as set out in section 83 of the IAA 1999: to promote good practice among immigration advisors and ensure that service providers meet certain professional standard. The general duty is couched in the present tense and is ongoing. The role of the OISC and by extension the Tribunal is one of continual evaluation and assessment (not simply a retrospective review of disciplinary actions and related complaints).

Lastly, at §§ 44 to 45, the Court drew together the powers available to the Tribunal on appeal against a registration decision, which include the ability to:

  • Direct the OISC to register the appellant or make other changes to the register in their favour (ie. to vary any limitations on registered advice or services); and
  • Direct the OISC to quash a complaint decision.

Notes

[1] See KMI v The Immigration Services Commissioner [2013] UKUT 520 (AAC) which decided the Tribunal can consider matters not before the original decision maker and AE v The Immigration Services Commissioner [2015] UKUT 450 (AAC) (which held that the Tribunal cannot). Visa Joy overturns AE.

About the author: Ben Amunwa is a barrister at 36 Bedford Row chambers with a practice focused on immigration, education, employment and housing. He regularly represents clients in immigration and asylum appeals to the First–tier and Upper Tribunals and in judicial review challenges.

This post first appeared on Ben Amunwa’s Law, mostly blog and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN