Visa Joy Ltd & Anor v Office of the Immigration Services Commissioner

An appeal under sections 87 and 88 of the Immigration and Asylum Act 1999 is a full appeal, not a judicial review. The First-tier Tribunal must decide for itself whether an applicant is fit and competent to provide immigration advice and services, ordinarily by reference to the position at the hearing. It may consider all relevant and admissible evidence, including evidence unavailable to the Commissioner when the decision was made. It is not bound by the Commissioner’s determinations of earlier complaints. Where such a complaint is material to an appeal against a registration decision, the tribunal may reopen and determine it and may direct that the recorded decision be quashed. The inquiry is regulatory and ongoing, rather than a determination of narrowly framed disciplinary charges.

The Office of the Immigration Services Commissioner refused to continue Visa Joy’s registration under the Immigration and Asylum Act 1999. The First-tier Tribunal struck out Visa Joy’s appeal, relying substantially on findings concerning a related company and on further matters raised or established during the proceedings. Upper Tribunal Judge Knowles QC heard appeals concerning both companies and held that the First-tier Tribunal was not confined to material considered by the Commissioner and could revisit complaint findings where relevant. The Upper Tribunal decision is reported at [2015] UKUT 679 (AAC).

The central issue was the scope of a statutory appeal against a registration decision, including whether the tribunal could consider new material and reopen complaints previously determined by the Commissioner.

Appeal dismissed. Lord Justice McFarlane gave the judgment, with Lady Justice Sharp agreeing.

1. The statutory scheme is regulatory. Section 83 of the Immigration and Asylum Act 1999 requires the Commissioner to secure, so far as reasonably practicable, that immigration advisers are fit and competent, act in their clients’ best interests and comply with the other statutory standards. The scheme concerns the continuing maintenance of a fit and competent body of practitioners.
2. An appeal under section 87 is a full appeal, not a review of the Commissioner’s decision. The First-tier Tribunal must determine for itself whether the applicant is fit and competent to provide immigration advice and services, normally as at the date of the hearing. It may consider all relevant and admissible evidence, whether or not the evidence was known to or considered by the Commissioner.
3. The appeal concerns a relevant registration decision, not an individual complaint in isolation. A practitioner has no free-standing appeal against an adverse complaint finding. However, where the Commissioner relies on a complaint determination in an appeal against registration, the tribunal may examine the substance of the complaint and the underlying evidence. If the complaint is material and challenged, the tribunal can, and where necessary must, decide for itself whether the finding is correct.
4. The statutory power to quash a recorded complaint decision confirms that jurisdiction. The contrary approach in AE v The Immigration Services Commissioner [2015] UKUT 450 (AAC) was wrong, was not good law and was not to be followed. The analysis in KMI v The Immigration Services Commissioner [2013] UKUT 520 (AAC) was correct.
5. Authorities concerning narrowly framed disciplinary charges, including Strouthos v London Underground Limited [2004] IRLR 636, had little or no direct relevance to this regulatory assessment.

The decision of Upper Tribunal Judge Knowles QC was upheld and the appeal was dismissed.

• Court of Appeal (Civil Division): Appeal dismissed and the Upper Tribunal’s decision upheld: [2017] EWCA Civ 1473.
• Upper Tribunal (Administrative Appeals Chamber): Upper Tribunal Judge Knowles QC allowed the wider approach to statutory appeals and held that the tribunal could consider later evidence and revisit complaint findings: [2015] UKUT 679 (AAC).
• First-tier Tribunal: Visa Joy’s appeal against refusal of continued registration was struck out.