Braham Pal Singh Gautam t/a Gautam & co v OISC

The background to this appeal can be found in the Respondent’s decision letter of the 20^th June 2013.

The Decision was taken mainly for a poor compliance history according to the Commissioner in her submissions and in particular for repeatedly acting beyond their levels of competence (Code 6, 20) and doing so despite regular warnings

By consent between the parties, the matter was listed for a hearing on the papers on the 24^th September 2013. The Tribunal, conscious of the effect on the Appellants livelihood, have considered the voluminous papers carefully and decided unanimously that the appeal should be dismissed.

On balance we do not accept that the Respondent has made a case against the fitness of the appellant. The Tribunal find that there is insufficient evidence of any deliberate attempt to deceive the authorities or of dishonesty on the part of the Appellant. The Commissioner has referred to a number of points to demonstrate that the appellant was unfit. The most significant of these, referred to in and Indentified Issues Report sent to the Appellant on the 22^nd March 2013 was the existence of leaflets wherein the appellant advertised his services. These included services beyond his level 1 capacity at which he was registered. These leaflets bore the registration number F201100406 a number only assigned to the Appellant on the 19^th January 2012 since which the Appellant was only registered to provide immigration advice and services at level 1. In response the Appellant stated that these were old leaflets and effectively had not been used currently. The Tribunal regard the finding of unfit as significant and find on balance that there is just insufficient evidence that these particular leaflets were in fact used in the manner assumed by the Commissioner.

In relation to Competence however, there is clear and unambiguous evidence that the Appellant is no longer competent as alleged by the Commissioner. Further the Appellant does not specifically deny or otherwise rebut the many examples of acting beyond his level. By way of example of lack of competence, in the decision letter of the 20^th June 2013 sat Para 32 [p20] commenting on the level 3 assessment it states inter-alia: “—You applied immigration Rules for which it was essential that the client’s marriage was subsisting, which it was not, and then suggested that invoking domestic violence might be a useful route to go down. Even though this was not part of the scenario (at that stage of the assessment). This means that given the scenario, the competence required for even level 1 was lacking and Mr. Gautam showed a willingness to exaggerate or invent facts to suit the case” (Our emphasis). The assessment script and the scenario were not included in the hearing bundle provided to the Tribunal. However the Tribunal noted that in the Commissioners’ Assessment Feedbackdated 22^nd March 2013 [p.107] it states: “ –Mr. Gautam also stated that marina could rely upon the law relating to domestic violence. At this stage within the assessment Mr. Gautam had not been advised that there was any issue of domestic violence as part of the Marina scenario. The issue of domestic violence is raised later within the assessment and so was not a point of consideration in the facts so far”.The Tribunal note that during the assessment perhaps he should have addressed his mind to the question at that stage and the facts given up to that stage. As the domestic violence was “raised later within the assessment” and the whole assessment paper was in front of him, he had the benefit of this development in the scenario. On balance it appears that in answering the questions, the Appellant was anxious to assist the client and took into account the facts later in the scenario of the assessment rather than inventing facts. This demonstrates his lack of knowledge and poor exam technique. The Tribunal however do not accept that it has been established that he showed a willingness to exaggerate. If the issue of domestic violence was not in the scenario at all or other facts which were not in the scenario but the Appellant mentioned such matters, then this comment would be justified. However the Tribunal finds that the Appellant failed to apply the law to the facts in the assessment and is not competent in this regard. After careful scrutiny of the records available and the other detailed matters raised by the Commissioner in her decision we are, on balance, unanimously satisfied that the appellant is not competent and on these grounds alone refuse this appeal.

In his reasons for appealing the Appellant sets out some general grounds of appeal arguing for example that the decision is not in accordance with the law, is contrary to his human rights and that the Commissioner has in some way treated the Appellant differently than others, which we take to be an allegation of discrimination by the Commissioner against the Appellant. However the Appellant provides no evidence whatsoever in support any of his grounds of appeal. The Tribunal take most seriously any allegation of discrimination made against the Commissioner and find that the Appellant has failed to provide even the slightest piece of evidence in support of any such allegation. Furthermore the Appellant cites the Race Relations Act 1976 as being engaged in the treatment of him by the Commissioner. It appears that this legislation was repealed by the Equality Act 2010 and this in itself demonstrates to us a lack of preparation and in itself is evidence of poor competence.

While we recognise the livelihood of the Appellant is at stake, we make the following observations on the competence of the Appellant. Immigration advisers fulfil an important role. They are required to deal with vulnerable clients who often do not have experience with the English legal system. The relevant law can be complicated, as can the factual basis of each case. The decision made can have a profound effect on the client’s status in the UK. As a result it is important that advisers are competent and that clients are fully informed. On the evidence before us we are satisfied that the Appellant failed to establish that the Respondents assessment of his competence was wrong. Further we are satisfied that the Appellant was not competent in all the circumstances.

The unanimous decision of the Tribunal was to dismiss the appeal.