Khalid Umar T/a Ukilaw Ltd v OISC

This is an Appeal by Ukilaw Limited, in the person of Mr Khalid Umar (“the Appellant”), against a decision of the Immigration Services Commissioner (“the Respondent”), dated 6^th July 2010, refusing to register the Appellant’s application for registration at Level 3 (all categories except detention), as a qualified person to provide immigration advice or immigration services under Section 84 of the Immigration and Asylum Act 1999 (“the Act”).

The Appellant duly appealed against this decision by Notice of Appeal dated 3^rd August 2010

The Tribunal sat to determine the Appeal on 2^nd and 3^rd December 2010.

The Appellant represented himself (that is, he represented Ukilaw Limited – the latter and Mr Umar are effectively one and the same entity and person, and the application by Ukilaw Limited for registration named Mr Umar as the sole adviser).

The Respondent was represented by Mr Cawcutt, of the Office of the Immigration Services Commissioner.

Prior to the Hearing, the Tribunal had received from the Respondent a Hearing Bundle, containing the Decision Letter, the Notice of Appeal, the Appellant’s detailed Grounds of Appeal, the Respondent’s response to the Notice and Grounds of Appeal, and extensive documentation material to the Appeal. It had received also a Witness Statement of Paul Johnson, a Caseworker in the Office of the Immigration Services Commissioner (“OISC”).

The Appellant had, prior to the Hearing, furnished no documents or statements to the Tribunal. During the Hearing, he furnished to the Tribunal a number of documents. The Tribunal accepted his apology for having failed to furnish these documents at an earlier stage.

The Appellant made an opening statement to the Tribunal, gave evidence, and was cross-examined. At the close of the evidence, he made final submissions.

Evidence was given on behalf of the Respondent by Mr Johnson, who was cross-examined by the Appellant. At the close of the evidence, written final submissions on behalf of the Respondent were furnished to the Tribunal by Mr Cawcutt.

During and after the hearing, and prior to its determination of the Appeal, the Tribunal has considered fully the evidence given on behalf of the Appellant and the Respondent, all of the documents furnished by the Appellant and the Respondent, and the opening and closing submissions made on behalf of the Appellant and the Respondent.

The Tribunal has reminded itself that the statutory principle governing the decision of the Respondent, and the determination of this Appeal, is set out in Section 83 of the Act, which provides, at sub-section (5), that: “The Commissioner must exercise her functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services – (a) are fit and competent to do so; (b) act in the best interests of their clients; (c) do not knowingly mislead any court, adjudicator or tribunal in the United Kingdom; (d) do not seek to abuse any procedure operating in the United Kingdom in connection with immigration or asylum; (e) do not advise any person to do something which would amount to such an abuse.

The Tribunal has reminded itself that the burden of proving, on the balance of probabilities, the facts on which he relies rests on the Appellant.

During the course of the Appeal, three substantive issues arose, in the opinion of the Tribunal.

Firstly, the offences alleged to have been committed by the Appellant in Pakistan in breach of statutory laws of that country concerning emigration and passports, and his dealings with the Pakistani Courts in respect of those alleged offences.

Secondly, the Appellant’s dealings with the Respondent in respect of the application for registration, and of the Respondent’s investigation of the matters which had come to her attention during the consideration of the Appellant’s application for registration by her Office, regarding the Appellant’s previous experience as an immigration adviser, and regarding also his responses to enquiries about the alleged offences.

The first and second issues concerned the fitness of the Appellant to provide immigration advice or immigration services.

Thirdly, the issue of the Appellant’s competence to provide immigration advice or immigration services.

On 8^th February 2008, the Appellant, a citizen and resident of Pakistan, was arrested in that country for alleged offences committed by him in that country under Section 17 of the Emigration Ordinance 1979 and Section 6 of the Passport Act 1974 (Pakistani statutory provisions), specifically, advertising overseas recruitment and emigration services without a licence, and being in wrongful possession of a passport or passports. The first of those alleged offences carries a possible sentence of up to five years imprisonment plus a fine: the second, up to three years imprisonment plus a fine.

Following his arrest, the Appellant was released on bail at a court appearance on 16^th February 2008.

On 25^th March 2008 the Appellant entered the United Kingdom on a Highly Skilled Migrant Visa valid until 10^th March 2010 – an extension application in respect of that Visa was, at the time of the Decision of the Respondent, outstanding.

On 16^th January 2010 a Non Bailable Warrant of Arrest was issued against the Appellant by a Federal Court in Lahore.

There have been further proceedings in the Lahore High Court in respect of these offences, which appear to have commenced in May 2010, and to have resulted in Court Orders dismissing, on 3^rd July 2010, a Petition to quash proceedings in respect of the offences, and dismissing, on 1^st October 2010, an application to dispense with the personal attendance of the Appellant before the trial court, and ultimately (to the date of the Appeal Hearing of this Tribunal) in a Petition to the Supreme Court of Pakistan (issued subsequently to that Order of the Lahore High Court dated 1^st October 2010) seeking leave to appeal against that Order.

The proceedings in Pakistan against the Appellant in respect of the aforesaid alleged offences remained, at the time of the Decision of the Respondent, ongoing and unresolved, and indeed so remained at the time of the Hearing of this Appeal.

The Appellant’s application for registration was received by the Respondent on 3^rd February 2010.

In the “Advisers Details” section of the Application Form, he described himself as an “Immigration Lawyer”.

The Form was accompanied by a Registration Competence Statement and Declaration. The pro forma Competence Statement contained, inter alia, the question: “Do you have any criminal convictions?”, to which question the Appellant, correctly, replied: “No”. The Declaration, signed by the Appellant on 26^th January 2010, comprised, inter alia, a statement that: “I understand that any false statement or deliberate omission in the information I have given could result in the application being refused.”

In two “Competency Statements” the Appellant gave details of his experience in respect of immigration advice and services since April 2008, in the United Kingdom. He had been a registered adviser at OISC Level 1, employed by Parvaz Immigration Services, since August 2008, and purported to have done work also at Level 2 under the supervision of a firm of Solicitors in Portsmouth, and to have liaised for advice and discussion with a Level 3 adviser, the Director of a firm providing immigration advice and services in London.

The Appellant made no mention, in any section of his Application Form, of the alleged offences or proceedings in Pakistan, nor of any experience or employment in connection with immigration prior to April 2008.

Subsequently, in February 2010, in response to a query from Mr Johnson of OISC, the Appellant stated that he had worked as an immigration adviser in Pakistan from 1995 to 2005, and had spent a year in two six-months periods working for an immigration advice firm in Australia. No mention was made by the Appellant at that time of his career or employment between 2005 and 2008.

In a letter of 1^st March 2010, Mr Johnson enquired of the Appellant, inter alia, as to his ownership of an IT business known as “Misworx”. The Appellant replied on 6^th April 2010 that he “sold out that business in February 2008’.

Subsequently again, in June 2010, in response to further queries from Mr Johnson of OISC in respect of a web-site referring to the Appellant as a “consultant to Misworx”, the Appellant stated (in summary) that “Misworx” did work in the immigration consultancy sector in Lahore, Pakistan, that “International Migration Services” was the name of the “immigration advice services wing” of that company, and that he, the Appellant, provided advice on “migration, education and admissions relating to UK, Canada and Australia in liaison with associates (sic) companies.”

The aforesaid alleged offence under Section 17 of the Emigration Ordinance 1979 arises out of the alleged placing of a newspaper advertisement in Pakistan in March 2004, advertising the services of “International Immigration Services” and “Misworx” in connection with “Work Permits/Migration Australia Canada New Zealand and UK”. In a letter to Mr Johnson dated 19^th March 2010, the Appellant stated that: “it was alleged that the company I worked for in Pakistan issued a newspaper advertisement in March 2004”.

Acting on information received, Mr Johnson asked the Appellant on 17^th March 2010 if he had ever been arrested for an immigration-related offence overseas.

The Appellant stated in reply that the offence was not immigration-related, but responded further in a letter to Mr Johnson dated 19^th March 2010, which was accompanied by documentation relating to the alleged offences. The contents of that letter and those documents established the facts concerning the alleged offences set out in paragraph 18 above.

On 23^rd March 2010 the Appellant stated that he had not been formally discharged in respect of the alleged offences, but that his Solicitor was working on this.

On 5^th May 2010, having been asked by Mr Johnson for more information/evidence in connection with his bail and the attempt to have him discharged, the Appellant stated that his Solicitor would be filing papers within the next three days.

On 13^th May 2010, the Appellant stated to Mr Johnson that he had obtained a lawyer this week (the week commencing 10^th May) and had him attested by the Pakistani Embassy, and that a petition would be filed on his behalf. Mr Johnson said that he understood that the Appellant already had a Solicitor, and the Appellant said that he had spoken to a Solicitor but not actually appointed one.

A copy of a “To Whom It May Concern” letter, purported to be made by A D Naseem, Advocate of the Supreme Court of Pakistan, was sent by the Appellant to Mr Johnson on 1^st June 2010, certifying, inter alia, that he, Mr Naseem, had been appointed in May 2010 by the Appellant (in connection with the alleged offences).

On 5^th May 2010 the Appellant had stated to Mr Johnson that “the prosecution had only finished putting their case in January 2010”. On 13^th May 2010 Mr Johnson asked the Appellant what he thought had happened in January, and the Appellant replied that somebody told him that his case was being sent to court. On 1^st June 2010 the Appellant stated that “he was not aware of any proceedings until you (Mr Johnson) informed me in March 2010”.

On 29^th June 2010 the Appellant stated to Mr Johnson that “30^th June was fixed for the hearing of the petition before a judge of the High Court.” No copy of a filed petition was provided to OISC by the Appellant prior to the Respondent’s decision, despite several requests for the provision of the same. The first evidence of the filing of such a petition was provided, on 6^th August 2010, in documents accompanying the Appellant’s Grounds of Appeal.

As set out above, it appears that a petition to quash proceedings in respect of the alleged offences was dismissed on 3^rd July 2010, and that, again as set out above, those proceedings remain ongoing and unresolved.

With regard to competence, the Respondent took the following matters into account: (a) that the Appellant had no UK legal qualifications; (b) that he had no formal training in UK immigration law; (c) that although he had provided some evidence of having done some Level 3 work under supervision at Atherav and Company, Solicitors, most of his experience had been at OISC Level 1; (d) that he had been giving advice on UK immigration matters for less than two years; (e) that he did not perform satisfactorily in his Level 3 assessment.

Having applied for registration at Level 3, as set out above, the Appellant undertook a Level 3 assessment test on 23^rd March 2010. He confirmed on that day that he was fit and well to do the assessment.

His performance in the assessment test was found to be unsatisfactory, and he was informed of that fact by Mr Johnson on 1^st April 2010.

On 8^th April 2010 the Appellant wrote to Mr Johnson complaining of difficulties at the assessment with his laptop computer, and that his performance had been adversely affected by having to write his answers (with a pen).

The Invigilator at the assessment, Gina McCalla, has stated that the Appellant was afforded the option of using an OISC desktop computer, and that he had been afforded also extra time at the end of the assessment because of the difficulties with his laptop. In cross-examination, the Appellant stated that he did not challenge Ms McCalla’s statements.

In his Grounds of Appeal, the Appellant has stated, in relation to competence, that, in addition to the aforesaid computer difficulties, his performance was adversely affected by “upsetting information” conveyed to him by OISC a few days before the assessment (presumably the exchange, set out aforesaid, in relation to arrest for an immigration-related offence), and also by “threatening phone calls” on the day of the assessment. These matters were not mentioned in the Appellant’s aforesaid letter of 8^th April 2010, nor were they mentioned to Mr Johnson in the course of a detailed conversation about the outcome of the assessment between the latter and the Appellant on13th April 2010. In that conversation, the Appellant denied that he had been given the option of using an OISC computer, but said also that he had “no complaints” about the assessment or its outcome, but that he was “just saying” that he would have done better if he had been able to use a computer.

In respect of competence also, the Appellant made available to Mr Johnson examples of his work with Parvaz Immigration Services (there registered at Level 1) and under supervision at Atherav & Company, Solicitors. Mr Johnson examined these examples, found that they raised further concerns in respect of the Appellant’s competence, and found also that four of the eight examples of the work with Parvaz Immigration Services demonstrated that the Appellant had worked above his authorised level.

All of the aforesaid matters were taken into account, in respect of the Respondent’s conclusion that the Appellant was not competent to provide immigration advice or immigration services at Level 3.

It was abundantly clear to the Tribunal, during the Hearing of this Appeal, that the focus and attentions of the Appellant were primarily directed towards the alleged offences in Pakistan and the decision, as he perceived it, that he was, because of those alleged offences, not fit to provide immigration advice or immigration services in the United Kingdom. He said in terms that the issue of fitness was more important than the issue of competence, and spoke of “the moral stigma” which he perceived now attached to him.

He is manifestly convinced that the allegations against him in Pakistan arose out of a mixture of bad faith, corruption, personal vengeance and persecution, and sought so to convince the Tribunal with controlled vehemence and passion.

Essentially, he did not dispute the facts set out above, though he sought to persuade the Tribunal that he had taken and continues to take all possible steps to have the proceedings in Pakistan determined in his favour.

Essentially, also, he asserts that the Respondent was not entitled to take the alleged offences into consideration in arriving at her decision.

In respect of the omission to bring the allegations in Pakistan to the attention of the Respondent at the outset of his application for registration at Level 3, in his letter to Mr Johnson of 19^th March 2010 the Appellant stated: “When I landed at Heathrow on 6^th May 2009 after visiting abroad, I was detained and questioned about this incident (the alleged offences) and then released on T/A. At that time of my interview at Heathrow, I provided the IO with the information he asked for. The matter was kept under investigation by HCUU for over 3 months and on 18 August 2009 a decision was made to re-instate my leave. So, I had reason to believe that this issue is not only already in the knowledge of UKBA, but a thorough enquiry has been conducted into it, as well.”

Further, with regard to fitness and competence, his Grounds of Appeal stated: “My working in the UK at Level 1 with Parvaz Immigration Services and Level 3 work under supervision at a company of Solicitors would be a better measure to judge my fitness and competence under Section 83 (5) of the Act.”

When the offences, alleged to have been committed in Pakistan by the Appellant, and the facts and circumstances surrounding them, came to the knowledge of the Respondent, it was, in the opinion of the Tribunal, entirely proper and reasonable for the Respondent to take those offences, and those facts and circumstances, into consideration in the context of the performance of her statutory duty of securing, so far as is reasonably practicable, that those who provide immigration advice or immigration services are fit to do so, and in the particular context of her consideration of this application of the Appellant for registration. Indeed, she would have been failing in her statutory duty if she had not taken the alleged offences into consideration.

It was not part of her function to seek to come to any judgment about the guilt or innocence of the Appellant in respect of the alleged offences, nor about the substance or validity of the allegations which led to the arrest of the Appellant, because the resolution and determination of the legal proceedings in Pakistan, to which these allegations have given rise, are entirely matters for the courts in Pakistan.

Equally, for the same reason, it is not part of the function of this Tribunal to seek to analyse or appraise the allegations, offences or proceedings in Pakistan, or to come to any such judgment. Indeed, it would be wholly improper for the Tribunal to seek to embark on such an exercise.

That the allegations were made, the offences alleged, the Appellant arrested, and the proceedings commenced, and remain ongoing and unresolved, are however facts which are manifestly relevant to the issue of the fitness of the Appellant in the context of his application for registration.

With regard to the failure of the Appellant to bring those matters to the attention of the Respondent when making his application, the Tribunal does not consider this matter to be determinative of the Appeal. In this context, he was obliged to declare only convictions. Having perceived that these matters had been the subject of an investigation by “the authorities” in 2009 following his detention and questioning at Heathrow (see paragraph 54 above), the argument that he considered that these matters were then within the knowledge of “the authorities” in the United Kingdom is not without some validity. On the other hand, a man of his manifest intelligence must have perceived that the Respondent would have considered those matters to be relevant and worthy of further enquiry, and a series of e-mails furnished to the Tribunal by the Appellant in the course of this Appeal, culminating in an e-mail of 26^th December 2009 (just over a month before his application for registration was made), which appear to relate to an ongoing dispute with a former client in Pakistan, clearly suggest that matters in Pakistan, and legal proceedings there, must have been very present to his mind at that time.

With regard to the responses of the Appellant to enquiries from OISC about the offences, again the Tribunal does not consider this issue determinative of the Appeal, whilst recognising that it was entirely valid for the Respondent to consider the content and nature of those responses in assessing the fitness of the Appellant. There is no doubt that conflicting and inconsistent responses were made by the Appellant, but it did not seem to the Tribunal that these were necessarily made in bad faith.

The Tribunal does consider that it was, at best, disingenuous of the Appellant to fail, at the outset, to inform the Respondent, in the context of his previous experience of immigration matters, of any matter prior to 2008, and in particular of his previous career in Pakistan, and his involvement with “Misworx”. On any basis, that previous career was relevant to his application, and this omission was, in the opinion of the Tribunal, properly taken into account by the Respondent in its consideration of the Appellant’s application.

Two matters are firmly and equally determinative of the Appeal.

Firstly, having regard to the facts of the aforesaid allegations, alleged offences, the arrest of the Appellant, and the legal proceedings in Pakistan, which were at the time of the decision ongoing and unresolved, and so remain, the Tribunal considers that it was not possible for the Respondent to be satisfied, in the context of this application, that the Appellant was fit to provide immigration advice or immigration services in the United Kingdom. It is for the courts in Pakistan, and the Appellant, to resolve and determine these proceedings. Whilst, with regard to substantive charges, carrying possible sentences of imprisonment, and relating to alleged offences concerning “migration” matters, the issue of the guilt or innocence of the Appellant remains unresolved, the decision of the Respondent, that she could not be satisfied in respect of fitness, was wholly justified.

Secondly, having regard to all the material facts surrounding the issue of the competence of the Appellant, again the decision of the Respondent, that she could not be satisfied in respect of competence, was wholly justified.

Having regard to the aforesaid conclusions, the decision of the Tribunal is to dismiss this Appeal.