Mohammad Azharuddin T/a Azza Consultancy Services Ltd v OISC

This is an Appeal by Azza Consultancy Services, in the person of Mohammed Azharuddin (“the Appellant”), against a decision of the Immigration Services Commissioner (“the Respondent”), dated 9^th September 2011, refusing the Appellant’s application, made on 1^st July 2011, for continued registration 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 6^th October 2011.

The Tribunal sat to determine the Appeal on 29^th March 2012.

On 29^th March 2012 the Tribunal sat at 10.30 am. The Respondent was represented by Mr Geoff Temme, and four witnesses on behalf of the Respondent were present.

There was no appearance by, or on behalf of, the Appellant. There had not been any application for an adjournment, nor had any message been communicated to the Tribunal.

The Tribunal rose, so that a telephone call could be made to the Appellant’s contact number by the Tribunal’s Manager, Mr Prem Sagoo. There was no response to that telephone call.

The Tribunal satisfied itself that due, timely and proper notice of the hearing had been given to the Appellant.

The Tribunal sat again at 11 am.

The Respondent wished to proceed.

Having satisfied itself as aforesaid that reasonable steps had been taken to notify the Appellant of the hearing, the Tribunal considered that it was in the interests of justice to proceed with the hearing.

The hearing did proceed.

During the hearing, a note was passed to the Tribunal from its Manager. The note was to the effect that he had just taken a call from a Mr “Ahaja” (whose name may well be Khaja - named in the Appellant’s Grounds of Appeal as an employee of the Appellant) who purported to “work part time with Mr Azharuddin”. Mr Khaja had said to Mr Sagoo that the Appellant was “in hospital with his pregnant wife – therefore he is not here” (that is, before the Tribunal).

There was at that point of the proceedings a fire alarm in Victory House, and all occupants vacated the premises.

The “all clear” having been given around midday, there was further communication by telephone, to the Appellant’s office, between Mr Sagoo and Mr Khaja. The latter said, and represented the following to be said on behalf of the Appellant, that “the Appellant would not be here (before the Tribunal) today or tomorrow”, and that it was “OK to decide his Appeal on the papers”. No further reason for his non-appearance was given, nor was any request to adjourn the hearing communicated to the Tribunal.

The consideration of the Tribunal that it had been in the interests of justice to proceed with the hearing was thus confirmed.

The Tribunal resumed, and concluded, the hearing.

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 Grounds of Appeal, the Respondent’s Response to the Notice of Appeal, a letter, dated 16^th February 2012, from the Appellant to the Tribunal, containing “additional points”, with an annexed bundle of documents (which letter and documents were received in response to a Direction of the Tribunal dated 24^th November 2011), and relevant documentation provided by the Respondent, including witness statements of Jeremy Dunn, Nicki Landymore, Ehtisham Akram and Claire Kennell.

During the hearing, Mr Dunn, Ms Landymore and Mr Akram gave sworn evidence. Each adopted, as his or her evidence, their witness statements which had previously been furnished to the Tribunal.

Following this evidence, Mr Temme closed his case on behalf of the Respondent.

The Tribunal has considered fully the evidence given on behalf of the Respondent, and all of the documents furnished by the Respondent, and all of those documents furnished by the Appellant, including his detailed Grounds of Appeal.

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 in connection with immigration or asylum; (e) do not advise any person to do anything which would amount to such an abuse.

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

The evidence presented to the Tribunal on behalf of the Respondent, orally and in documentary form, is said by the Respondent to establish the following facts:

At all material times the Appellant (the sole adviser for Azza Consultancy Services) was registered to provide immigration advice or immigration services at OISC Level 1 (Initial Advice).

On 28^th June 2011 the Respondent determined a complaint against the Appellant. The complaint was made by Ehtisham Akram. Having investigated that complaint (the investigation was carried out on the Respondent’s behalf by the witness Jeremy Dunn), the Respondent determined that the Appellant had worked above his registered level by doing appeal work for Mr Akram (that is, work at OISC Level 3), and had knowingly misled the Commissioner, by omitting relevant material from Mr Akram’s case file in submitting that file to the Commissioner, and by falsely representing that a third person had acted for Mr Akram without the Respondent’s knowledge. These matters represented substantive breaches of Codes 6 and 13(d) respectively of the Commissioner’s Code of Standards, which the Appellant, as a registered person under Section 84 (2) (a) of the act was required to meet (Paragraph 3 (1) to (4) of Schedule 5 of the Act). These matters also constituted breaches of Codes 4 and 13 (b) of the Code.

Mr Akram, in his evidence to the Tribunal, confirmed that he had dealt only with the Appellant in person, who had indeed submitted his appeal (against a refusal of an extension of his student visa), and thus confirmed to the Tribunal those breaches of Code 6 and Code 13(d).

On 6^th April 2011 the Respondent had caused an audit to be carried out at the Appellant’s premises. That audit was conducted by Nicki Landymore, the Respondent’s Caseworker assigned to the Appellant. Concerns had arisen on the part of the Respondent that the Appellant had been working above the Level of his registration. The audit identified issues in that regard which the Appellant was required to address, by an Identified Issues Report sent to the Appellant on 29^th April 2011. The Appellant was asked to account for a substantive discrepancy between a client list provided by him, and two (significantly larger in numbers) lists of applications, obtained from the United Kingdom Borders Agency, in respect of which the Appellant was named as representative. The UKBA lists raised real concerns that the Appellant had been working above the Level of his Registration. The Appellant was also asked to provide explanations in respect of two client files (Arachilsage and Arvapalli) in respect of which he appeared to have worked above his Level of Registration, and to provide his files in respect of three clients whose names were randomly selected from the UKBA lists of persons represented by the Appellant, and to provide a further client file which had been previously requested.

The Appellant was required to respond to the Identified Issues Report, and to provide the information and documents requested therein, by 17^th May 2011. No response was received. Ms Landymore wrote again, asking for his response, on 24^th May and 21^st June 2011. Again, no response was received.

On 6^th April 2011, the date of the aforesaid audit, the Appellant’s premises were visited by Metropolitan Police Force, and the Appellant’s case files and computers were taken away by police. Ms Landymore was made aware of that fact, and enquired of the Appellant, in her letter of 29^th April 2011 enclosing the Identified Issues Report, as to how the Appellant would be able, in these circumstances, to continue to provide immigration advices and immigration services to his clients. Again, no response to this enquiry was received.

On 1^st July 2011, as aforesaid, the Appellant, still in the absence of any response from him to the Identified Issues Report and to the aforesaid enquiry, applied for continued registration.

Ms Landymore considered that application for continued registration. She took into account the determination of the aforesaid complaint of Mr Akram. She considered that the Appellant had worked above the Level of his registration in the cases of Arachilsage and Arvapalli, and determined, by enquiry from UKBA, that the Appellant had misled her in respect of his representation of Arvapall. She took into account the failure of the Appellant to respond to the Identified Issues Report, and to her enquiry in respect of the police confiscation of client files and computers, and his failure to provide requested files.

On the basis of that consideration, she concluded that the Appellant was no longer fit to provide immigration advices and services, and recommended that his application for continued registration should be refused.

Her recommendation was subjected to the Respondent’s “upward review” procedure, was approved and accepted, and the Respondent decided to refuse the application for continued registration.

That Decision, as aforesaid, was communicated to the Appellant on 9^th September 2011.

The Tribunal finds that the aforesaid evidence does establish those facts set out in paragraphs 24 to 30 above.

The “Grounds of Appeal” document of the Appellant sets out at some length the “Concerns” of the Respondent in respect of his fitness to provide immigration advices and services, and a number of “explanations … for … those concerns”. The document, essentially, seeks to allay those concerns.

The Appellant did not, as set out above, appear before the Tribunal, or give evidence, or make any further submissions beyond the “additional points” made in his letter to the Tribunal of 16^th February 2012, and the only documents provided by the Appellant to the Tribunal are those which accompanied that letter, which do not comprise any of those 4 files, referred to in paragraph 27 above, sought from the Appellant by the Respondent.

The Tribunal finds that neither that letter, couched in general terms, nor those documents add any matter of substance or import to the “Grounds of Appeal”. The Tribunal notes that the Appellant does state in his letter that a “decision was taken in January 2012 not to charge me” – the Tribunal has made no implication from that statement which is adverse to the Appellant’s case.

Essentially, in the absence of any appearance by, or evidence from, the Appellant, those Grounds of Appeal, “additional points” and documents constituted the only materials of the Appellant which were available to the Tribunal to set against the Decision letter, Response to the Notice of Appeal, documents and evidence of the Respondent. Of those materials, the only document of substance was the “Grounds of Appeal”.

The Tribunal finds that, save for one minor matter dealt with below, that document wholly fails to allay the justified concerns of the Respondent, or to provide any satisfactory explanation of those matters which raised those concerns. The principal thrust of the document appears to be criticism of Ms Landymore, and a purported concern on the Appellant’s part that any explanation offered by him would be disregarded by Ms Landymore and the Respondent. Having regard to the evidence, the Tribunal finds that this criticism and that concern are wholly unfounded.

Since the burden of proving the facts on which he relies rests on the Appellant, his failure to prosecute his Appeal beyond its submission, and the submission of those “Grounds of Appeal”, by failing to appear at the hearing of the Appeal and give evidence and/or make submissions to the Tribunal, is in itself determinative of the Appeal.

However, mindful of the “overriding objective” expressed in the Tribunal Procedure (First-Tier) (General Regulatory Chamber) Rules 2009 (Rule 2 (1) ), to deal with cases fairly and justly, and having regard that the Appellant has set some material, however limited, before it, the Tribunal sets out the following findings.

This Appeal is not a forum for any appeal against the determination of the complaint of Mr Akram. That determination established that the Appellant was substantively in breach of Codes 6 and 13(d) of the Commissioner’s Code of Standards, by working manifestly above the Level of his registration, and by knowingly misleading the Commissioner. The Tribunal finds those facts to be established.

The Tribunal finds that the complete failure (comprising, inter alia, a failure to provide requested files) of the Appellant to respond satisfactorily or at all to those matters set out in the Identified Issues Report was wholly unjustified.

With regard to the case of Arachilsage, referred to in the evidence of Ms Landymore and in the Decision letter of the Respondent, the Tribunal is greatly assisted by its member, Mr Quayum, who has very considerable expertise in these matters. The “Grounds of Appeal” seems to establish that the continuance of the Appellant in acting for this person may have been due to a delay occasioned by a payment failure, and accordingly that any “overworking” by the Appellant constituted a “technical’ breach of the material Code. The Tribunal has not taken this matter into account.

With regard to the case of Arvapalli, however, the Tribunal finds that the Appellant did work above the Level of his registration, and, moreover, sought to mislead the Respondent in that regard.

With regard to the police confiscation of client files and computers, the Tribunal draws no conclusion adverse to the Appellant as to the merits of that confiscation, but does find that the Respondent was justified in taking into account, in coming to her decision, the Appellant’s failure to respond to the enquiry as to how he would be able to continue in those circumstances to provide immigration services and advice to his clients.

Having regard to these findings, the Tribunal concludes that, cumulatively and overwhelmingly, they fully support and justify the decision of the Respondent to refuse the Appellant’s application, of 1^st July 2011, for continued registration.

Having regard to the aforesaid findings and conclusion, the decision of the Tribunal is to dismiss this Appeal.