Jiang Peng T/a WWLP LLP v OISC

This is an Appeal by WWLP LLP, in the person of Jiang Peng (“the Appellant”), against a Decision of the Immigration Services Commissioner (“the Respondent”), dated 1^st June 2012, granting the Appellant registration as a qualified person to provide immigration advice or immigration services at OISC level 2 (Immigration Only), under Section 84 of the Immigrations and Asylum Act 1999 (“the Act”), and thus effectively refusing the Appellant the registration for which he applied, as a Level 3 adviser.

The Appellant duly appealed against this Decision by Notice of Appeal dated 29^th June 2012.

The Tribunal sat to hear the Appeal on 1^st October 2012.

The Appellant had applied for an adjournment of the hearing, on 25^th September 2012, on the ground that he needed more time to prepare his documents.

The Tribunal, having satisfied itself that the Appellant had received due and fully adequate notice of the hearing, for which all necessary administrative arrangements had then been made, refused that application.

The hearing did proceed on 1^st October 2012. The Appellant was represented by Counsel, and no further application was made on the morning of that day.

Prior to the hearing, the Tribunal had received a Hearing Bundle, containing the Decision Letter, the Notice of Appeal (containing the grounds of Appeal), the Respondent’s Response to the Appeal, and all documentation considered to be relevant to the Appeal, including witness statements of Paul Johnson and Jonathan Gough, employees of the Office of the Immigration Services Commissioner (“OISC”).

On 1^st October 2012, the Tribunal heard a brief opening statement on behalf of the Appellant.

The Appellant gave sworn evidence, and was cross-examined.

Paul Johnson and Jonathan Gough gave sworn evidence for the Respondent. Their witness statements were received by the Tribunal as their evidence-in-chief, and Mr Johnson was cross-examined.

At the conclusion of the evidence on 1^st October 2012, the Tribunal directed that final written submissions were to be furnished to the Tribunal by the parties, by 26^th October 2012.

In response to this Direction the Tribunal duly received the final written submissions of the Appellant and the Respondent.

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

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

Section 84 (1) of the Act provides that no person may provide immigration advice or immigration services unless he is a qualified person.

Section 84 (2) (a) of the Act provides that a person is a qualified person if he is a registered person.

Schedule 6 of the Act requires persons seeking to become a qualified person by registration to make an application for registration to the Immigration Services Commissioner.

Schedule 6 provides also that registration may be made so as to have effect only in relation to a specified field of advice or services.

The Respondent registers applicants to work at Level 1 (the lowest level), Level 2 or Level 3 (the highest level) (the levels refer to the nature and complexity of the immigration advice and immigration services provided by registered advisers).

The Appellant’s application was for registration at Level 3, as the sole immigration adviser for his company, then named as WP Legal Service.

All applicants for registration must demonstrate their competence to provide immigration advice or immigration services at the appropriate level.

Schedule 6 (1) (b) provides that an application for registration must be accompanied by such information and supporting evidence as the Commissioner may from time to time determine.

Schedule 6 (2) provides that, when considering an application for registration, the Commissioner may require the applicant to provide her with such further information or supporting evidence as the Commissioner may reasonably require.

The Appellant is of Chinese origin. In China, he was a qualified advocate, and had, it appears, worked there for some 6 years as a Criminal Prosecutor.

In evidence, he stated that he had a Masters Degree, from the University of Wales, in International Trade Law.

The Appellant was first registered as an Immigration Adviser in June 2010, at Level 1.

Prior to that, he had worked for some three months as an “assistant” in a firm of Solicitors in London, “helping the Solicitor to deal with all types of immigration matters”.

As a Level 1 Adviser, he worked from the date of his first registration until the end of October 2011 for two firms offering immigration advice and services, Inno-Ship International and Empire Alliance Consulting Limited, in London.

On 1^st May 2011 he received accreditation, under the Law Society of England and Wales Immigration and Asylum Accreditation Scheme, as a Level 2 (Senior) Caseworker. He sat a number of examinations to achieve this accreditation, and was awarded a Pass, with a mark of 54%.

His training in the field of immigration consisted of 10 days in-house training with the firm of Inno-ship International, and some 4 months “self study” leading to the taking and passing of the aforesaid examinations in respect of his Law Society Accreditation (hereinafter referred to as “Level 2 IAAS status”).

Applicants to the Respondent for OISC Level 3 registration are normally required to undergo an assessment by way of a two hour written and scenario-based test. Normally, however, those who have achieved Level 2 IAAS status are exempted from this assessment.

In August 2011, Empire Alliance Consulting Limited duly applied for continued registration. That firm then had two immigration advisers, a Mr Taimur Jawed and the Appellant. That application comprised an application for an increase in level of registration in respect of the Appellant’s level of registration, from Level 1 to Level 3.

That application was granted on 1^st November 2011, so that on that date the Appellant became a registered Level 3 adviser, then in the employment of Empire Alliance Consulting Limited.

The Appellant then continued to work, in that capacity for that firm, for some two months.

During that period, he submitted the application for registration which is material to this appeal, that application dated 30^th November 2011, by the firm now known as WWLP LLP, with the Appellant named therein as the sole adviser, for whom registration was sought at Level 3.

In simple terms, the Appellant was endeavouring to set up his own firm to provide immigration advice and immigration services, in which he would be the sole adviser, providing those services at Level 3.

This application was accordingly the application for first registration of this firm, WWLP LLP (“the firm”).

The Decision of the Respondent, dated 1^st June 2012, was to grant registration, authorising the Appellant to provide immigration advice and services, but at Level 2 (Immigration Only).

In effect, it is the Decision of the Respondent to grant registration to the Appellant, as the adviser of WWLP LLP, at Level 2 only, against which the Appellant appeals, in the context of his previous registration as a Level 3 adviser.

In this section of its Decision, the Tribunal simply sets out objectively those facts and events which have been established by the evidence, and will return to those events in a later section, in the context of the issues in the Appeal.

An application to the Respondent for registration is assigned to a caseworker in the Respondent’s employment, who is then responsible for dealing with, assessing and processing the application, and ultimately making a recommendation in respect of the grant or refusal of the application.

In this case, the caseworker who dealt with the application of the Appellant was Mr Paul Johnson (“PJ”).

PJ is a very experienced caseworker, in the context, inter alia, of dealing with applications for registration - he has some 10 years experience, in the course of which he has processed some 500 applications.

More recently, presumably by virtue of his experience and ability, PJ has assigned to him applications for registration which are regarded as not being straight-forward.

The application of the Appellant was assigned to PJ because it was not regarded as a straight-forward application.

Upon enquiry from the Tribunal, PJ stated that it was so regarded because of “intelligence” (unspecified) relating to the Appellant.

PJ proceeded to scrutinise and assess the application.

On the face of the application, he identified matters which appeared to him to be matters of concern, in respect of the structure of the firm and the nature of its business, and in respect of the nature and degree of the training and experience of the Appellant, and in respect of the quality of the documentation supporting the application.

By reason of these concerns, PJ decided to conduct a pre-registration audit

This took place on 1^st February 2012, on which date PJ visited the Appellant at his home address. This visit had been arranged by letter sent by PJ to the Appellant on 18^th January 2012, in which, inter alia, PJ notified the Appellant that in the course of the visit he may be asked questions relating to immigration in order to help (PJ) verify his knowledge and skills.

In the course of the visit PJ clarified the extent of the Appellant’s relevant training and experience, ascertained the nature of those resources, relating to immigration law and procedures, upon which the Appellant relied, asked the Appellant questions about two leading immigration law cases, “Pankina” and “Zambrano”, and about his knowledge and use of expert evidence.

The results of the audit did not allay the concerns of PJ.

He was not satisfied that the Appellant was competent to provide immigration advice and services at Level 3. He wrote to the Appellant on 3^rd February 2012, summarising the main points of the audit and setting out fully his concerns, in particular as to the Appellant’s knowledge and skills, and inviting the Appellant to review his application and consider whether it might be more appropriate for him to apply for registration as Level 2.

In brief terms, the Appellant subsequently indicated that he would not vary his application, and did not specifically address the concerns about his knowledge and skill, save to state that he had demonstrated “both academically and practically that he was capable of practice at Level 3”, and to refer to his “previous experience and qualifications.” Ultimately, on 1^st March 2012, having been invited to make representations in respect of the concerns about his knowledge and skills, the Appellant indicated orally that he did not wish to make any further representations.

PJ then discussed the application with his acting Team Manager, Jonathan Gough, and, again in brief terms, ultimately it was agreed that the Appellant should be afforded the opportunity to sit the OISC written Level 3 test.

The Appellant did sit that test on a mutually agreed date of 13^th April 2012.

In that test, marked by PJ and re-marked by PJ’s permanent Team Manager, Amy Jupp, the Appellant scored 38% and 36% respectively.

According to OISC policy, any mark below 40% is a fail, and strongly indicative that the person sitting the test and achieving such a mark is not competent at Level 3.

PJ then considered all the circumstances of this application, and submitted a report containing a recommendation that the Appellant be registered at Level 2, in the Immigration Category only, on 17^th April 2012.

That recommendation was subjected to the Respondent’s “upward review” process, and was reviewed by two managers, and a member of the Respondent’s legal team.

The recommendation was accepted, and the Decision Letter was issued on 1^st June 2012.

The Tribunal considers that there are two principal issues in the Appeal.

Firstly, the issue of the fairness of the process leading to the material decision.

Secondly, the issue of whether the conclusion of the Respondent leading to that decision, that the Appellant was not competent to provide immigration advice and services at Level 3, was wrong.

Central to both issues were the facts that the Appellant had achieved Level 2 IAAS status, as aforesaid, and had previously been registered by the Respondent as a Level 3 adviser for Empire Alliance Consulting Limited, as aforesaid.

In essence, it is contended by the Appellant and on his behalf that these facts in themselves were sufficient to justify the granting of this application, and the registration of the Appellant as a Level 3 adviser for WWLP LLP.

It is further contended that the Respondent was wrong and unfair in requiring the Appellant to demonstrate his competence as a Level 3 adviser, in light of the facts set out in paragraph 66 above, and in engaging in the process which led to the course of events set out above, and contended also that aspects of the process itself were unfair.

In respect of the process, the Appellant challenges the fairness of being questioned about immigration law during the pre-registration audit conducted by PJ.

The Appellant further challenges the fairness of being required to sit the OISC Level 3 written test, in that he did not have sufficient time to prepare for that test.

Fundamentally, it is the Appellant’s case that he had demonstrated his competence by achieving his Level 2 IAAS status, and by his previous “Empire Alliance” registration at Level 3, and that the fact and manner of the Respondent’s requirement of a further demonstration of that competence were wrong and unfair, and that he was competent to provide immigration advice and services at Level 3, and that his application for registration at Level 3 should have been granted.

As set out aforesaid, the Appellant’s application was assigned to PJ, whose responsibility it then was to consider, scrutinise, assess and process the application. The reason for this assignment was a decision within OISC that the application was not straightforward. The reason for that decision was “intelligence” which had been received in respect of the Appellant.

The Tribunal did not consider it appropriate or indeed proper to enquire into the nature of the “intelligence”. The Tribunal was however anxious to ascertain whether the substance, if any, of that “intelligence” influenced the manner in which the Respondent, through her officers, assessed and processed the Appellant’s application.

PJ is, again as set out above, a caseworker of very substantial experience. The Tribunal has dealt with a number of cases in which he has been involved. As was demonstrated in this case also, he is a meticulous and rigorous caseworker, with a keen appreciation of those standards which registered advisers are, properly, expected to demonstrate and uphold.

At the end of his evidence, the Tribunal asked PJ, clearly and directly, if the “intelligence”, which had caused the application to be assigned to him, had any bearing or influence on the manner in which he dealt with the application, or upon the nature of his ultimate recommendation as to its disposal, or upon the decision of the Respondent.

PJ stated that the application was dealt with entirely upon its merits, and that the “intelligence” had no bearing or influence upon any of those matters.

Having considered all of the evidence given in this Appeal, the Tribunal has accepted the assurance of PJ in this regard.

Turning to the course of events which occurred between the receipt of the application and the decision of the Respondent, the Tribunal considers that PJ was correct to consider that this application, of WWLP LLP and of Jiang Peng - an application from a new organisation with a sole adviser, fell to be considered afresh and in all its aspects.

The status of the Appellant, as a person who had the Law Society Level 2 IAAS accreditation, and as a person with two months experience as a registered Level 3 adviser with a previous organisation, was but one of those matters which PJ was entitled to consider, in the context of this new application.

PJ directed his attention initially to the quality of the application and the information provided by the accompanying documentation.

He was concerned by an apparent confusion, on the face of the documentation provided with the application, in respect of the structure and ownership of the organisation. Clarification was required in respect of those services which the organisation would seek to provide, and of the activities in which it would engage. A submitted fee scale appeared basic, and omitted charges for expected categories of work. A “client care” letter submitted was not of adequate quality. And he was concerned, principally, by what appeared on the face of that documentation to be a limited amount of training and experience on the part of the Appellant as an adviser, who would, if this application was to be granted, be the sole adviser in a new organisation purporting to provide, at Level 3, immigration advice and services at the highest level and of the most complex nature.

PJ did have regard to the Appellant’s status as a person with the Law Society Level 2 IAAS status, to the fact that a person with that status was normally exempt from sitting the OISC Level 3 written assessment test, and to the Appellant’s previous registration, in November 2011, as a Level 3 adviser for Empire Alliance, and his two months’ employment for that firm at that level, in the Appellant’s own words, “advising immigration case in Level 3”.

However, he had regard also to the fact that the Appellant had, at the time of the making of this application (30^th November 2011), been registered at Level 1 for all but one of his 17 months’ registration, had no OISC record of working under the supervision of any adviser registered at a higher level (supervision arrangements must be notified to OISC by any registered firm purporting to put such arrangements into effect), had provided no specific information in respect of his work as a Level 3 adviser with Empire Alliance (for some 4 weeks only at the time of this application), and in relation to his employment (for 3 months) for John Street Solicitors had said, vaguely and without specificity, “helping the Solicitor to deal with all kinds of immigration matters.

Taking all these matters and concerns into account, PJ decided to carry out a pre-registration audit, to enable him to discuss his queries and concerns with the Appellant in detail, and to reassure himself that the Appellant had the relevant knowledge and skills (to work as a Level 3 adviser).

The Tribunal considers that the decision to carry out the audit was, in all the aforesaid circumstances, and bearing in mind the duty of the Respondent to ensure that the Appellant, in the context of this application, was fit and competent to provide immigration advice and services a Level 3, a fair, reasonable and proper decision.

The central events of the audit, which took place at the Appellant’s home, from which he initially intended to work, were the enquiries of PJ into the Appellant’s knowledge, skills and resources. The Appellant accepted in evidence that he had read and understood the letter from PJ, of 18^th January 2012, which informed the Appellant of the audit and, inter alia of the fact that he “may be asked questions during the course of the visit in order to help (PJ) verify (his) knowledge and skills”, and that he should have available examples of recent immigration work, and reference material and evidence of relevant professional subscriptions.

In the course of the audit, PJ asked the Appellant questions about two leading cases in the field of immigration law, “Pankina” and “Zambrano”. The Tribunal accepts that these are leading cases, of which a competent Level 3 adviser should be aware, and that PJ’s evidence in this respect demonstrated an unacceptable lack of knowledge of these cases on the Appellant’s part.

The Appellant said in evidence that he could not remember what he had said to PJ about these cases, but did not dispute PJ’s account. He accepted that he was confused about the case of “Pankina”, and that he was unfamiliar with the case of “Zambrano”.

Further, PJ stated that the Appellant gave answers to queries from PJ, about the use of expert evidence, which were manifestly unsatisfactory. He had a copy of a 2010 edition of a standard Immigration Law text book, and two other generalist texts, but had no specialist texts and no subscriptions to professional organisations or publications offering regular up-dates on immigration law. He did not demonstrate to PJ, on request, how he used the UK Borders Agency web-site, and said that he “mostly worked from memory”. He did not demonstrate that he would routinely consult the Immigration Rules.

In evidence, the Appellant accepted that, having regard to the course of events during the audit, it was reasonable for PJ to have doubts about his knowledge of immigration law.

Further, PJ established during the audit that, in terms of experience, the Appellant’s work for the firm of Solicitors was mainly interpretation work, with some drafting of witness statements, that any work with the firm of Inno-Ship involving the assisting of higher level advisers had been administrative work, with interpretation and translation, rather than Level 3 work under supervision, and that no examples of his work at Level 3 with Empire Alliance were available, nor were any provided.

Having heard the evidence of the Appellant and PJ about the audit, the Tribunal concludes that it was indeed reasonable for PJ to have considerable misgivings about the competence of the Appellant in respect of the provision of immigration advice and services at Level 3.

Following the audit, PJ wrote to the Appellant summarising his concerns, and inviting the Appellant to review his application, and to consider whether it might be appropriate to apply for registration at Level 2 (immigration only) (during the audit the Appellant said that he had very little experience of dealing with asylum cases and that he did not want to do much asylum work). PJ also asked the Appellant to provide some further documentation, including “inter alia” an example of one of his “client care” letters at Level 3.

The Appellant did provide a further “client care” letter, relating to asylum, and said that it was based on a real case, derived from work with his previous employers, and that it was his own work. In evidence, he conceded that it was not based on a real case, that he had used a name and country in a letter from training material, and had made up the facts set out in the letter submitted to PJ.

Subsequently, the Appellant indicated that he did not wish to vary the terms of his application (ie, that he wished to proceed with his application for Level 3 registration), did not address the concerns of PJ about his knowledge and skills, and ultimately, on 1^st March 2012, indicated that he did not wish to make any further representations about his application.

The Tribunal concludes that, at that stage, PJ justifiably and validly continued to have substantive concerns about the competence of the Appellant.

There followed the sitting, by the Appellant, of the OISC Level 3 assessment by written test on 13^th April 2012.

The Appellant has complained of having been given insufficient time to prepare for the test.

However, having heard all of the evidence relating to this matter, the Tribunal concludes that the Appellant sat the test on a date chosen and agreed by him, a fact which the Appellant confirmed in his evidence.

The Appellant failed the test, which was marked by PJ and re-marked by a senior colleague of PJ. He obtained marks of 38% and 36% respectively, against a Pass mark of 40%.

On the evidence, the Tribunal concludes that no unfairness attended the arranging, sitting and marking of the test, and that the result of the test manifestly failed to demonstrate the necessary competence of the Appellant to provide immigration advice and services at Level 3.

The Tribunal concludes that the Appellant has been fairly treated by the Respondent throughout the process attending the application of the Appellant and the Decision of the Respondent.

In respect of the initial scrutiny of the application which raised concerns as to experience and competence, the decision to proceed to a pre-registration audit which raised further substantive concerns, and the consequent decision to afford the Appellant the opportunity to sit the written test, the Tribunal concludes that these steps in the process were fair, reasonable and fully justified.

The focus of the Appellant in this Appeal has been on the simple contention that, as a person with the Law Society Level 2 IAAS status, normally exempted from sitting the OISC Level 3 test, and as a person already registered with another firm (Empire Alliance) as a Level 3 adviser, he should have been granted, he would say automatically, OISC Level 3 registration as a adviser with this applicant firm (WWP LLP).

The Tribunal concludes that this contention does not have merit. The Tribunal does not speculate as to the reason(s) for the registration of the Appellant as a Level 3 adviser with Empire Alliance, though it would be a simple assumption that the Law Society accreditation may in itself have satisfied another caseworker dealing with an established firm.

The Tribunal concludes that a new application, from a new firm, with one intended adviser working at Level 3, did merit, and indeed required, that fresh scrutiny which it received from PJ, in the light of the responsibility of the Respondent to ensure continuing fitness and competence on the part of her registered advisers.

The Tribunal concludes that the Respondent is correct in her submission that the aforesaid Law Society status was only one of the factors which she was entitled to take into consideration in her assessment of the merits of this new application.

The Tribunal concludes that further enquiry into those merits, in the light of the initial and accumulating concerns in respect of fitness and competence, was fully justified.

The ultimate step in the process - the affording of the opportunity to sit the written test - was fair and reasonable, in the Tribunal’s view, and indeed, to ask a rhetorical question, how at that stage could the Respondent have otherwise satisfied herself as to competence?

Starkly, the Tribunal concludes that the failure of the Appellant to pass the written test demonstrated that he was not then competent to provide immigration advice and services at Level 3.

Simply, the Tribunal concludes that the Decision of the Respondent to grant registration to WWP LLP, and to the Appellant, to provide immigration advice and services at Level 2 (Immigration Only) was not wrong, and was manifestly fair, reasonable and correct.

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