OISC v Jayesh Patel T/a Yana UK Ltd

The Appellant investigated a complaint from information and film footage passed to her offices from a Sky News Reporter in which the Respondent purportedly provided advice and offered assistance to an undercover reporter in relation to gaining UK residency on the basis of a “sham” marriage.

The Appellant considered the matter under Codes 13 (e) and (f) of the Commissioners’ Codes and Rules which state:

The Appellant concluded, in her determination of complaint, dated 23 August 2010, (“the Determination”) that the Respondent had breached Code 13(f). In particular, the Appellant concluded that the Respondent had:

The Appellant brought charge proceedings against the Respondent in relation to the alleged breach by the Respondent of Code 13(f). It is these charge proceedings that form the subject matter of this Appeal.

The Respondent denied breaching Code 13(f) and contested the allegations set out at paragraph 5(i) to 5(iii) above.

Pursuant to Rule 22 of the Rules the burden of proof was on the Appellant who had to prove to us the facts upon which she relied on the balance of probabilities.

Further, to the extent that the Appellant contended that the Respondent had been guilty of criminal or fraudulent conduct, the burden on the Appellant was proof beyond reasonable doubt. (Footnote: ¹)

This Tribunal is of the view, that the allegations set out at paragraph 5(i) to 5(iii) are allegations that the Respondent is guilty of criminal or fraudulent conduct. On that basis, this Tribunal has applied the criminal burden of proof, i.e. proof beyond reasonable doubt.

The Tribunal attaches significant weight to the Respondent’s lack of previous convictions, the absence of any previous adverse disciplinary findings against the Respondent, and the Respondent’s positive good character as outlined in the three testimonial statements. In particular, in light of the aforementioned, this Tribunal is of the view that (a) it is less likely that he would act in this way, never having done anything like it before and (b) it is less likely that he would lie under oath about the matters, having a previous reputation for honesty and probity.

Secondly, this Tribunal finds that the Respondent’s behaviour, as alleged, is inconsistent with someone intent on abusing the immigration system for monetary gain. On both sets of occasions the undercover reporters went to speak to the Respondent, it was they who brought up the question of a sham marriage. Both times, the Respondent initially continued to suggest other routes to obtaining a visa, or maintained an objection to that course. Both times, it is clear that the Respondent did not in fact do anything to progress the matter after it was initially discussed. In relation to the inquiry by the Appellants’ first witness, the Respondent appears not to have done anything about it for 6 weeks despite being told it was urgent. This Tribunal concludes that this is not the behaviour of a person interested in making profit from a dishonest act in the circumstances of the evidence before us.

In relation to the ‘Shristi’ recordings as referred to at the hearing and based on the evidence before us, the Tribunal finds that the Respondent did nothing about finding a groom after the first meeting and in fact was under the impression that (what he believed to be) a genuine couple were going to marry each other albeit with some reluctance. In the subsequent Shristi recordings the Respondent never indicates that he has found a groom. Instead, he suggests that it is difficult because of a ‘Christmas rush’. This Tribunal finds that a ‘Christmas rush’ is nonsensical when talking about getting married to someone, fraudulently for two years, or otherwise. On that basis, this Tribunal is not satisfied beyond reasonable doubt that the Respondent was being genuine to ‘Shristi’ and (as he was led to believe) her boyfriend, and was in fact attempting to get her to either marry her boyfriend or extend her student visa (both lawful options). The Tribunal attaches significant weight to the fact that the Respondent refused to assist in the creation or use of fraudulent documents such as payslips, even though that was the initial subject of the investigation, and even though it was, repeatedly suggested to him by the undercover reporters.

This Tribunal notes that in both sets of occasions the Respondent is not recorded as stating that the matters the undercover reporters are asking him about are illegal. However, the Tribunal is not satisfied that his failure to do so amounts to a breach of Code 13(f). Code 13(f) prohibits “advising someone to do something which would amount to such abuse of the immigration procedures in the United Kingdom.” The Tribunal finds that mere omission is insufficient to prove a charge under Code 13(f). In this context, the Tribunal had regard to the fact that immigration advisers are frequently in touch with those who have, or may shortly have, unlawful status in this country, or who may initially ask whether they can undertake various steps which might be unlawful. The Tribunal accepts that an adviser must strike a balance in any discussions between needlessly losing a client, and explaining the practical disadvantages of any particular course, and suggesting better alternatives.

The Tribunal had some significant doubts as to the credibility of the Appellant’s witnesses. The Tribunal found the evidence of the two live witnesses, at best, uncertain. At worst, their evidence was contradictory. For example the second witness for the Appellant suggested that he had not portrayed himself as a part of a genuine couple with Shristi. This was in contradiction to the transcript in which, in the opinion of this Tribunal, he did appear to portray himself as part of a genuine couple.

In relation to the Respondent’s statement that he could find a groom for £12,000, the Tribunal is not satisfied that this proves beyond reasonable doubt that the Respondent advised the Appellants’ first witness to abuse the immigration procedures. This is because of the factual context in which the Respondent made that comment, namely, in the context of this witness calling the Respondent in a distressed and emotional state about 100 times in a six week period, asking him to organise a sham marriage. The Respondent’s evidence was that he was concerned about her, inferring that she might harm herself and that he only stated that he could find her a groom for £12,000 to try and dissuade her from that course. This Tribunal is not satisfied beyond reasonable doubt that the Respondent’s evidence in this regard is untruthful.

The Respondent submitted (Footnote: ²) that there is a semantic and logical difference, in the context of a professional adviser, between providing ‘advice’ on an issue, and ‘advising’ someone to do something. The provision of ‘advice’, for example, where the Respondent in the restaurant informs the parties of the legal procedure in relation to obtaining a certificate of approval or a divorce, is very different from ‘advising’ someone actually to enter into a bogus marriage. The provision of information as to how a system works is a factual matter, not involving any necessary mental element of dishonesty or bad faith. ‘Advising someone to do something’ implies a recommendation that a particular course is undertaken, rather than the provision of information. Similarly, ‘advising someone to do something’ by definition incorporates a mental element that the person advising the other intends that the result should in fact be achieved.

This Tribunal accepts the submissions of the Respondent in relation to the distinction between ‘advice’ on an issue and, ‘advising someone to do something, as outlined at paragraph 17 above.

Further, on the evidence, this Tribunal is not satisfied beyond reasonable doubt that the Respondent intended that the immigration procedures should be abused. In particular, the Tribunal is not satisfied beyond reasonable doubt that the Respondent was advising the Appellants’ first witness and the others to enter into a sham marriage.

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