Khawaja Muhammad Imtiaz t/a KM Imtiaz Law Consultant v OISC

The background to this appeal can be found in the Respondent’s decision letter of the 13^th September 2011.

The Decision was taken for three main reasons according to the Respondent in their submissions as follows:

See 7. (a) above: The Complaint C5804: The details of the Complaint are outlined in a letter dated the 6^th September 2010 [page 384 Bundle 2]. The statement of complaint alleged breaches of Code 13(d), 13(e) and 20. The Commissioner found that breaches of Code 13(d) and 13(e) were not substantiated. The Breach of Code 20 was substantiated [see page 413 Bundle 2].

Code 20 states: - “An adviser must not act in a reckless or negligent manner”.

On the 7^th February 2008 the Appellant represented two individuals, Mehmood and Ahsan, at their entry clearance appeals. Both individuals relied on International English Language Test System (IELTS) certificates as evidence of their competence in the English Language. The individuals had not relied on these certificates at the time of their initial application for entry clearance. In determining the appeal against Mehmood the Judge stated that there were several significant errors in the certificate and that it was a wholly unreliable document. The Judge found that it was produced to bolster Mehmoods’ case following the adverse finding at their initial application [see page 802 of Bundle 2] . In determining the appeal against Ahsan, the Judge noted that the certificate could have been verified and was not [se page 737 para 13 Bundle 2]. The Judge stated that the certificate contained “a number of obvious and substantial errors” [see Page 738 para 6 Bundle 2]. Both these decisions were promulgated on the 14^th February 2008.

On the 23^rd March 2008 the Appellant represented three individuals at their entry clearance appeals. Again each of the three relied on a false IELTS certificate which had not been presented at their original application. These certificates stated that the applicants were Australia bound [ see pages 461, 574 & 611 Bundle 2]..

The Appellant was interviewed by the Commissioner on the 11^th November 2010. He stated that he did not check the submissions to the AIT and not checked, or sought any assurances as to, the credentials of the educational consultants who referred clients to him. He had not spoken to the clients themselves at all [see page 416 Bundle 2].

The Appellant had not kept any written records of his dealings with the clients and their agents in Pakistan [see page 417 Bundle 2].

The Commissioners concerns were that :

The Respondent argues that these failings show that the Appellant had fallen short of the standards expected from a reasonably competent advisor and the Commissioner determined that the Appellant had been negligent in the preparation and presentation of these cases.

The Appellant suggests that the complaint was “hopelessly time barred”. In fact, the Commissioner argues, there is no limitation period on complaints. The Appellant has not argued otherwise.

Having considered the evidence and heard the witnesses, this Tribunal finds that the Respondent was correct to take into account the Complaint C5804 when making the relevant decision to refuse continued registration

See 7. (b) above: The Failure to record advice and instructions.

The Respondent argues that the Appellant was in breach of a number of Rules and Codes as referred to at Paragraph 3 above. The recording of advice and instructions, and the communications of that advice to the client are governed principally by Rule 16, Code 7, Code 11 and Code 33.

Rule 16 states: “A registered adviser must keep clear written records of all advice given, all work done, all transactions made on behalf of each of their clients and all fees paid by each client ----“.

Code 7 states: “An adviser must keep a clear written record of all advice given, all work done, all transactions made on behalf of each client and all fees paid by each client, where fees are taken. Such records should be available for inspection by the Commissioner.”

Code 11 states: An adviser must ensure that the client receives a full explanation, using an interpreter to explain if necessary, the implications of their position and any proposed course of action. The advice and any instructions must be confirmed in writing.”.

Code 33 states: “Having agreed to act for the client and prior to undertaking substantive work, an adviser must explain to the client in a client care letter the following: Details of the services and the individual advisers responsibilities as agreed with the client. These details must make clear what instructions were taken, what advice was given and what action was agreed upon: and a copy of the client care letter must be retained in the client’s file. Advisers must ensure, as far as reasonably practicable, that this copy is signed and dated by the client.”.

The Respondent’s argues that the Appellant’s failure to comply with these Codes and Rules is demonstrated in the audit reports of 2008, 2010 and 2011. The Respondent is concerned not only by the failures themselves, but by the fact that the Appellant has been repeatedly instructed to comply with these obligations and has ignored those instructions. This was in fact demonstrated throughout the hearing of the evidence in this appeal and we shall return to it later.

See 7. (c) above: The Competence of the Advice: The Respondent further argues that the failure to maintain written records makes it difficult to assess the Competence of the Appellants advice directly. She argues however that there is a substantial body of indirect evidence which demonstrates that the Appellant has not conducted his cases with a suitable level of competence.

The principal Codes addressing competence are 4, 17 and 18.

The Respondent argues that the Appellants lack of competence is demonstrated in the evidence of the grounds submitted on behalf of the clients and in the determinations promulgated by the AIT. The Respondent also relies on the various Audits carried out by their caseworkers and demonstrated through the evidence at the hearing of this appeal to which we shall refer later.

The Respondent demonstrates further concerns, inter-alia:

Te Respondent argues Code 5 requires advisers to notify the Commissioner of any significant changes to their circumstances. The Appellant did not notify the Respondent that he had been arrested and charged in relation to falsified documents in appeals.. The Appellants explanation was that he assumed the Respondent would have known, as one of the Respondents’ officers had provided a statement to the Police. In fact, this statement was provided prior to the charge.

In any event, the Respondent argues, it is the duty of the adviser to notify the Respondent, whether or not she has been made aware by another source.

In the audit of 2011, it was noticed that the Appellant had a sign listing EU applications as one of the services offered. The fee scale also included EU applications. This was not a category of work that the Appellant was entitled to carry out. The Appellant stated in evidence that he did not know that he could not do this work. However, the limits of his registration are made plain by the letter granting him registration [see page 189 Bundle 2] and his certificate [page 194 Bundle 2].

Following the audit of 2011 it was discovered that the Appellant had acted in 102 student nurse appeals against decisions to refuse entry clearance [see page 342 Bundle 2]. The Appellant explained that these were refused because clients failed to fulfil the requirements of paragraph 57 of the immigrations rules [see page 369 Bundle 2]. The fact that such a large number of applications were all refused, the Respondent argues, casts further doubt on the advice given by the Appellant and the competence of his representation.

The Evidence: The Appellant was sworn and gave evidence before this Tribunal. His reasons for not keeping notes or records were initially that he had not met his clients and that they were abroad. He admitted that the need for written records was brought to his attention at the various audits carried out by the Respondents in 2008, 2010 and 2011 and agreed that he had failed to do so, or otherwise was unable to prove that he had done so, for various reasons. He conceded that he had failed to keep any written record of instructions from or advice to clients even after post audit warnings. On the evidence at hearing we find the Respondent was correct to find the Appellant in breach of Rule 16 and Codes 7, 11 and 33.

The Tribunal did not find the Appellant to be deliberately dishonest but did find him to be somewhat evasive in providing explanations for his shortcomings and in particular his failure to keep or provide written records. We found him to be frank and forthright in admitting to his failures as alleged and as put to him. By way of example we find his reason given for advertising to provide EU advice in that he was under the mistaken impression that Level 3 covered him to do so, is unreasonable and unacceptable. Similarly we do not accept the excuse given, for failing to notify the Respondent of his charge and arrest for criminal offences arising out of his work as an adviser in that he thought the Respondent knew about these matters. We accept the Respondents submissions that the Appellant should have notified the Respondent and we find he was in breach of Code 5. Having heard the evidence of the Appellant on these matters we find as a fact that the Respondent was correct to determine that the Appellant is not fit or competent to provide immigration advice or services and in the making the relevant decision.

The Tribunal cannot speculate as to why the Appellant presented so many apparently hopeless cases without evidence in support. The Respondent maintained throughout the hearing that his clients had promised to provide the evidence but it had not materialised. However the record demonstrates that this is a common feature in his work. It is undoubtedly a matter for concern but is not given weight by the Tribunal in the determination of this appeal.

The Respondent called the caseworker who gave evidence in support of the Decision of the 13^th September 2011 and all the issues dealt with in the submissions made on behalf of the Respondent above.. [see witness statement at page 897 Bundle 2]. This evidence was comprehensive and convincing. This Tribunal were impressed by the diligence and thoroughness of the case worker and further in the presentation of his evidence to the Tribunal. We noted the Appellants’ comment “I withdraw this comment about cooking up a case against me”. This Tribunal acknowledge this concession by the Appellant and find without doubt that the Respondent and the caseworker were fair and reasonable at all times in their conduct of the Appellants’ application for continued registration. The cross examination by the Appellant failed to undermine the weight of the arguments that the Appellant is not to be regarded as fit or competent to act as an adviser.

While we recognise the livelihood of the Appellant is at stake, and in light of the submissions made at this hearing 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 at this hearing 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 Tribunal attaches significant weight to the Appellants lack of documentary evidence records of notes of instructions from and advice to clients.

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