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The First-tier Tribunal can re-open complaints determined by the OISC


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The case of Visa Joy Ltd will be of interest to immigration advisers regulated by the Office of the Immigration Services Commissioner (OISC).

The OISC makes sure that immigration advisers meet certain standards and are “fit and competent” to provide immigration advice and services. It will register as immigration advisers those considered “competent and otherwise fit to provide immigration advice and immigration services” (Schedule 6 of the Immigration and Asylum Act 1999).

The OISC also has the power to cancel a person’s registration if it considers they are no longer competent or are otherwise unfit to provide immigration advice and services. Someone whose registration is cancelled may appeal to the First-tier Tribunal.

The facts of this case are not relevant, except for the fact that the OISC had refused to continue Visa Joy’s registration and Visa Joy had appealed against the decision.

The main issue in the appeal was whether, in an appeal against the OISC, the First-tier Tribunal can take account of matters that were not relied upon by the OISC in its decision.

At the time of the hearing, there was conflicting authority of the Upper Tribunal:

In the case of AE v The Immigration Services Commissioner [2015] UKUT 450, it was held that the tribunal does not have the power to re-open complaints determined by the original decision-maker when dealing with an appeal concerning registration. The contrary conclusion was reached in the earlier case of KMI v The Immigration Services Commissioner [2013] UKUT 520 (AAC) and in the decision under appeal in the present case where it was held that the appeal tribunal may take account of matters other than those taken into account by the Commissioner. [paragraph 1]

The Court of Appeal ruled that the approach taken in AE

is not good law and is not to be followed.

In coming to that conclusion, the Court of Appeal said

The question for the FTT on appeal is whether the appellant is considered to be competent and otherwise fit to provide immigration advice and immigration services. The powers of the FTT under s 87(2) [of the Immigration and Asylum Act 1999] in the event of a successful appeal are to direct the Commissioner either to register the successful appellant or make other alterations to the register or record in his favour. [44]

Although a registered person may not appeal in isolation against an adverse finding made by the OISC on a complaint which is recorded against him under Schedule 5, paragraph 9(1)(a), where, in the course of an appeal against a ‘relevant decision’ (relating to registration) under s 87, the tribunal determines that a complaint should no longer be on the appellant’s record it may direct the Commissioner to quash the complaint decision (s 87(2)(d)). UTJ Knowles was entirely correct in holding that the FTT power to make such a quashing order means that the tribunal must have jurisdiction to re-open the OISC determination on a complaint and consider the underlying evidence. UTJ Turnbull was also right to hold that in the course of an appeal hearing the FTT can (and if it is a ground of appeal, must) decide for itself whether a complaint finding is correct. [45, emphasis added]

Source: Visa Joy Ltd & Anor v Office of the Immigration Services Commissioner [2017] EWCA Civ 1473

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