SCHEDULES

SCHEDULE 5 The Immigration Services Commissioner

Section 83.

Part I Regulatory Functions

The Commissioner’s rules

1

(1)

The Commissioner may make rules regulating any aspect of the professional practice, conduct or discipline of—

(a)

registered persons, and

F1(b)

those acting on behalf of registered persons,

in connection with the provision of immigration advice or immigration services.

(2)

Before making or altering any rules, the Commissioner must consult such persons appearing to him to represent the views of persons engaged in the provision of immigration advice or immigration services as he considers appropriate.

(3)

In determining whether a registered person is competent or otherwise fit to provide immigration advice or immigration services, the Commissioner may take into account any breach of the rules by—

(a)

that person; and

F2(b)

any person acting on behalf of that person.

(4)

The rules may, among other things, make provision requiring the keeping of accounts or the obtaining of indemnity insurance.

2

(1)

The Commissioner’s rules must be made or altered by an instrument in writing.

(2)

Such an instrument must specify that it is made under this Schedule.

(3)

Immediately after such an instrument is made, it must be printed and made available to the public.

(4)

The Commissioner may charge a reasonable fee for providing a person with a copy of the instrument.

(5)

A person is not to be taken to have contravened a rule made by the Commissioner if he shows that at the time of the alleged contravention the instrument containing the rule had not been made available in accordance with this paragraph.

(6)

The production of a printed copy of an instrument purporting to be made by the Commissioner on which is endorsed a certificate signed by an officer of the Commissioner authorised by him for that purpose and stating—

(a)

that the instrument was made by the Commissioner,

(b)

that the copy is a true copy of the instrument, and

(c)

that on a specified date the instrument was made available to the public in accordance with this paragraph,

is evidence (or in Scotland sufficient evidence) of the facts stated in the certificate.

(7)

A certificate purporting to be signed as mentioned in sub-paragraph (6) is to be treated as having been properly signed unless the contrary is shown.

(8)

A person who wishes in any legal proceedings to rely on an instrument containing the Commissioner’s rules may require him to endorse a copy of the instrument with a certificate of the kind mentioned in sub-paragraph (6).

Code of Standards

3

(1)

The Commissioner must prepare and issue a code setting standards of conduct which those to whom the code applies are expected to meet.

(2)

The code is to be known as the Code of Standards but is referred to in this Schedule as “the Code”.

(3)

The Code is to apply to any person providing immigration advice or immigration services other than—

(a)

a person who is authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body;

F3(b)

a person who is acting on behalf of a person who is within paragraph (a);

(c)

a person mentioned in section 84(6).

(4)

It is the duty of any person to whom the Code applies to comply with its provisions in providing immigration advice or immigration services.

(5)

If the Commissioner alters the Code, he must re-issue it.

(6)

Before issuing the Code or altering it, the Commissioner must consult—

(a)

each of the designated professional bodies;

(b)

the designated judges;

(c)

the Lord President of the Court of Session;

(d)

the Lord Chief Justice of Northern Ireland; and

(e)

such other persons appearing to him to represent the views of persons engaged in the provision of immigration advice or immigration services as he considers appropriate.

(7)

The Commissioner must publish the Code in such form and manner as the Secretary of State may direct.

Extension of scope of the Code

4

(1)

The Secretary of State may by order provide for the provisions of the Code, or such provisions of the Code as may be specified by the order, to apply to—

(a)

persons authorised by any designated professional body to practise as a member of the profession whose members are regulated by that body; and

F4(b)

persons acting on behalf of persons who are within paragraph (a).

(2)

If the Secretary of State is proposing to act under sub-paragraph (1) he must, before doing so, consult—

(a)

the Commissioner;

(b)

the Legal Services Ombudsman, if the proposed order would affect a designated professional body in England and Wales;

(c)

the Scottish Legal Services Ombudsman, if the proposed order would affect a designated professional body in Scotland;

(d)

the lay observers appointed under Article 42 of the M1Solicitors (Northern Ireland) Order 1976, if the proposed order would affect a designated professional body in Northern Ireland.

(3)

An order under sub-paragraph (1) requires the approval of—

(a)

the Lord Chancellor, if it affects a designated professional body in England and Wales or Northern Ireland;

(b)

the Scottish Ministers, if it affects a designated professional body in Scotland.

(4)

Before deciding whether or not to give his approval under sub-paragraph (3)(a), the Lord Chancellor must consult—

(a)

the designated judges, if the order affects a designated professional body in England and Wales;

(b)

the Lord Chief Justice of Northern Ireland, if it affects a designated professional body in Northern Ireland.

(5)

Before deciding whether or not to give their approval under sub-paragraph (3)(b), the Scottish Ministers must consult the Lord President of the Court of Session.

Investigation of complaints

5

(1)

The Commissioner must establish a scheme (“the complaints scheme”) for the investigation by him of relevant complaints made to him in accordance with the provisions of the scheme.

(2)

Before establishing the scheme or altering it, the Commissioner must consult—

(a)

each of the designated professional bodies; and

(b)

such other persons appearing to him to represent the views of persons engaged in the provision of immigration advice or immigration services as he considers appropriate.

(3)

A complaint is a relevant complaint if it relates to—

(a)

the competence or fitness of a person to provide immigration advice or immigration services,

(b)

the competence or fitness of a person F5acting on behalf of a person providing immigration advice or immigration services,

(c)

an alleged breach of the Code,

(d)

an alleged breach of one or more of the Commissioner’s rules by a person to whom they apply, or

F6(e)

an alleged breach of a rule of a relevant regulatory body,

but not if it relates to a person who is excluded from the application of subsection (1) of section 84 by subsection (6) of that section.

(4)

The Commissioner may, on his own initiative, investigate any matter which he would have power to investigate on a complaint made under the complaints scheme.

(5)

In investigating any such matter on his own initiative, the Commissioner must proceed as if his investigation were being conducted in response to a complaint made under the scheme.

6

(1)

The complaints scheme must provide for a person who is the subject of an investigation under the scheme to be given a reasonable opportunity to make representations to the Commissioner.

(2)

Any person who is the subject of an investigation under the scheme must—

(a)

take such steps as are reasonably required to assist the Commissioner in his investigation; and

(b)

comply with any reasonable requirement imposed on him by the Commissioner.

(3)

If a person fails to comply with sub-paragraph (2)(a) or with a requirement imposed under sub-paragraph (2)(b) the Commissioner may—

(a)

in the case of a registered person, cancel his registration;

(b)

in the case of a person certified by the Commissioner as exempt under section 84(4)(a), withdraw his exemption; or

F7(c)

in any other case, refer the matter to any relevant regulatory body.

Power to enter premises

7

(1)

This paragraph applies if—

(a)

the Commissioner is investigating a complaint under the complaints scheme;

(b)

the complaint falls within paragraph 5(3)(a), (b) F8, (c) or (d); and

(c)

there are reasonable grounds for believing that particular premises are being used in connection with the provision of immigration advice or immigration services by a F9registered or exempt person.

F10(1A)

This paragraph also applies if the Commissioner is investigating a matter under paragraph 5(5) and—

(a)

the matter is of a kind described in paragraph 5(3)(a), (b)F11, (c) or (d) (for which purpose a reference to an allegation shall be treated as a reference to a suspicion of the Commissioner), and

(b)

there are reasonable grounds for believing that particular premises are being used in connection with the provision of immigration advice or immigration services by a F12registered or exempt person.

(2)

The Commissioner, or a member of his staff authorised in writing by him, may enter the premises at reasonable hours.

(3)

Sub-paragraph (2) does not apply to premises to the extent to which they constitute a private residence.

(4)

A person exercising the power given by sub-paragraph (2) (“the investigating officer”) may—

(a)

take with him such equipment as appears to him to be necessary;

(b)

require any person on the premises—

(i)

to produce any document which he considers relates to any matter relevant to the investigation; and

(ii)

if the document is produced, to provide an explanation of it;

(c)

require any person to state, to the best of his knowledge and belief, where any such document is to be found;

(d)

take copies of, or extracts from, any document which is produced;

(e)

require any information which is held in a computer and is accessible from the premises and which the investigating officer considers relates to any matter relevant to the investigation, to be produced in a form—

(i)

in which it can be taken away; and

(ii)

in which it is visible and legible.

(5)

Instead of exercising the power under sub-paragraph (2), the Commissioner may require such person as he may determine (“his agent”) to make a report on the provision of immigration advice or immigration services from the premises.

(6)

If the Commissioner so determines, his agent may exercise the power conferred by sub-paragraph (2) as if he were a member of the Commissioner’s staff appropriately authorised.

(7)

If a registered person fails without reasonable excuse to allow access under sub-paragraph (2) or (6) to any premises under his occupation or control, the Commissioner may cancel his registration.

(8)

The Commissioner may also cancel the registration of a registered person who—

(a)

without reasonable excuse fails to comply with a requirement imposed on him under sub-paragraph (4);

(b)

intentionally delays or obstructs any person exercising functions under this paragraph; or

(c)

fails to take reasonable steps to prevent an employee of his from obstructing any person exercising such functions.

F13(9)

Sub-paragraphs (7) and (8) shall apply to an exempt person as they apply to a registered person, but with a reference to cancellation of registration being treated as a reference to withdrawal of exemption.

(10)

In this paragraph “exempt person” means a person certified by the Commissioner as exempt under section 84(4)(a).

Determination of complaints

8

(1)

On determining a complaint under the complaints scheme, the Commissioner must give his decision in a written statement.

(2)

The statement must include the Commissioner’s reasons for his decision.

(3)

A copy of the statement must be given by the Commissioner to—

(a)

the person who made the complaint; and

(b)

the person who is the subject of the complaint.

9

(1)

On determining a complaint under the complaints scheme, the Commissioner may—

(a)

if the person to whom the complaint relates is a registered person F14or is acting on behalf of a registered person, record the complaint and the decision on it for consideration when that registered person next applies for his registration to be continued;

(b)

if the person to whom the complaint relates is a registered person F15or is acting on behalf of a registered person and the Commissioner considers the matter sufficiently serious to require immediate action, require that registered person to apply for continued registration without delay;

F16(c)

refer the complaint and his decision on it to a relevant regulatory body;

(d)

if the person to whom the complaint relates is certified by the Commissioner as exempt under section 84(4)(a) or is employed by, or working under the supervision of, such a person, consider whether to withdraw that person’s exemption;

(e)

lay before the Tribunal a disciplinary charge against a relevant person.

(2)

Sub-paragraph (3) applies if—

(a)

the Tribunal is considering a disciplinary charge against a relevant person; and

(b)

the Commissioner asks it to exercise its powers under that sub-paragraph.

(3)

The Tribunal may give directions (which are to have effect while it is dealing with the charge)—

F17(a)

imposing restrictions on the provision of immigration advice or immigration services by the relevant person or by a person acting on his behalf or under his supervision;

F17(b)

prohibiting the provision of immigration advice or immigration services by the relevant person or a person acting on his behalf or under his supervision.

(4)

“Relevant person” means a person providing immigration advice or immigration services who is—

(a)

a registered person;

F18(b)

a person acting on behalf of a registered person;

(e)

a person certified by the Commissioner as exempt under section 84(4)(a);

(f)

a person to whom section 84(4)(d) applies; or

(g)

a person employed by, or working under the supervision of, a person to whom paragraph (e) or (f) applies.

Complaints referred to designated professional bodies

10

(1)

This paragraph applies if the Commissioner refers a complaint to a designated professional body under paragraph 9(1)(c).

(2)

The Commissioner may give directions setting a timetable to be followed by the designated professional body—

(a)

in considering the complaint; and

(b)

if appropriate, in taking disciplinary proceedings in connection with the complaint.

(3)

In making his annual report to the Secretary of State under paragraph 21, the Commissioner must take into account any failure of a designated professional body to comply (whether wholly or in part) with directions given to it under this paragraph.

(4)

Sub-paragraph (5) applies if the Commissioner or the Secretary of State considers that a designated professional body has persistently failed to comply with directions given to it under this paragraph.

(5)

The Commissioner must take the failure into account in determining whether to make a report under section 86(9)(b) and the Secretary of State must take it into account in determining whether to make an order under section 86(2).

Part II Commissioner’s Status, Remuneration and Staff etc

Status

11

(1)

The Commissioner is to be a corporation sole.

(2)

The Commissioner and the members of the Commissioner’s staff are not to be regarded as the servants or agents of the Crown or as having any status, privilege or immunity of the Crown.

Period of office

12

(1)

The Commissioner—

(a)

is to hold office for a term of five years; but

(b)

may resign at any time by notice in writing given to the Secretary of State.

(2)

The Secretary of State may dismiss the Commissioner—

(a)

on the ground of incapacity or misconduct; or

(b)

if he is satisfied—

(i)

that he has been convicted of a criminal offence; or

(ii)

that a bankruptcy order has been made against him, or his estate has been sequestrated, or he has made a composition or arrangement with, or granted a trust deed for, his creditors.

(3)

The Commissioner is eligible for re-appointment when his term of office ends.

Terms and conditions of appointment

13

Subject to the provisions of this Schedule, the Commissioner is to hold office on such terms and conditions as the Secretary of State may determine.

Remuneration, expenses and pensions

14

(1)

There is to be paid to the Commissioner such remuneration and expenses as the Secretary of State may determine.

(2)

The Secretary of State may pay, or provide for the payment of, such pensions, allowances or gratuities to or in respect of the Commissioner as he may determine.

Compensation

15

If a person ceases to be the Commissioner, otherwise than when his term of office ends, and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, the Secretary of State may make a payment to him of such amount as the Secretary of State may determine.

Deputy Commissioner

16

(1)

The Secretary of State must appoint a person to act as Deputy Commissioner.

(2)

During any vacancy in the office of Commissioner, or at any time when he is unable to discharge his functions, the Deputy Commissioner may act in his place.

(3)

Paragraphs 11(2) and 12 to 15 apply to the Deputy Commissioner as they apply to the Commissioner.

Staff

17

(1)

Subject to obtaining the approval of the Secretary of State as to numbers and terms and conditions of service, the Commissioner may appoint such staff as he considers appropriate.

(2)

Subject to obtaining the approval of the Secretary of State, the Commissioner may pay, or provide for the payment of, such pensions, allowances or gratuities (including by way of compensation for loss of office or employment) to or in respect of his staff as he considers appropriate.

(3)

Any functions of the Commissioner may, to the extent authorised by him, be performed by the Deputy Commissioner or any of his staff.

(4)

The M2Employers’ Liability (Compulsory Insurance) Act 1969 is not to require insurance to be effected by the Commissioner.

Expenditure

18

The Secretary of State may pay to the Commissioner—

(a)

any expenses incurred or to be incurred by the Commissioner in respect of his staff; and

(b)

with the approval of the Treasury, such other sums for enabling the Commissioner to perform his functions as the Secretary of State thinks fit.

Receipts

19

(1)

Subject to any general or specific directions given to him by the Secretary of State, sums received by the Commissioner in the exercise of his functions must be paid to the Secretary of State.

(2)

Sums received by the Secretary of State under this paragraph must be paid into the Consolidated Fund.

(3)

The approval of the Treasury is required for any direction given under this paragraph.

Accounts and records

20

(1)

The Commissioner must—

(a)

keep proper accounts and proper records in relation to his accounts;

(b)

prepare a statement of accounts for each financial year; and

(c)

send copies of the statement to the Secretary of State and to the Comptroller and Auditor General on or before the specified date.

(2)

The statement of accounts must be in such form as the Secretary of State may, with the approval of the Treasury, direct.

(3)

The Comptroller and Auditor General must—

(a)

examine, certify and report on each statement received by him under this paragraph; and

(b)

lay copies of each statement and of his report before each House of Parliament.

(4)

“Financial year” means the period of 12 months beginning with 1st April.

(5)

“Specified date” means—

(a)

31st August next following the end of the year to which the statement relates; or

(b)

such earlier date after the end of that year as the Treasury may direct.

Annual report

21

(1)

The Commissioner must, as soon as is practicable after the end of each financial year, report to the Secretary of State on the performance of his functions in that year.

F19(2)

The report must, in particular, set out the Commissioner’s opinion as to the extent to which each designated professional body has—

(a)

provided effective regulation of its members in their provision of immigration advice or immigration services, and

(b)

complied with requests of the Commissioner for the provision of information.

(3)

The Secretary of State must lay a copy of the report before each House of Parliament.

(4)

“Financial year” has the same meaning as in paragraph 20.

Proof of instruments

22

A document purporting to be an instrument issued by the Commissioner and to be signed by or on behalf of the Commissioner is to be received in evidence and treated as such an instrument unless the contrary is shown.

Disqualification for House of Commons

23

In Part III of Schedule 1 to the M3House of Commons Disqualification Act 1975 (offices disqualifying for membership), insert at the appropriate place—

“The Immigration Services Commissioner

The Deputy Immigration Services Commissioner”.

Disqualification for Northern Ireland Assembly

24

In Part III of Schedule 1 to the M4Northern Ireland Assembly Disqualification Act 1975 (offices disqualifying for membership), insert at the appropriate place—

“The Immigration Services Commissioner

The Deputy Immigration Services Commissioner”.

The Parliamentary Commissioner Act 1967 (c.13)

25

In Schedule 2 of the Parliamentary Commissioner Act 1967 (departments and authorities subject to investigation) insert, at the appropriate place, “ The Immigration Services Commissioner ”.