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SCHEDULE 5
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THE IMMIGRATION SERVICES COMMISSIONER |
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PART I |
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REGULATORY FUNCTIONS |
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The Commissioner's rules |
| | 1. - (1) The Commissioner may make rules regulating any aspect of the professional practice, conduct or discipline of-
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(a) registered persons, and |
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(b) those employed by, or working under the supervision of, registered persons, |
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in connection with the provision of immigration advice or immigration services.
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(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.
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(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-
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(b) any person employed by, or working under the supervision of, that person. |
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(4) The rules may, among other things, make provision requiring the keeping of accounts or the obtaining of indemnity insurance.
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Code of Standards |
| | 2. - (1) The Commissioner must prepare and issue a code setting standards of conduct which those to whom the code applies are expected to meet.
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(2) The code is to be known as the Code of Standards but is referred to in this Part of this Act as "the Code".
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(3) The Code is to apply to any person providing immigration advice or immigration services who is not a person authorised to do so by a designated body or a person employed by or working under the supervision of a person so authorised.
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(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.
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(5) If the Commissioner alters the Code, he must re-issue it.
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(6) Before issuing the Code or altering it, the Commissioner must consult-
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(a) each of the designated professional bodies; and |
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(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. |
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(7) The Commissioner must publish the Code in such form and manner as the Secretary of State may direct.
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Extension of scope of the Code |
| | 3. The Secretary of State may, after consulting the Commissioner and with the approval of the Lord Chancellor, 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-
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(a) persons authorised by any designated professional body to provide immigration advice or immigration services; and |
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(b) persons working under the supervision of such persons. |
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Investigation of complaints |
| | 4. - (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.
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(2) A complaint is a relevant complaint if it relates to-
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(a) the competence or fitness of a person to provide immigration advice or immigration services, |
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(b) the competence or fitness of a person employed by, or working under the supervision of, a person providing immigration advice or immigration services, |
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(c) an alleged breach of the Code, |
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(d) an alleged breach of one or more of the Commissioner's rules by a person to whom they apply, |
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(e) an alleged breach, by a person who falls within paragraph (c), (d) or (e) of section 63(2), of one or more of the rules of the relevant regulatory body, |
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but not if it relates to a person who is excluded from the application of subsection (1) of section 63 by subsection (4)(b) or (5) of that section.
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(3) 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.
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(4) 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.
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| | 5. - (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.
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(2) Any person who is the subject of an investigation under the scheme must-
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(a) take such steps as are reasonably required to assist the Commissioner in his investigation; and |
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(b) comply with any reasonable requirement imposed on him by the Commissioner. |
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(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-
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(a) in the case of a registered person, cancel his registration; |
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(b) in the case of a person certified by the Commissioner as exempt under section 63(4)(a), withdraw his exemption; or |
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(c) in the case of a person falling within paragraph (c), (d) or (e) of section 63(2), refer the matter to the relevant regulatory body. |
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Power to enter premises |
| | 6. - (1) This paragraph applies if-
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(a) the Commissioner is investigating a complaint under the complaints scheme; |
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(b) the complaint falls within paragraph 3(2)(a), (b) or (d); and |
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(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 registered person. |
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(2) The Commissioner, or a member of his staff authorised in writing by him, may enter the premises at reasonable hours.
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(3) Sub-paragraph (2) does not apply to premises to the extent to which they constitute a private residence.
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(4) A person exercising the power given by sub-paragraph (2) ("the investigating officer") may-
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(a) take with him such equipment as appears to him to be necessary; |
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(b) require any person on the premises- |
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(i) to produce any document which he considers relates to any matter relevant to the investigation; and
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(ii) if the document is produced, to provide an explanation of it;
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(c) require any person to state, to the best of his knowledge and belief, where any such document is to be found; |
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(d) take copies of, or extracts from, any document which is produced; |
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(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- |
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(i) in which it can be taken away; and
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(ii) in which it is visible and legible.
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(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.
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(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.
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(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.
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Determination of complaints |
| | 7. - (1) On determining a complaint under the complaints scheme, the Commissioner must give his decision in a written statement.
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(2) The statement must include the Commissioner's reasons for his decision.
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(3) A copy of the statement must be given by the Commissioner to-
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(a) the person who made the complaint; and |
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(b) the person who is the subject of the complaint. |
| | 8. - (1) On determining a complaint under the complaints scheme, the Commissioner may-
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(a) if the person to whom the complaint relates is a registered person or a person employed by, or working under the supervision 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; |
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(b) if the person to whom the complaint relates is a registered person or a person employed by, or working under the supervision 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; |
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(c) if the person to whom the complaint relates falls within paragraph (c), (d) or (e) of section 63(2) or is working under the supervision of such a person, refer the complaint and his decision on it to the relevant regulatory body; |
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(d) if the person to whom the complaint relates is certified by the Commissioner as exempt under section 63(4)(a) or is employed by, or working under the supervision of, such a person, consider whether to withdraw that person's exemption; |
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(e) lay before the Tribunal a disciplinary charge against a relevant person. |
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(2) "Relevant person" means a person providing immigration advice or immigration services who is-
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(b) a person employed by, or working under the supervision of, a registered person; |
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(c) a member of a body which is registered with the Commissioner; |
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(d) a person working under the supervision of- |
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(ii) an employee of such a body; or
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(e) a person certified by the Commissioner as exempt under section 63(4)(a). |
