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PART V |
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IMMIGRATION ADVISERS AND IMMIGRATION SERVICE PROVIDERS |
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Interpretation |
| Interpretation of Part V. |
67. - (1) In this Part-
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"claim for asylum" means a claim that it would be contrary to the United Kingdom's obligations under- |
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(a) the Refugee Convention, or
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(b) Article 3 of the Human Rights Convention,
for the claimant to be removed from, or required to leave, the United Kingdom; |
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"the Commissioner" means the Immigration Services Commissioner; |
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"the complaints scheme" means the scheme established under paragraph 4(1) of Schedule 5; |
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"designated professional body" has the meaning given by section 71; |
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"immigration advice" means advice which- |
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(a) relates to a particular individual;
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(b) is given in connection with one or more relevant matters;
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(c) is given by a person who knows that he is giving it in relation to a particular individual and in connection with one or more relevant matters; and
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(d) is not given in connection with representing an individual before a court in criminal proceedings or matters ancillary to criminal proceedings;
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"immigration services" means the making of representations on behalf of a particular individual- |
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(a) in civil proceedings before a court, tribunal or adjudicator in the United Kingdom, or
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(b) in correspondence with a Minister of the Crown or government department,
in connection with one or more relevant matters; |
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"Minister of the Crown" has the same meaning as in the Ministers of the Crown Act 1975; |
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"qualified person" means a person who is qualified for the purposes of section 69; |
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"registered person" means a person who is registered with the Commissioner under section 70; |
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"relevant matters" means any of the following- |
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(b) an application for, or for the variation of, entry clearance or leave to enter or remain in the United Kingdom;
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(c) unlawful entry into the United Kingdom;
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(d) nationality and citizenship under the law of the United Kingdom;
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(e) citizenship of the European Union;
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(f) admission to Member States under Community law;
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(g) residence in a Member State in accordance with rights conferred by or under Community law;
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(h) removal or deportation from the United Kingdom;
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(i) an application for bail under the Immigration Acts or under the Special Immigration Appeals Commission Act 1997;
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(j) an appeal against, or an application for judicial review in relation to, any decision taken in connection with a matter referred to in paragraphs (a) to (i); and
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"the Tribunal" means the Immigration Services Tribunal. |
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(2) In this Part, references to the provision of immigration advice or immigration services are to the provision of such advice or services by a person-
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(a) in the United Kingdom (regardless of whether the persons to whom they are provided are in the United Kingdom or elsewhere); and |
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(b) in the course of a business carried on (whether or not for profit) by him or by another person. |
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The Immigration Services Commissioner |
| The Commissioner. |
68. - (1) There is to be an Immigration Services Commissioner (referred to in this Part as "the Commissioner").
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(2) The Commissioner is to be appointed by the Secretary of State after consulting the Lord Chancellor.
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(3) It is to be the general duty of the Commissioner to promote good practice by those who provide immigration advice or immigration services.
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(4) In addition to any other functions conferred on him by this Part, the Commissioner is to have the regulatory functions set out in Part I of Schedule 5.
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(5) The Commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services-
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(a) are fit and competent to do so; |
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(b) act in the best interests of their clients; |
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(c) do not knowingly mislead any court, tribunal or adjudicator in the United Kingdom; |
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(d) do not seek to abuse any procedure operating in the United Kingdom in connection with immigration or asylum (including any appellate or other judicial procedure); |
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(e) do not advise any person to do something which would amount to such an abuse. |
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(6) The Commissioner-
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(a) must arrange for the publication, in such form and manner and to such extent as he considers appropriate, of information about his functions and about matters falling within the scope of his functions; and |
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(b) may give advice about his functions and about such matters. |
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(7) Part II of Schedule 5 makes further provision with respect to the Commissioner.
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The general prohibition |
| Provision of immigration services. |
69. - (1) No person may provide immigration advice or immigration services unless he is a qualified person.
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(2) A person is a qualified person if-
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(a) he is registered with the Commissioner or is employed by, or works under the supervision of, such a person; |
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(b) he is a member or employee of a body which is a registered person, or works under the supervision of such a member or employee; |
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(c) he is authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body, or works under the supervision of such a person; |
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(d) he is registered with, or authorised by, a person in another EEA State responsible for regulating the provision in that EEA State of advice or services corresponding to immigration advice or immigration services or would be required to be so registered or authorised were he not exempt from such a requirement; |
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(e) he is authorised by a body regulating the legal profession, or any branch of it, in another EEA State to practise as a member of that profession or branch; or |
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(f) he is employed by a person who falls within paragraph (d) or (e) or works under the supervision of such a person or of an employee of such a person. |
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(3) If a registered person's registration has limited effect (by virtue of paragraph 2(2) of Schedule 6), neither paragraph (a) nor (b) of subsection (2) authorises the provision of advice or services falling outside the scope of that registration.
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(4) Subsection (1) does not apply to a person who-
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(a) is certified by the Commissioner as exempt ("an exempt person"); |
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(b) is employed by an exempt person; |
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(c) works under the supervision of an exempt person or an employee of an exempt person; or |
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(d) who falls within a category of person specified in an order made by the Secretary of State for the purposes of this subsection. |
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(5) A certificate under subsection (4)(a) may relate only to a specified description of immigration advice or immigration services.
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(6) Subsection (1) does not apply to a person-
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(a) holding an office under the Crown, when acting in that capacity; |
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(b) employed by, or for the purposes of, a government department, when acting in that capacity; |
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(c) acting under the control of a government department; or |
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(d) otherwise exercising functions on behalf of the Crown. |
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(7) An exemption given under subsection (4) may be withdrawn by the Commissioner.
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(8) "EEA State" means a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as it has effect for the time being.
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| Registration and exemption by the Commissioner. |
70. - (1) The Commissioner must prepare and maintain a register for the purposes of section 69(2)(a) and (b).
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(2) The Commissioner must keep a record of the persons to whom he has issued a certificate of exemption under section 69(4)(a).
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(3) Schedule 6 makes further provision with respect to registration.
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| Designated professional bodies. |
71. - (1) "Designated professional body" means-
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(b) The Law Society of Scotland; |
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(c) The Law Society of Northern Ireland; |
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(d) The Institute of Legal Executives; |
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(e) The General Council of the Bar; |
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(f) The Faculty of Advocates; or |
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(g) The General Council of the Bar of Northern Ireland. |
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(2) If the Secretary of State considers that a designated professional body has consistently failed to provide effective regulation of its members in their provision of immigration advice or immigration services, he may by order amend subsection (1) to remove the name of that body.
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(3) If a designated professional body asks the Secretary of State to amend subsection (1) so as to remove its name, the Secretary of State may by order do so.
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(4) If the Secretary of State is proposing to act under subsection (2) he must, before doing so-
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(a) consult the Commissioner; |
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(b) notify the body concerned of his proposal and give it a reasonable period within which to make representations; and |
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(c) consider any representations so made. |
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(5) An order under subsection (2) requires the approval of-
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(a) the Lord Chancellor, if it affects a designated professional body in England and Wales or Northern Ireland; |
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(b) the Scottish Ministers, if it affects a designated professional body in Scotland. |
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(6) If the Secretary of State considers that a body which-
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(a) is concerned (whether wholly or in part) with regulating the legal profession, or a branch of it, in an EEA State, |
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(b) is not a designated professional body, and |
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(c) is capable of providing effective regulation of its members in their provision of immigration advice or immigration services,
ought to be designated, he may by order amend subsection (1) to include the name of that body. |
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(7) The Commissioner must-
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(a) keep under review the list of designated professional bodies set out in subsection (1); and |
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(b) report to the Secretary of State if he considers that a designated professional body is failing to provide effective regulation of its members in their provision of immigration advice or immigration services. |
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(8) For the purpose of meeting the costs incurred by the Commissioner in discharging his functions under this Part, each designated professional body must pay to the Commissioner, in each year and on such date as may be specified, such fee as may be specified.
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(9) Any unpaid fee for which a designated professional body is liable under subsection (8) may be recovered from that body as a debt due to the Commissioner.
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(10) "Specified" means specified by an order made by the Secretary of State.
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