Examination of Witnesses (Questions 381
- 400)
TUESDAY 24 JANUARY 2006
MRS SUZANNE
MCCARTHY
AND MR
STEPHEN SEYMOUR
Q381 Mr Winnick: Thank you very much
for coming along, Mrs McCarthy and Mr Seymour. Obviously you have
listened to the previous witnesses, the judges. We would like
to have your views on various aspects of the work which you have
undertaken as Immigration Services Commissioner and your colleague
as well. Can I ask, first of all, Mrs McCarthy, your duty within
the organisation is to try and ensure the immigration advisers
do not seek to abuse immigration control, they have some form
of control over the way in which they make representation and
are able to do so. You have given us some examples of the type
of abuses you have noticed amongst advisers. What effect do abusers
like the ones you have given evidence about have on the immigration
control system?
Mrs McCarthy: I would say to you
is what I would look at is the opposite way of approaching that
issue, which is that what we are looking for is to ensure there
is good immigration advice. In order to do that we have to ensure
that those we find are not able to give such advice because they
are incompetent, or they are not capable, or not fit to do so
are not within the system. Also, if we find abuse we have to be
able to ensure that those people never come into the system. There
are two elements of our work, one is to help those in the system
become better or, if not, to get them out of the register, and
those who do not want to be in the system at any time and we prosecute
them.
Q382 Mr Winnick: The reason your
organisation is in existence in the first place is because anyone
can come along and argue a case or try to do so before immigration
judges, and they have absolutely no qualification. Is that not
the situation?
Mrs McCarthy: That is not correct.
If someone was coming along on the odd moment as a McKenzie friend
on the one occasion, they probably would not be giving advice
or services under the Act. If we found somebody was doing that
repeatedly then we would want them in our scheme. I should say
that of the 3,500 advisers that we register, only 277 of those
at the moment are Level 3 advisers and have the right to appear
before immigration judges as OISC registered advisers on a regular
basis.
Q383 Mr Winnick: I was referring
to the situation that happened in the past, hence the reason the
Government acted as they did, according to your organisation.
It was the case, was it not, that anyone could come along unless
the adjudicator, as the judge in court, said that they would not
be willing to listen to such representation. That was the type
of abuse that was occurring, was it not?
Mrs McCarthy: I believe there
were many types of abuses. The problems we had when the organisation
was set up was that no research was done about what was out there.
There was a lot of anecdotal evidence. The OISC, under my predecessor
John Scampion, started initially by determining what was out there
as best could be done. We have, over the last five years, grown
a scheme which now has, as we have seen, approximately 3,500 registered
advisers and 1,500 or so organisations, both for profit and non-profit.
I have to say there will always be abuse.
Q384 Mr Winnick: What are the steps
that you take to decide that someone should be in a position in
that capacity?
Mrs McCarthy: There are a number
of ways we regulate and we take a better regulation proportionate
view of how to do regulation, it is also a very holistic process.
The first is obviously to identify, through community work and
other work, those who may be giving advice and do not know they
should be in our scheme. For example, in the next financial year
we will be working closely with the Scottish Refugee Council,
working in Scotland to bring our organisation to the notice of
people, and also, in Yorkshire and in the North with the Chinese
and Asian communities that we are focusing on. Many are not aware
of our existence and they may be giving advice and do not realise
they should be working with us as part of the scheme. Also, we
want to bring to the attention of people that if they have problems
with their advisers, whether they be legally qualified or professional
lay people that we would want to hear about those complaints because
obviously they help us to eliminate people from giving such advice.
Once we have determined that someone should be in our scheme we
have to have an application from them, there is continual registration,
there is monitoring, auditing, competence assessment and, hopefully,
in the future, we will be including Continual Professional Development
as well.
Q385 Mrs Cryer: Mrs McCarthy, the
system of regulation seems unnecessarily complex and advisers
can seemingly avoid regulation or oversight altogether, for example,
by linking themselves to solicitors who are regulated already,
or by taking advantage of the exemption for employers. Would you
not prefer to see a comprehensive system for regulating all immigration
advisers?
Mrs McCarthy: I think you picked
up on a very important point and it is something we have discussed
with the Law Society of England and Wales in particular, because
there are situations where there have been advisers that we would
not have in our scheme who have found themselves under the wing
of a solicitor. I would say that yes, regulation, if it can be
comprehensive, is good regulation. Having said that, I know that
the new accreditation coming in focuses much more on redress for
the consumer and that is fair and right, but we look at it in
immigration in a far wider capacity. Very often the redress you
might be able to give someone would not put them in the position
that they would want to be because they have been deported, for
example. What we are looking at is complaints that help us make
a better advice sector overall. Therefore, if it was to be one
type of regulation that focused only on consumer complaints and
consumer redress, I do not think that would be sufficient for
the immigration sector that we are dealing with.
Q386 Mr Clappison: Can I ask you
specifically about overseas advisers. First of all, I notice in
your response to the consultation paper you said, and I quote:
"There are credible reports of human trafficking and general
abuse of the UK's immigration system by overseas criminal networks.
It is possible that the provision of deliberately false or improper
immigration advice to applicants whilst abroad may actually result
in a lucrative sideline for such networks." That is a pretty
alarming state of affairs. What exactly is your evidence for that?
Mrs McCarthy: The evidence that
we have of that obviously would have to come from others that
are trying to work with overseas advisers, for example, the Australian
Government reporting in 2004, based on work they had done in 2002,
about the problems they had had with overseas advisers. I should
say that I do think that there can be a form of accreditation
for overseas advisers that would help with the quality of advice
given, would ensure people went to better advisers and assist
in applications and the way they went through the system.
Q387 Mr Clappison: That is the Australian
system?
Mrs McCarthy: I cannot speak knowledgeably
about the Australian system. I know that they do have a system
of doing accreditation of some overseas advisers.
Q388 Mr Clappison: Have you had discussions
with the Government about this?
Mrs McCarthy: Yes, we have had
informal discussions with Home Office officials regarding the
possibility of such a scheme. I think it would have to be obviously
different from the scheme we have in this country because ours
is based on statute and it would not be regulation, but I think
there could be a form of accreditation in which advisers could
be encouraged, on a voluntary basis, to come into the scheme and
we would use carrots basically to make them want to do so. In
which case, we would then be able to help in the flow of applications
and the flow of good applications.
Q389 Mr Clappison: I believe you
particularly said all those applying for permission to work in
the UK should be required to have their applications checked by
a "reputable" immigration adviser.
Mrs McCarthy: One of the things
about the managed migration consultation paper, much of which
we felt was right about simplification and so forth, is that it
did not actually make any reference to immigration advisers. We
thought that was remiss and we brought that to their attention
in our response. I think however simple you are going to have
a system and how much you push it across into other borders, you
are always going to end up with people needing advice. That is
where I guess we still have a role.
Q390 Mr Winnick: The Immigrant Advisory
Service has various officers overseas. Do you take the view that
that is very helpful, giving good advice to people who want to
come to the United Kingdom?
Mrs McCarthy: I think that you
have to say to yourself, "Who is actually manning those offices
overseas and how are they controlled by IAS in this country?"
There can be various relationships they have in terms of partnerships
and affiliations. I think it is important to say that if someone
was regulated here and went overseas and gave advice out, they
would not have to come to any sort of accredited scheme that might
be devised. However, if they were giving advice overseas and were
not regulated by us at all, then I think that in fact they should
be part of the accredited scheme, whether or not they had some
relationship with another body in this country. I do not know
whether or not you wish to say anything, Mr Seymour?
Mr Seymour: The only thing I would
add to that is that the IAS are regulated in this country, so
we look at their processes and their competence and the organisation
they are as well. Overseas, we do not have any responsibility
for that at the moment, should that come in in the future, I think
that is something we will certainly look at.
Mr Winnick: I think my colleague, Mr
Prosser, is going to pursue that.
Q391 Gwyn Prosser: First of all,
to what extent would you say the Community Legal Services accreditation
scheme overlaps or duplicates the work of the Commission?
Mrs McCarthy: The Legal Services
Commission overlaps with our work?
Q392 Gwyn Prosser: With the work
of the Community Legal Services accreditation service.
Mrs McCarthy: Our passporting
of our own accreditation and theirs is very similar and we are
looking at areas in which we can ensure that our Level 3 advisers,
the ones that appear before Justice Hodge, are able to get such
contracts. I think it is important that we note the comments that
were made by the Committee earlier regarding the provision of
legal advice. We have heard evidence of the problems with regard
to the provision of legal advice throughout the country and, in
fact, I personally wrote to my opposite number at the Home Office
and I know that he is intending to have a meeting with ourselves,
IND and the community services to talk about this problem because
we do want to see whether or not our Level 3 advisers could obtain
these contracts as well. With regard to accreditation, as was
said by Justice Hodge, it is very much a matter of training. We
feel that training is extremely important, not to turn IND into
advisers but to make them knowledgeable. We encourage training
among our own staff and Level 3 advisers by giving advocacy courses
that have been developed by judges within the AIT.
Mr Seymour: There is a subtle
difference between what the LSC and the OISC do; they are very
much in the capacity of immigration advice and we are very much
the regulator. We have slightly different systems, but our advisers
go through OISC competence assessment as well. As Mrs McCarthy
has already said, we passport through LSC-accredited advisers
into our scheme—unfortunately the reverse is not true at
the moment—so we have to go through our own system of competence
assessment backed up by that training to make sure we have good
and competent advisers.
Q393 Gwyn Prosser: You will have
heard the discussion earlier where someone suggested there was
quite a disparity between the decision-making competency of different
posts and different Entry Clearance Officers. Do you think there
is a case to be made for bringing IND officials and those officials
under the Community Legal Services accreditation scheme?
Mrs McCarthy: I think again it
goes back to this question of why would you do that, and the reason,
as I think Justice Hodge said and I would endorse that, is it
is all about training and training is always good. There is no
reason why it has to be Community Legal Services training; we
give training packs and we can develop training for IND officials
as well. In fact our own case workers have to go through what
we give advisers in terms of training, so they can understand
from their point of view how they are acclimatising and learning
about the work that they are doing and the various levels they
wish to operate. I would support training. I am not necessarily
saying it has to be Community Legal Services accreditation or
OISC training material, but, yes, better trained people tend to
make better decisions.
Q394 Gwyn Prosser: Would you welcome
bringing them under your jurisdiction?
Mrs McCarthy: I do not think it
would be our jurisdiction. I think it would be us assisting the
Home Office in devising training material which would then help
their officers to do their job better.
Q395 Mr Winnick: You will have heard
earlier in the previous session where I mentioned the criticism
that has been made of Entry Clearance Officers, Mrs McCarthy.
Sometimes they feel strongly that they know what they are about;
it is people in the United Kingdom who just do not understand
what is happening on the Indian sub-continent or wherever there
is such a demand to come to the United Kingdom. Have you heard
such a criticism of Entry Clearance Officers?
Mrs McCarthy: I have not personally.
Mr Seymour may have, but no, I have not.
Mr Seymour: We have limited contact
with Entry Clearance Officers but we deal with our advisers in
this country who may well have contact with Entry Clearance Officers
or the decisions that are made by them. We meet with our advisers
on a fairly frequent basis; our case workers have almost daily
contact at some point with advisers. There is apocryphal stories
that come back of inconsistency and indecision; I do not think
that is headline news. What the problems are, and as far as the
evidence is concerned of those problems, it is very difficult
for us to say.
Q396 Mr Winnick: One other question
before I ask my colleagues to come in, do you go along to hearings
to watch proceedings and make your own assessment on the way in
which both the Home Office but particularly those representing
appellants present their case? You authorise them, so to speak,
not the Home Office but the appellants' representatives, and I
wonder if you go along from time to time in London and elsewhere
to see how they are performing.
Mrs McCarthy: I have not personally
but possibly my colleague has.
Mr Seymour: It is not something
that is part of the regulatory process.
Q397 Mr Winnick: I understand that.
Mr Seymour: What we do is we certainly
look at the files on the premises or whatever it is to make sure
that arguments up to that particular stage are looked at in a
fair way. We have dealings with the various AIT places around
the country and we have developed procedures where we get information
back also. If there are problems with advisers, where poor advice
has been given in some way, then we get that back through the
judges who are in attendance.
Q398 Mr Winnick: Do you get such
complaints?
Mr Seymour: Yes, we do get some
through. Obviously we have to take those on and where there are
determinations, and sometimes there is criticism within those
determinations, we can take those up. We are hoping to develop
that further in the future.
Mrs McCarthy: I should say that
if we did have a complaint and someone was, in fact, not producing
a level of advocacy we would want, one of our powers would be
to reduce the level at which that person was operating so they
could no longer appear as an advocate in the court.
Q399 Colin Burgon: On the point of
malpractice, you have got the job of investigating complaints
about immigration advisers. We heard Justice Hodge talk about
some pretty rubbish advisers and we were talking specifically
about malpractice. You do explain in your submission to the Committee
that many people are fearful of telling you about malpractice—I
hope it is not MPs—because there is a fear of dealing with
officialdom, vulnerability and intimidation, et cetera. If that
is the case, how effective can you be in bringing this malpractice
to light?
Mrs McCarthy: Obviously to hear
a complaint from someone who has personally experienced it is
the best way to understand what has happened. The complaints are
not limited to simply the person to whom it happened. A third
party can bring a complaint or we can get evidence from various
other aspects. We have had for quite a long time quite a good
network of relationships with bodies such as police forces to
trading standards officers and national bodies collecting evidence
and data. In fact, we have connections with just under 400 of
those types of organisations and individuals and information is
going back and forth throughout our networks with them and our
intelligence. While I would encourage anyone here today at the
Select Committee who has any evidence of bad advice being given
to contact us so we can investigate it, we are not limited to
the complainant himself. In fact, there are a number of occasions
when a complainant wished to give evidence but wanted to do it
without giving their name because they were frightened. In those
circumstances, should I think it right, I can take it on as my
own complaint and I know my predecessor did that on occasions
and I am willing to do that myself. While any evidence is helpful,
obviously the best evidence is personal experience, but we do
have other links and, again, information in many different quarters.
Q400 Colin Burgon: Just to give us
some idea, for instance last year how many complaints of malpractice
did you look at?
Mrs McCarthy: For the period 1
April 2005 to 30 September 2005 I think there was something like
276 complaints, of which around 125 or so were in fact directly
on OISC advisers, around 80 related to people practising outside
the scheme and about 75 related to solicitors or barristers, most
of whom were in England and Wales.
Mr Winnick: Mrs McCarthy and Mr Seymour,
thank you very much indeed.
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