20. Memorandum submitted by
the Office of the Immigration Services Commissioner
1. The Office of the Immigration Services
Commissioner (OISC) is an independent, UK-wide, non-departmental
public body (NDPB) headed by the Immigration Services Commissioner.
The Commissioner is a ministerial appointment and is a corporation
sole.[6]
She is accountable to Parliament through the Home Secretary.
KEY FACTS
— The OISC currently has 63 staff;
— Its 2005-06 budget is 33,968,792;
— The OISC is totally grant-in-aid
funded by the Home Office's Immigration and Nationality Directorate;
— John Scampion, the first Commissioner,
was appointed in 1999. He left Office in May 2005;
— Suzanne McCarthy, the current Commissioner,
took up her appointment on 5 September 2005;
— As at 30 September 2005, the OISC
regulated 1,546 organisations, 1,721 premises and 3,404 regulated
advisers;
— Key OISC staff include Linda Allan,
Deputy Commissioner; Stephen Seymour, Director of Operations,
(who will be appearing with the Commissioner before the Committee);
Jenny Liebenberg, External Affairs Manager and Clyde James, Policy
Manager.
ESTABLISHMENT AND
ROLE
2. Part V of the Immigration and Asylum
Act 1999 created the role of the Immigration Services Commissioner
and introduced the regulation of immigration advisers and immigration
service providers. As a result, from 1 May 2001 it has been unlawful
for any person to provide immigration advice by way of business
in or from the United Kingdom, unless they are regulated by the
OISC, or are solicitors, barristers or legal executives regulated
by their own Designated Professional Body (DPB)[7]
or European equivalent, or have otherwise been exempted from registration.[8]
3. The Government's main aim in setting
up the OISC was to control unscrupulous advisers who it was believed
were preying on the vulnerable and to promote good practice in
the immigration advice sector. It was thought that this would
reduce the suffering and hardship of applicants misled by bad
advisers.
4. The OISC was given specific responsibility
for:
— processing applications received
from immigration advisers for registration or exemption;
— maintaining and publishing details
of those persons authorised by them;
— prosecuting those acting outside
of the Scheme;
— regulating immigration advisers
in accordance with the Commissioner's Rules and Code of Standards;
— establishing a Complaints Scheme,
receiving and handling complaints about immigration advisers;
— monitoring the effectiveness of
how the DPBs regulate their members in respect of immigration
advice; and
— promoting good practice in the immigration
advice sector.
5. While the provision of good immigration
advice directly influences the quality of applications and hence
the quality of initial decision-making, OISC regulation does not
specifically impact on immigration control, and decisions made
by the OISC do not affect the ability for applicants to enter
or remain in the UK.
THE OISC'S
REGULATORY PROCESS
6. The OISC takes a holistic approach to
the regulation of immigration advisers. Its regulatory scheme
has been devised in accordance with Better Regulation principles.
The OISC assesses advisers' fitness and competence, as well as
advice organisations' policies and processes, if they have been
practising elsewhere, the quality of the advice previously given.
A risk assessment strategy has been developed enabling the OISC
to target its resources where the OISC perceives that clients
might be at their most vulnerable. The integrated quality audit
process includes reviewing an adviser's main business systems
and structures, scrutiny of their files and competence assessment.
7. Advisers are divided into three levels
of increasing competence:
— Level 1—Initial advice;
— Level 2—Casework;
— Level 3—Representation and
Advocacy .
These levels are sub-divided into categories.
|
| Area of work | Level 1
Initial advice
| Level 2
Casework
| Level 3
Advocacy and representation
|
|
| Asylum | No applications permitted
(Limited assistance within the immigration rules only)
| All aspects of asylum applications and related HRA applications, Humanitarian Protection/Discretionary Leave applications, lodging (in exceptional circumstances) Notices of Appeal
| Substantive appeals work, including representation in the AIT, specialist casework
|
| Early clerance, Leave to Enter or Leave to Remain
| Basic applications that are within the Immigration Rules, including immigration employment documents
| out-of-time applications, concessionary policies, lodging Notices of Appeal and Statements of Additional Grounds, representations to the IND on illegal entry, overstayer, removal and deportation cases
| As above |
| Nationality and citizenship | Basic applications for registration and naturalisation
| Disretionary and complex applications |
Specialist casework |
| EU and EEA immigration law | Basic applications for EEA nationals and non-EEA family members that are within the Immigration Rules, including applications under the Workers Registration Scheme
| Discretionary and complex applications, lodging Notices of Appeal
| substantive appeals work, including representation in the AIT, specialist casework
|
| Detention, applications for temporary admission, CIO bail, Immigration judge bail
| An adviser at this level must not provie advice/services in this area
| Representations to the IND, applications for temporary admission, CIO bail
| Immigration judge bail, including representation at AIT hearings.
|
|
8. There are four main elements to our regulatory approach:
— Through our audit process, we diagnose the strengths
and weaknesses of individual advisers and identify means to help
them reach the required standards;
— Through the investigation of complaints, we monitor
the incidence of poor advice provision and bad practice among
immigration advisers, and take appropriate action;
— The OISC promotes good practice through the dissemination
of information; and
— Through the use of intelligence and investigations
we prosecute those that continue to remain outside of the regulatory
scheme. To date there have been over 50 successful prosecutions.
9. Regulated organisations range from the large accounting
firms and immigration advice organisations, both for-profit and
non-charging, to one-person offices. There is no such thing as
a typical regulated advice organisation.
OVERSIGHT OF
THE DPBS
10. The Commissioner is under a statutory duty make an
annual report to the Home Secretary giving her opinion of the
extent to which the seven DPBs have provided effective regulation
of their members' provision of immigration services. The OISC
is adapting its approach to this role as a consequence of the
implications of the Department of Constitutional Affairs' (DCA)
proposals in its 2005 White Paper on the future of the regulation
of legal services in England and Wales,[9]
the commencement by several DPBs of Clementi style complaint arrangements
during 2006-07 and the maturing of the relationship between the
OISC and these bodies over the past five years.
COMPLAINTS
Complaints come from a variety of sources including clients,
other advisers, members of the public and MPs. In certain cases
the Commissioner will instigate investigations on her own behalf.
OISC caseworkers undertaking audits ensure that advisers implement
their own internal complaints procedure. There are, however, various
reasons why clients may feel inhibited from complaining to the
OISC. These include:
— Fear of dealing with "officialdom";
— Vulnerability;
— Intimidation;
— Disclosure of Complainant's identity;
— Attendance as a Witness;
— Immigration Status;
— "Stigma";
— That complaining will not personally help them.
12. Since 2001 the OISC has received almost 1,400 complaints
about regulated immigration advisers. 616 of these have been about
OISC advisers (includes 238 such complaints received in 2004-05;
138 in 2003-04; 120 in 2002-03; 120 in 2001-02). As at 31 March
2005 515 complaints had been fully investigated. The OISC's target
for completing investigations (introduced in 2003-04) is 75% within
six months, and that target was met in 2004-05.
13. In 2003-04 the OISC began annually reporting on the
outcome of its investigations. In that year 148 complaints were
closed of which 36% (53) were substantiated. In 2004-05 201 complaints
were closed of which 39% (79) were substantiated.
14. In less serious matters the OISC works with the adviser
to improve their practices. More serious breaches of the Commissioner's
Rules and Code of Standards result in the complaint being formally
recorded against the organisation (76 complaints in 2004-05) and
may result in the refusal of any further application. Where the
matter is extremely serious, the OISC may take a disciplinary
charge to the Immigration Services Tribunal (2004-05 one case;
2005-06 to date, two cases) with a recommendation that may include
removal of the rganization from the OISC's list or an indefinite
ban.
15. Over 750 complaints about DPB members have been received
by the OISC since 2001. In addition they receive complaints directly.
The ones received by us are referred to the appropriate DPB for
investigation, with the OISC monitoring the effectiveness of that
investigation and outcome. This monitoring informs the Commissioner's
annual report to the Home Secretary about the DPB's regulatory
effectiveness.
Suzanne McCarthy
Immigration Services Commissioner
19 January 2006
Annex A—Statistics
Annex B—Case studies
Annex C—Glossary
6
Immigration and Asylum Act 1999-Sch 5 paragraph 11(1). Back
7
List of DPBs-The Law Society of England and Wales; The Law Society
of Scotland; The Faculty of Advocates; The General Council of
the Bar of England and Wales; The Law Society of Northern Ireland;
The General Council of the Bar of Northern Ireland and the Institute
of Legal Executives. Back
8
Ministerial Orders-SI 2001/1403 Exemption: Educational Institutions
and Health Sector Bodies; SI 2002/3025 Relevant Employers. Back
9
DCA White Paper-The Future of Legal Services: Putting Consumers
First. Back
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