|
| |
| |
(c) | by an individual (whether or not a member of the |
| |
| |
(c) | after that sub-paragraph insert— |
| |
“(1A) | Where by virtue of sub-paragraph (1) any function may be |
| |
discharged by a committee, the committee may arrange for |
| 5 |
the discharge of that function by— |
| |
(a) | a sub-committee of that committee; or |
| |
(b) | an individual, whether or not a member of the |
| |
| |
(1B) | Sub-paragraph (1A) is subject to any contrary direction |
| 10 |
| |
(1C) | Arrangements made under sub-paragraph (1) or (1A) in |
| |
respect of a function may provide that the function is to be |
| |
exercised in accordance with the arrangements only (and |
| |
not by the delegating body). |
| 15 |
(1D) | For this purpose “the delegating body” means— |
| |
(a) | in the case of arrangements under sub-paragraph |
| |
| |
(b) | in the case of arrangements under sub-paragraph |
| |
| 20 |
(d) | for sub-paragraph (3) substitute— |
| |
“(3) | Any power conferred by sub-paragraph (1), (1A) or (2) |
| |
may be exercised so as to impose restrictions or conditions |
| |
on the body or individual by whom the function is to be |
| |
| 25 |
(e) | for sub-paragraphs (6) and (7) substitute— |
| |
“(6) | A committee or sub-committee established under this |
| |
paragraph may include or consist of individuals other |
| |
| |
(a) | members of the Council; |
| 30 |
(b) | licensed conveyancers. |
| |
(7) | A sub-committee of a committee established under this |
| |
paragraph may also include or consist of individuals other |
| |
than members of the committee. |
| |
(7A) | The Council may make arrangements for the appointment |
| 35 |
and removal of members of any committee to be made |
| |
other than by the Council. |
| |
(7B) | A committee or sub-committee may regulate its own |
| |
procedure, including quorum.”, and |
| |
(f) | after sub-paragraph (9) insert— |
| 40 |
“(10) | This paragraph is subject to any provision to the contrary |
| |
made by or under any enactment.” |
| |
(11) | Omit paragraph 13 (Council’s intervention powers). |
| |
| |
| |
|
| |
| |
| |
| |
Immigration advice and immigration services |
| |
| |
| |
| 5 |
1 | In this Part of this Schedule “designation order” means an order made under |
| |
section 86A(6) of the Immigration and Asylum Act 1999 (c. 33) (designated |
| |
qualifying regulators entitled to authorise persons to provide immigration |
| |
advice and immigration services). |
| |
Continuity of existing rights |
| 10 |
2 | Each of the following bodies is a qualifying regulator for the purposes of |
| |
Part 5 of the Immigration and Asylum Act 1999— |
| |
| |
(b) | the Institute of Legal Executives; |
| |
(c) | the General Council of the Bar. |
| 15 |
Application to become a qualifying regulator |
| |
3 (1) | This paragraph applies where a body wishes to become a qualifying |
| |
regulator for the purposes of Part 5 of the Immigration and Asylum Act |
| |
| |
(2) | A body may apply to the Board for the Board— |
| 20 |
(a) | to designate the body as a qualifying regulator for those purposes, |
| |
| |
(b) | to approve what the applicant proposes as its regulatory |
| |
arrangements if a designation order is made (“the proposed |
| |
regulatory arrangements”). |
| 25 |
(3) | But a body may make an application under this paragraph only if— |
| |
(a) | it is an approved regulator (other than the Board), or |
| |
(b) | it has made an application under Part 2 of Schedule 4 (designation of |
| |
| |
(4) | An application under this paragraph must be made in such form and |
| 30 |
manner as the Board may specify in rules and must be accompanied by— |
| |
(a) | details of the applicant’s proposed regulatory arrangements, |
| |
(b) | such explanatory material as the applicant considers is likely to be |
| |
needed for the purposes of this Part of this Schedule, and |
| |
| 35 |
(5) | The prescribed fee is the fee prescribed in, or determined in accordance with, |
| |
rules made by the Board with the consent of the Lord Chancellor. |
| |
(6) | An applicant may, at any time, withdraw the application by giving notice to |
| |
that effect to the Board. |
| |
| |
| |
|
| |
| |
Consultation and representations |
| |
4 | Paragraphs 4 to 12 of Schedule 4 (consultation requirements etc in relation |
| |
to applications for designation as approved regulator) apply in relation to an |
| |
application under paragraph 3 as they apply in relation to an application |
| |
under paragraph 3 of that Schedule, but as if— |
| 5 |
(a) | in paragraphs 6(2), 7(2), and 9(3) of that Schedule the references to |
| |
making an order under paragraph 17 in accordance with the |
| |
recommendation were references to making a designation order in |
| |
respect of the applicant, and |
| |
(b) | in paragraph 6(2) of that Schedule the reference to the market for |
| 10 |
reserved legal services were a reference to the market for |
| |
immigration advice and immigration services. |
| |
Determination of application |
| |
5 (1) | The Board must make rules specifying how it will determine applications |
| |
| 15 |
(2) | Rules under sub-paragraph (1) must, in particular, provide that the Board |
| |
may grant an application only if it is satisfied— |
| |
(a) | that, if a designation order were to be made in relation to the |
| |
applicant, the applicant would have appropriate internal |
| |
governance arrangements in place at the time the order takes effect, |
| 20 |
(b) | that, if such an order were made, the applicant would be competent |
| |
to perform the role of designated qualifying regulator (within the |
| |
meaning of section 86A of the Immigration and Asylum Act 1999 |
| |
| |
(c) | that the arrangements made by the applicant for authorising persons |
| 25 |
to provide immigration advice or immigration services provide that |
| |
persons may not be so authorised unless they are persons who are |
| |
also authorised by the applicant to carry on activities which are |
| |
reserved legal activities, |
| |
(d) | that the applicant’s proposed regulatory arrangements make |
| 30 |
appropriate provision, and |
| |
(e) | that the applicant’s proposed regulatory arrangements comply with |
| |
the requirements imposed by sections 112 and 146 (requirements |
| |
imposed in relation to the handling of complaints). |
| |
(3) | The rules made for the purposes of sub-paragraph (2)(a) must in particular |
| 35 |
require the Board to be satisfied— |
| |
(a) | that the exercise of the applicant’s regulatory functions would not be |
| |
prejudiced by any of its representative functions, and |
| |
(b) | that decisions relating to the exercise of its regulatory functions |
| |
would so far as reasonably practicable be taken independently from |
| 40 |
decisions relating to the exercise of its representative functions. |
| |
(4) | In subsection (2)(c) the reference to persons who are also authorised by the |
| |
applicant to carry on activities which are reserved legal activities includes, |
| |
in relation to any application by the Law Society, registered foreign lawyers |
| |
(within the meaning of section 89 of the Courts and Legal Services Act 1990). |
| 45 |
| |
(a) | the application and accompanying material, |
| |
(b) | any other information provided by the applicant, |
| |
| |
| |
|
| |
| |
(c) | any advice duly given and representations duly made by virtue of |
| |
| |
(d) | any other information which the Board considers relevant to the |
| |
| |
| the Board must decide whether to grant the application. |
| 5 |
(2) | The Board must give notice of its decision to the applicant (“the decision |
| |
| |
(3) | Where the Board decides to refuse the application, the decision notice must |
| |
specify the reasons for that decision. |
| |
(4) | The Board must publish the decision notice. |
| 10 |
(5) | Paragraph 15 of Schedule 4 (period within which decision must be made) |
| |
applies in relation to a decision notice under this paragraph as it applies in |
| |
relation to a decision notice under paragraph 14 of that Schedule. |
| |
| |
7 (1) | Where an application is granted under paragraph 6, the decision notice must |
| 15 |
specify that the applicant is a qualifying regulator for the purposes of Part 5 |
| |
of the Immigration and Asylum Act 1999 (c. 33). |
| |
(2) | Where an application is granted under paragraph 6, the proposed |
| |
regulatory arrangements are at the same time treated as having been |
| |
| 20 |
(3) | But if the application was made in reliance upon paragraph 3(3)(b), the |
| |
applicant’s status as such a qualifying regulator and the approval of its |
| |
proposed regulatory arrangements under sub-paragraph (2) are conditional |
| |
upon the Lord Chancellor making an order under Part 2 of Schedule 4 |
| |
designating the body as an approved regulator in relation to one or more |
| 25 |
reserved legal activities. |
| |
Loss of qualifying regulator status |
| |
8 (1) | Where a qualifying regulator— |
| |
(a) | ceases to be an approved regulator, or |
| |
(b) | ceases to be a designated qualifying regulator within the meaning of |
| 30 |
section 86A of the Immigration and Asylum Act 1999 by virtue of an |
| |
order under subsection (3) or (4) of that section, |
| |
| it also ceases to be a qualifying regulator. |
| |
(2) | But sub-paragraph (1) is without prejudice to a body’s ability to make a |
| |
further application under paragraph 3. |
| 35 |
(3) | If a body in the list in paragraph 2 ceases to be a qualifying regulator by |
| |
virtue of sub-paragraph (1), the Lord Chancellor must, by order, remove it |
| |
| |
| |
Amendments of the Immigration and Asylum Act 1999 (c. 33) |
| 40 |
9 | The Immigration and Asylum Act 1999 is amended in accordance with this |
| |
| |
| |
| |
|
| |
| |
10 | In section 82(1) (interpretation of Part 5), after the definition of “designated |
| |
professional body” insert— |
| |
““designated qualifying regulator” has the meaning given by |
| |
| |
11 | In section 83 (the Immigration Services Commissioner), after subsection (6) |
| 5 |
| |
“(6A) | The duties imposed on the Commissioner by subsections (3) and (5) |
| |
apply in relation to persons within section 84(2)(ba) only to the |
| |
extent that those duties have effect in relation to the Commissioner’s |
| |
functions under section 92 or 92A.” |
| 10 |
12 (1) | Section 84 (provision of immigration services) is amended as follows. |
| |
| |
(a) | after paragraph (b) insert— |
| |
“(ba) | a person authorised to provide immigration advice or |
| |
immigration services by a designated qualifying |
| 15 |
| |
(b) | in paragraph (c)(ii) after “(b)” insert “or (ba)”. |
| |
(3) | After subsection (3) insert— |
| |
“(3A) | A person’s entitlement to provide immigration advice or |
| |
immigration services by virtue of subsection (2)(ba)— |
| 20 |
(a) | is subject to any limitation on that person’s authorisation |
| |
imposed by the regulatory arrangements of the designated |
| |
qualifying regulator in question, and |
| |
(b) | does not extend to the provision of such advice or services by |
| |
the person other than in England and Wales (regardless of |
| 25 |
whether the persons to whom they are provided are in |
| |
England and Wales or elsewhere). |
| |
(3B) | In subsection (3A) “regulatory arrangements” has the same meaning |
| |
as in the Legal Services Act 2007 (see section 21 of that Act).” |
| |
13 (1) | Section 86 (designated professional bodies) is amended as follows. |
| 30 |
(2) | Omit subsections (1)(a), (d) and (e) and (4)(b). |
| |
(3) | In subsection (5)(a) omit “England and Wales or”. |
| |
| |
(a) | omit paragraph (a), and |
| |
(b) | in paragraph (b) for “it” substitute “the order”. |
| 35 |
(5) | In subsection (8) after “that a body” insert “(other than a body in England |
| |
| |
14 | After section 86 insert— |
| |
“86A | Designated qualifying regulators |
| |
(1) | “Designated qualifying regulator” means a body which is a |
| 40 |
qualifying regulator and is listed in subsection (2). |
| |
(2) | The listed bodies are— |
| |
| |
| |
| |
|
| |
| |
(b) | the Institute of Legal Executives; |
| |
(c) | the General Council of the Bar. |
| |
(3) | The Secretary of State may by order remove a body from the list in |
| |
subsection (2) if the Secretary of State considers that the body has |
| |
failed to provide effective regulation of relevant authorised persons |
| 5 |
in their provision of immigration advice or immigration services. |
| |
(4) | If a designated qualifying regulator asks the Secretary of State to |
| |
amend subsection (2) so as to remove its name, the Secretary of State |
| |
| |
(5) | Where, at a time when a body is listed in subsection (2), the body |
| 10 |
ceases to be a qualifying regulator by virtue of paragraph 8(1)(a) of |
| |
Schedule 18 to the Legal Services Act 2007 (loss of approved |
| |
regulator status), the Secretary of State must, by order, remove it |
| |
| |
(6) | If the Secretary of State considers that a body which— |
| 15 |
(a) | is a qualifying regulator, |
| |
(b) | is not a designated qualifying regulator, and |
| |
(c) | is capable of providing effective regulation of relevant |
| |
authorised persons in their provision of immigration advice |
| |
| 20 |
| ought to be designated, the Secretary of State may, by order, amend |
| |
the list in subsection (2) to include the name of that body. |
| |
(7) | If the Secretary of State is proposing to act under subsection (3) or (6), |
| |
the Secretary of State must, before doing so, consult the |
| |
| 25 |
(8) | If the Secretary of State is proposing to act under subsection (3), the |
| |
Secretary of State must, before doing so, also — |
| |
(a) | notify the body concerned of the proposal and give it a |
| |
reasonable period within which to make representations, and |
| |
(b) | consider any representations duly made. |
| 30 |
(9) | An order under subsection (3) or (6) requires the approval of the |
| |
| |
(10) | If the Legal Services Board considers that a designated qualifying |
| |
regulator is failing to provide effective regulation of relevant |
| |
authorised persons in their provision of immigration advice or |
| 35 |
immigration services, the Legal Services Board must make a report |
| |
| |
(a) | the Secretary of State, and |
| |
| |
| 40 |
“qualifying regulator” means a body which is a qualifying |
| |
regulator for the purposes of this Part of this Act by virtue of |
| |
Part 1 of Schedule 18 to the Legal Services Act 2007 (approved |
| |
regulators approved by the Legal Services Board in relation |
| |
| 45 |
“relevant authorised persons”, in relation to a designated |
| |
qualifying regulator, means persons who are authorised by |
| |
| |
| |
|
| |
| |
the designated qualifying regulator to provide immigration |
| |
advice or immigration services.” |
| |
15 (1) | Section 90 (orders by disciplinary bodies) is amended as follows. |
| |
(2) | In subsection (2), for paragraph (a) substitute— |
| |
“(a) | appearing to the Secretary of State to be established for the |
| 5 |
purpose of hearing disciplinary charges against— |
| |
(i) | members of a designated professional body, or |
| |
(ii) | persons regulated by designated qualifying |
| |
| |
(3) | In subsection (3) after “body” insert “or designated qualifying regulator”. |
| 10 |
| |
(a) | after “means” insert “— |
| |
| |
(b) | after “that body” insert “, or |
| |
(b) | a person who is authorised by the designated |
| 15 |
qualifying regulator concerned to provide |
| |
immigration advice or immigration services.” |
| |
16 | In section 166(4) (orders requiring approval by Parliament), after paragraph |
| |
| |
| 20 |
17 (1) | Schedule 5 (the Immigration Services Commissioner) is amended as follows. |
| |
(2) | In paragraph 3 (code of standards)— |
| |
(a) | after sub-paragraph (3)(a) insert— |
| |
“(aa) | a person who is authorised by a |
| |
designated qualifying regulator to |
| 25 |
provide immigration advice or |
| |
| |
(b) | in sub-paragraph (3)(b) after “paragraph (a)” insert “or (aa)”, |
| |
(c) | after sub-paragraph (6)(a) insert— |
| |
“(aa) | each of the designated qualifying |
| 30 |
| |
(d) | omit sub-paragraph (6)(b). |
| |
(3) | In paragraph 4 (extension of scope of the code)— |
| |
(a) | omit sub-paragraph (2)(b), |
| |
(b) | in sub-paragraph (3)(a) omit “England and Wales or”, and |
| 35 |
(c) | omit sub-paragraph (4)(a). |
| |
(4) | In paragraph 5 (investigation of complaints)— |
| |
(a) | in sub-paragraph (3), for the words from “but” to the end |
| |
| |
| “but not if the complaint is excluded by sub-paragraph |
| 40 |
| |
(b) | after that sub-paragraph insert— |
| |
“(3A) | A complaint is excluded if— |
| |
| |
| |
|
