Powers and duties

Commissioner's entry into premises

  1. The Commissioner has power to enter premises as specified in Schedule 5 paragraph 7 as amended by s.140 of the Nationality, Immigration and Asylum Act 2002 and s.38 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (see Annex B); these powers only relate to complaints about:
    1. the competence or fitness of a person to provide immigration advice or immigration services
    2. the competence or fitness of a person acting on behalf of a person providing immigration advice or immigration services
    3. alleged breaches of the Commissioner's Rules and/or Code of Standards
  2. The above powers of entry do not apply to complaints alleging a breach of the Commissioner's Code of Standards by a person regulated by a Designated Professional Body or equivalent EEA regulatory body or the rules of that relevant regulatory body.
  3. The powers of entry can be used by the Commissioner or by his/her staff who have been authorised in writing by the Commissioner to so enter. In addition, where the Commissioner has authorised others to act as his/her agent, investigating complaints on his/her behalf, that person or persons is/are also authorised to use the Commissioner's powers, provided that they have been appropriately authorised as if they were a member of the Commissioner's staff.
  4. The Commissioner has the power:
    1. to enter premises without force at a reasonable time, to take copies of any document or information held on computer
    2. to take into the premises any equipment thought necessary
  5. The Commissioner cannot enter premises to the extent that they constitute a private residence.

Duties on the person who is the subject of a complaint

  1. Any person who is the subject of complaint must:
    1. comply with any reasonable requirement imposed on him/her by the Commissioner
    2. take such steps as are reasonably required to assist the Commissioner in his/her investigation
  2. A registered or exempt person must:
    1. allow access to their premises (see paragraphs 41 to 45 above) for the investigation of any relevant complaint
    2. comply with the requirements of the Commissioner or his/her staff or agents when they are on those premises investigating a complaint
    3. not delay or obstruct the Commissioner or his/her staff or agents
  3. Failure to comply with paragraphs 46 and 47 above without reasonable excuse may result in the Commissioner imposing sanctions up to and including the cancellation of registration or removal of exemption, or requesting that similar sanctions be imposed by the Immigration Services Tribunal.

The Immigration Services Tribunal

  1. The Immigration Services Tribunal ('the Tribunal') was established under s.87 of the Immigration and Asylum Act 1999 to hear appeals against 'relevant decisions' made by the Commissioner and to consider disciplinary charges that he/she may bring against advisers.
  2. Only a relevant decision made by or on behalf of the Commissioner can be appealed to the Tribunal. As stated in section 87 of the Act as amended, a decision is relevant if it is a decision:
    • to refuse an application for registration made under paragraph 1 of Schedule 6; to withdraw an exemption given under section 84(4)(a)
    • under paragraph 2(2) of that Schedule to register with limited effect or to refuse an application for continued registration made under paragraph 3 of that Schedule
    • to vary a registration on an application under paragraph 3 or 3A of that schedule.
  3. The Tribunal also has the function of hearing disciplinary charges laid by the Commissioner under paragraph 9(1)(e) of Schedule 5. Where the Tribunal upholds such a charge, it can impose a range of sanctions depending on the status of the person charged including:
    • direct the Commissioner to record the charge for consideration on application for continued registration
    • direct the person to seek continued registration without delay
    • direct the Commissioner to consider whether to withdraw exemption
    • direct the restriction, suspension or prohibition of the provision of immigration advice or immigration services including advice or services provided by employees or those working under their supervision
  4. The Tribunal can also give directions requiring the Commissioner to recover a penalty and for clients to recover fees from those who have been found by the Tribunal to have asked for unreasonable fees. In addition the Tribunal may also direct the person charged to pay a penalty, in accordance with Section 89 of the Act.
  5. If requested by the Commissioner, the Tribunal may give directions imposing restrictions on any relevant person or any person employed by them or working under their supervision, prohibiting them from providing immigration services or advice while they are dealing with the charge against them.
  6. Advisers or their representatives requiring further information about the Tribunal or their procedures should contact the Tribunal at:
    Immigration Services Tribunal
    Procession House
    55 Ludgate Hill
    London EC4M 7JW
    www.immigrationservicestribunal.gov.uk

Right to appeal the Commissioner's decision

  1. A complainant has no formal right of appeal to the Commissioner in respect of the Commissioner's dismissal of a complaint. This is separate from the complainant bringing forward to the Commissioner new information for his/her consideration. Having considered this new information,the Commissioner may, at his/her discretion, decide to reopen the case.
  2. Complainants have the right to bring any concerns they may have regarding the Commissioner's decision-making process via their MP to:
    The Parliamentary and Health Service Ombudsman
    Millbank Tower
    Millbank
    London SW1P 4QP
    www.ombudsman.org.uk
  3. The complainant and the adviser who is the subject of the complaint may challenge the Commissioner's decision-making process by way of judicial review.

Complaints about persons regulated by Designated Professional Bodies

(see Annex C for full list and Annex E for a flow chart of the relevant complaint process)

  1. Members of Designated Professional Bodies are required to work in accordance with the standards set by their respective professional body. Failure to act in accordance with the rules of the profession can result in the professional body taking disciplinary action against them.
  2. This disciplinary action in serious cases may result in the individual losing the right to be a member of the profession and/or the right to practice.
  3. The OISC can investigate all relevant complaints in respect of the provision of immigration advice and services, whether or not they concern a member of one of the Designated Professional Bodies. However, only a Designated Professional Body can discipline and impose penalties on those regulated by them.
  4. Complaints made to the OISC against such persons will normally be referred to the relevant Designated Professional Body for investigation and determination. However, the Commissioner retains the right to exercise his/her powers of investigation where he/she deems it to be the appropriate course of action. In such cases, the Commissioner will inform the Designated Professional Body of his/her reasons.
  5. The Commissioner will make an initial assessment of any complaint regarding a member of a Designated Professional Body. The Commissioner may identify areas of a complaint that he/she believes require investigation. It may be necessary for the Commissioner to make some enquiries as part of his/her initial assessment of the complaint, but, as a matter of policy, efforts will be made to limit duplication and delay prior to passing it on. Following this assessment he/she will decide whether to refer the case to the Designated Professional Body for it to undertake an investigation and report back to the complainant and the Commissioner on its findings.
  6. Normally the Designated Professional Body will not initiate its complaints procedure until the Commissioner has formally referred the complaint to it.
  7. If there is a formal complaint, the Commissioner will inform the complainant in writing as soon as possible of which Designated Professional Body will be investigating the complaint and provide contact details for that body. The OISC will also provide the complainant with copies of its letter to the Designated Professional Body referring the complaint to that body.
  8. When referring a complaint to a Designated Professional Body, the Commissioner may set a timetable to be followed by that body with regard to the investigation of that complaint. However, before a timetable is set, the Commissioner will first consult with the body as to what would be a reasonable timetable, taking note of the nature and complexity of the complaint and the statutory framework within which the body must operate.
  9. Once a complaint is referred to a Designated Professional Body that body will be responsible for investigating and determining that complaint.
  10. The Commissioner has Memorandums of Understanding with relevant Designated Professional Bodies that provide for arrangements to be put in place to ensure that the Commissioner is kept informed of the progress of investigations and outcomes.
  11. Once a complaint has been referred to a Designated Professional Body the Commissioner will monitor the investigation so as to ensure that the complaint is handled fairly, thoroughly, correctly and in a timely fashion. During the course of the investigation the Commissioner may provide comments to the investigating body.
  12. The Commissioner may contact the complainant to discuss the investigation. The complainant can also contact the Commissioner to discuss the case at any stage during the course of the investigation.
  13. At the conclusion of the investigation of a complaint by the relevant body, the Commissioner will consider the outcome of the case and, where he/she deems it appropriate, will comment to that body as to the decision reached.
  14. The Commissioner may ask the investigating Designated Professional Body to carry out further investigations. On such occasions, having considered the Commissioner's comments, the investigating body will decide whether to carry out further investigations.
  15. Notwithstanding the above, the Commissioner reserves the right to exercise his/her powers of investigation on all relevant complaints.
  16. Complainants can challenge decisions made by a Designated Professional Body, except ILEX (see below), by means of a complaint to the relevant ombudsman.

In England and Wales this is:
Office of the Legal Services Ombudsman
3rd Floor
Sunlight House
Quay Street
Manchester M3 3JZ
www.olso.org

Note: challenges to decisions made by the Institute of Legal Executives (ILEX) Investigation Committee is by appeal to their Appeals Committee. Information on this process can be obtained by contacting ILEX directly at www.ilex.org.uk.

In Scotland this is:
The Scottish Legal Services Ombudsman
17 Waterloo Place
Edinburgh EH1 3DL
www.slso.org.uk

In Northern Ireland such complaints should be referred to:
The Lay Observer for N.I.
4th Floor
Brookmount Buildings
Fountain Street
Belfast BT1 5EF

  1. In making his/her annual report to the Secretary of State, the Commissioner must take into account any failure on the part of a professional body to provide effective regulation of its members.
  2. Details of the relevant UK Designated Professional Bodies are at Annex C.

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