The Complaints Scheme

4. The Complaints Scheme is applicable to all persons providing immigration advice or immigration services, except for those persons described in paragraph 14 below.
5. As in the Act, 'immigration advice' for the purposes of this Scheme means advice which:
   1. relates to a particular individual
   2. is given in connection with one or more relevant matters
   3. 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
   4. is not given in connection with representing an individual before a court in criminal proceedings or matters ancillary to criminal proceedings
6. As in the Act, 'immigration services' for the purposes of this Scheme means the making of representations on behalf of a particular individual:
   1. in civil proceedings before a court, tribunal or adjudicator in the United Kingdom
   2. in correspondence with a Minister of the Crown or government department in connection with one or more relevant matters

Complaints with which the OISC can deal

7. The Scheme only relates to 'relevant complaints'. As stated in the Act, a complaint is relevant if it relates to:
   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 either the Commissioner's Code of Standards or Rules by those to whom they apply
   4. an alleged breach by a person regulated by a Designated Professional Body or equivalent EEA regulatory body of the rules of the relevant regulatory body
8. A complaint may be received from any source.
9. A third party, for example a friend, a solicitor or a voluntary organisation, may make a complaint on behalf of a complainant. In such cases it will be assumed that unless there is evidence to the contrary, the third party has been authorised to make the complaint. Third parties who through their own work have knowledge of the actions of an adviser may also make complaints independently.
10. Complaints should normally be made within six months of the complainant becoming aware of the grounds for complaint. The Commissioner is not, however, inhibited in his/her investigations by the timing of when the alleged incident took place.
11. The Commissioner will not reimburse any fees, expenses or cost involved in bringing a complaint by any person or body.
12. As detailed in the Act, the Commissioner may also make investigations on his/her own initiative into matters which could form the subject of a complaint. In such circumstances the investigation will be conducted as if a complaint had been made, and must be investigated in accordance with this Complaints Scheme.

Complaints with which the OISC cannot deal

13. The OISC cannot deal with a complaint if it relates to someone who holds office under the Crown when acting in that capacity, or is employed by, or for the purposes of, a government department, when acting in that capacity, or is acting under the control of a government department or is otherwise exercising functions on behalf of the Crown. The Commissioner cannot address complaints made to him/her about the Home Office or Asylum and Immigration Tribunal (AIT) and their staff.
14. Ordinarily the Commissioner will not deal with complaints that are already the subject of ongoing legal action. However, the Commissioner may, at his/her discretion, act on such complaints. In any event, he/she will consider taking such action when he/she is made aware of the conclusion of such legal action, but may also, if he/she considers it appropriate, obtain such consent as may be necessary to initiate a complaint.

Making a complaint

15. OISC complaints forms containing information about the Scheme are available in a range of languages from:
    • the Office of the Immigration Services Commissioner
    • the OISC website on www.oisc.gov.uk
    • OISC regulated advisers
    • community advice organisations
16. To be valid a complaint does not, however, need to be made on an OISC complaints form. While an oral complaint can be received, it is expected that complaints will be made in writing. Relevant documents should be included when submitting a complaint.
17. OISC staff can advise on how to complete the complaints form but, because of the need to maintain the Commissioner's independence, they cannot draft the complaint.

Where to send complaints

18. Complaints should be sent to the Commissioner at:

Office of the Immigration Services Commissioner
Complaints Team
5th Floor
Counting House
53 Tooley Street
London
SE1 2QN

or by email to info@oisc.gov.uk

19. The Commissioner will accept an oral complaint, but a complainant will always be encouraged to confirm their complaint in writing.
20. If the details provided are sufficient, then the letter, e-mail, etc. may form the basis of a complaint. Some complainants may be contacted by OISC staff to obtain further details of their complaint and the circumstances surrounding it before the matter is taken further.

Confidentiality and process

21. The Commissioner will not disclose the identity of the complainant save to the extent that such disclosure is necessary to enable the person who is the subject of the complaint to make representations or in other such circumstances as necessary in order to pursue any legal action that may arise from the complaint.
22. The Commissioner will comply with the relevant provisions of the Data Protection Act 1998.
23. Should the complaint refer to matters that indicate a criminal offence may have occurred, the Commissioner may need to discuss the complaint with the police or other authority. In such instances, he/she will, if necessary, disclose the identity of the complainant to the relevant authority. The Commissioner will also decide whether in these circumstances his/her own investigation should be suspended.
24. It is not the Commissioner's policy to notify either the Home Office or the Asylum and Immigration Tribunal (AIT) of his/her investigation or the outcome of a specific complaint unless they are the complainant. Making a complaint should not have any effect on the complainant's immigration status. However the Commissioner will, if asked by the immigration authorities, confirm whether a complaint is being or has been investigated.

Standard of proof

25. In determining complaints, the Commissioner's usual standard of proof is the civil standard, that is the balance of probabilities. However, if dishonest/illegal activity is alleged, the Commissioner will apply the criminal standard of proof to that element of the complaint, being beyond reasonable doubt.

How complaints will be addressed

26. The OISC aims to acknowledge a complaint in writing within five working days of its receipt, explaining how it will be dealt with. If the Commissioner cannot deal with the particular complaint, the complainant will be informed accordingly.
27. The Commissioner will at his/her discretion decide whether a complaint is to be investigated.
28. The Commissioner can decide at any stage during the investigation that there is no case to answer. When this is the case, he/she will write to both the complainant and the subject of the complaint informing them of this as soon as possible.
29. The Commissioner will write to the subject of the complaint, notifying them that a complaint has been made against them and including the alleged breaches of the Commissioner's Codes of Standards or Rules. This letter, called a Statement of Complaint, will also contain a date by which the Commissioner must receive their written response to the allegations.
30. Having had sight of available evidence, and noting that the nature of the alleged breach or breaches is such that it requires the criminal standard of proof - i.e. beyond reasonable doubt - the Commissioner may provide the person complained of with a reasonable opportunity to make oral representations. In such circumstances, the Commissioner will invite the respondent to make oral representations in respect of the complaint or part of a complaint.
31. There may be a need for the Commissioner to undertake further enquiries. These may result in requests for further written information or persons to be interviewed. Where appropriate, the parties will be afforded the opportunity to further respond to information that may be disclosed during the investigation.
32. The Commissioner will make a decision based on the evidence before him/her.

Notification of the outcome

33. The Commissioner will notify the parties to the complaint of his/her decision by way of a written statement including the reasons for the decision.
34. Where complaints are made by a third party, the person(s) involved in the matter complained of will also be informed of the outcome, if their identity has been made known to the Commissioner.

Possible action following a complaint

Practice points

35. During the course of a complaint investigation, the Commissioner may identify areas of improvement-areas where the standard of service or a particular process could be improved-even if the issues are not serious enough to warrant the upholding of a breach of the Code or Rules or that merit any sanction. In such instances the Commissioner may choose to raise 'practice points'.
36. Practice points are recommendations of good practice that the Commissioner expects an adviser to implement. It will be expected that their implementation would be checked at the adviser's next audit to ensure compliance. If the same problem is repeated at a later date the Commissioner may, at his/her discretion, consider whether the adviser is in his/her opinion fit to provide immigration advice or services. Where this results in a 'relevant decision', this may be appealed to the Immigration Services Tribunal (see paragraph 49).
37. The Commissioner's aim in using practice points is to assist advisers to improve their standards in a manner that is supportive and not punitive. Their use does not constitute a 'relevant decision' under section 87 of the Act and consequently cannot be appealed to the Immigration Services Tribunal. When raised in the context of a determination that upholds a breach of another Code or Rule, the issue that gave rise to the practice point will be treated separately.

Actions by the Commissioner if complaints are substantiated

38. On determining a complaint, the Commissioner may apply the following sanctions:
    1. Where the complaint is against a registered person or persons employed by or under the supervision of a registered person, record the fact that the complaint has been made and the outcome of the investigation. This will then be considered if and when the registered person next applies for their registration to be continued
    2. Where the complaint is against a registered person or persons employed by or under the supervision of a registered person, and the complaint is considered to be sufficiently serious to require immediate action, the registered person will be required to apply immediately for continued registration. The complaint and the matters raised during its determination will be taken into account in determining the reapplication for registration
    3. If the complaint relates to a person the Commissioner has granted a certificate of exemption, or is working for or under the supervision of an exempted person, consideration will be given as to whether the exemption should be withdrawn
    4. With respect to any relevant person subject to a relevant complaint, other than those regulated by the professional bodies, the Commissioner can lay a disciplinary charge against them before the Immigration Services Tribunal. This would generally apply only to the most serious matters or where there was a history of complaints. 'Relevant person' includes all persons providing immigration advice or immigration services. This includes those who have been exempted by the Immigration Services Commissioner or are in a category of persons subject to a Ministerial Order under s. 84 (4) (d) of the Immigration and Asylum Act 1999.
39. If the complaint is made against a person who:
    1. is authorised to practise and regulated by a Designated Professional Body or works under the supervision of such a person
    2. is registered or authorised by a person in another EEA State, responsible for the regulation of the provision of such advice and services or exempted by them
    3. is authorised by a body in another EEA State, which is responsible for the regulation of legal services within that state
    4. is employed or supervised by someone regulated by a person or body within another EEA state
40. The Commissioner can refer the complaint and his/her decision to the relevant regulatory body as detailed in the section on Designated Professional Bodies (see paragraphs 58 to 75 below).

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