Immigration and Asylum Act 1999 (c. 33)

(The document as of February, 2008)

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Extension of scope of the Code

4 (1) The Secretary of State may by order provide for the provisions of the Code, or such provisions of the Code as may be specified by the order, to apply to--

(a) persons authorised by any designated professional body to practise as a member of the profession whose members are regulated by that body; and

(b) persons working under the supervision of such persons.

(2) If the Secretary of State is proposing to act under sub-paragraph (1) he must, before doing so, consult--

(a) the Commissioner;

(b) the Legal Services Ombudsman, if the proposed order would affect a designated professional body in England and Wales;

(c) the Scottish Legal Services Ombudsman, if the proposed order would affect a designated professional body in Scotland;

(d) the lay observers appointed under Article 42 of the [S.I. 1976/582 (N.I. 12).] Solicitors (Northern Ireland) Order 1976, if the proposed order would affect a designated professional body in Northern Ireland.

(3) An order under sub-paragraph (1) requires the approval of--

(a) the Lord Chancellor, if it affects a designated professional body in England and Wales or Northern Ireland;

(b) the Scottish Ministers, if it affects a designated professional body in Scotland.

(4) Before deciding whether or not to give his approval under sub-paragraph (3)(a), the Lord Chancellor must consult--

(a) the designated judges, if the order affects a designated professional body in England and Wales;

(b) the Lord Chief Justice of Northern Ireland, if it affects a designated professional body in Northern Ireland.

(5) Before deciding whether or not to give their approval under sub-paragraph (3)(b), the Scottish Ministers must consult the Lord President of the Court of Session.

Investigation of complaints

5 (1) The Commissioner must establish a scheme ("the complaints scheme") for the investigation by him of relevant complaints made to him in accordance with the provisions of the scheme.

(2) Before establishing the scheme or altering it, the Commissioner must consult--

(a) each of the designated professional bodies; and

(b) such other persons appearing to him to represent the views of persons engaged in the provision of immigration advice or immigration services as he considers appropriate.

(3) A complaint is a relevant complaint if it relates to--

(a) the competence or fitness of a person to provide immigration advice or immigration services,

(b) the competence or fitness of a person employed by, or working under the supervision of, a person providing immigration advice or immigration services,

(d) an alleged breach of one or more of the Commissioner's rules by a person to whom they apply, or

(e) an alleged breach, by a person who falls within paragraph (c), (d), (e) or (f) of section 84(2), of one or more of the rules of the relevant regulatory body,

but not if it relates to a person who is excluded from the application of subsection (1) of section 84 by subsection (6) of that section.

(4) The Commissioner may, on his own initiative, investigate any matter which he would have power to investigate on a complaint made under the complaints scheme.

(5) In investigating any such matter on his own initiative, the Commissioner must proceed as if his investigation were being conducted in response to a complaint made under the scheme.

6 (1) The complaints scheme must provide for a person who is the subject of an investigation under the scheme to be given a reasonable opportunity to make representations to the Commissioner.

(2) Any person who is the subject of an investigation under the scheme must--

(a) take such steps as are reasonably required to assist the Commissioner in his investigation; and

(b) comply with any reasonable requirement imposed on him by the Commissioner.

(3) If a person fails to comply with sub-paragraph (2)(a) or with a requirement imposed under sub-paragraph (2)(b) the Commissioner may--

(a) in the case of a registered person, cancel his registration;

(b) in the case of a person certified by the Commissioner as exempt under section 84(4)(a), withdraw his exemption; or

(c) in the case of a person falling within paragraph (c), (d), (e) or (f) of section 84(2), refer the matter to the relevant regulatory body.

Power to enter premises

7 (1) This paragraph applies if--

(a) the Commissioner is investigating a complaint under the complaints scheme;

(b) the complaint falls within paragraph 5(3)(a), (b) or (d); and

(c) there are reasonable grounds for believing that particular premises are being used in connection with the provision of immigration advice or immigration services by a registered person.

(2) The Commissioner, or a member of his staff authorised in writing by him, may enter the premises at reasonable hours.

(3) Sub-paragraph (2) does not apply to premises to the extent to which they constitute a private residence.

(4) A person exercising the power given by sub-paragraph (2) ("the investigating officer") may--

(a) take with him such equipment as appears to him to be necessary;

(b) require any person on the premises--

(i) to produce any document which he considers relates to any matter relevant to the investigation; and

(ii) if the document is produced, to provide an explanation of it;

(d) take copies of, or extracts from, any document which is produced;

(e) require any information which is held in a computer and is accessible from the premises and which the investigating officer considers relates to any matter relevant to the investigation, to be produced in a form--

(i) in which it can be taken away; and

(ii) in which it is visible and legible.

(5) Instead of exercising the power under sub-paragraph (2), the Commissioner may require such person as he may determine ("his agent") to make a report on the provision of immigration advice or immigration services from the premises.

(6) If the Commissioner so determines, his agent may exercise the power conferred by sub-paragraph (2) as if he were a member of the Commissioner's staff appropriately authorised.

(7) If a registered person fails without reasonable excuse to allow access under sub-paragraph (2) or (6) to any premises under his occupation or control, the Commissioner may cancel his registration.

(8) The Commissioner may also cancel the registration of a registered person who--

(a) without reasonable excuse fails to comply with a requirement imposed on him under sub-paragraph (4);

(b) intentionally delays or obstructs any person exercising functions under this paragraph; or

Determination of complaints

8 (1) On determining a complaint under the complaints scheme, the Commissioner must give his decision in a written statement.

(2) The statement must include the Commissioner's reasons for his decision.

(3) A copy of the statement must be given by the Commissioner to--

(a) the person who made the complaint; and

(b) the person who is the subject of the complaint.

9 (1) On determining a complaint under the complaints scheme, the Commissioner may--

(a) if the person to whom the complaint relates is a registered person or a person employed by, or working under the supervision of, a registered person, record the complaint and the decision on it for consideration when that registered person next applies for his registration to be continued;

(b) if the person to whom the complaint relates is a registered person or a person employed by, or working under the supervision of, a registered person and the Commissioner considers the matter sufficiently serious to require immediate action, require that registered person to apply for continued registration without delay;

(c) if the person to whom the complaint relates falls within paragraph (c), (d), (e) or (f) of section 84(2), refer the complaint and his decision on it to the relevant regulatory body;

(d) if the person to whom the complaint relates is certified by the Commissioner as exempt under section 84(4)(a) or is employed by, or working under the supervision of, such a person, consider whether to withdraw that person's exemption;

(e) lay before the Tribunal a disciplinary charge against a relevant person.

(2) Sub-paragraph (3) applies if--

(a) the Tribunal is considering a disciplinary charge against a relevant person; and

(b) the Commissioner asks it to exercise its powers under that sub-paragraph.

(3) The Tribunal may give directions (which are to have effect while it is dealing with the charge)--

(a) imposing such restrictions in connection with the provision--

(i) by the relevant person, or

(ii) by any person employed by him or working under his supervision,

of immigration advice or immigration services as the directions may specify; or

(b) prohibiting him, or any person employed by him or working under his supervision, from providing immigration advice or immigration services.

(4) "Relevant person" means a person providing immigration advice or immigration services who is--

(a) a registered person;

(b) a person employed by, or working under the supervision of, a registered person;

(d) a person working under the supervision of a member or employee of such a body;

(e) a person certified by the Commissioner as exempt under section 84(4)(a);

(f) a person to whom section 84(4)(d) applies; or

(g) a person employed by, or working under the supervision of, a person to whom paragraph (e) or (f) applies.

Complaints referred to designated professional bodies

10 (1) This paragraph applies if the Commissioner refers a complaint to a designated professional body under paragraph 9(1)(c).

(2) The Commissioner may give directions setting a timetable to be followed by the designated professional body--

(a) in considering the complaint; and

(b) if appropriate, in taking disciplinary proceedings in connection with the complaint.

(3) In making his annual report to the Secretary of State under paragraph 21, the Commissioner must take into account any failure of a designated professional body to comply (whether wholly or in part) with directions given to it under this paragraph.

(4) Sub-paragraph (5) applies if the Commissioner or the Secretary of State considers that a designated professional body has persistently failed to comply with directions given to it under this paragraph.

(5) The Commissioner must take the failure into account in determining whether to make a report under section 86(9)(b) and the Secretary of State must take it into account in determining whether to make an order under section 86(2).

Part II Commissioner's Status, Remuneration and Staff etc

Status

11 (1) The Commissioner is to be a corporation sole.

(2) The Commissioner and the members of the Commissioner's staff are not to be regarded as the servants or agents of the Crown or as having any status, privilege or immunity of the Crown.

Period of office

12 (1) The Commissioner--

(a) is to hold office for a term of five years; but

(b) may resign at any time by notice in writing given to the Secretary of State.

(2) The Secretary of State may dismiss the Commissioner--

(a) on the ground of incapacity or misconduct; or

(b) if he is satisfied--

(i) that he has been convicted of a criminal offence; or

(ii) that a bankruptcy order has been made against him, or his estate has been sequestrated, or he has made a composition or arrangement with, or granted a trust deed for, his creditors.

(3) The Commissioner is eligible for re-appointment when his term of office ends.

Terms and conditions of appointment

13 Subject to the provisions of this Schedule, the Commissioner is to hold office on such terms and conditions as the Secretary of State may determine.

Remuneration, expenses and pensions

14 (1) There is to be paid to the Commissioner such remuneration and expenses as the Secretary of State may determine.

(2) The Secretary of State may pay, or provide for the payment of, such pensions, allowances or gratuities to or in respect of the Commissioner as he may determine.

Compensation

15 If a person ceases to be the Commissioner, otherwise than when his term of office ends, and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, the Secretary of State may make a payment to him of such amount as the Secretary of State may determine.

Deputy Commissioner

16 (1) The Secretary of State must appoint a person to act as Deputy Commissioner.

(2) During any vacancy in the office of Commissioner, or at any time when he is unable to discharge his functions, the Deputy Commissioner may act in his place.

(3) Paragraphs 11(2) and 12 to 15 apply to the Deputy Commissioner as they apply to the Commissioner.

Staff

17 (1) Subject to obtaining the approval of the Secretary of State as to numbers and terms and conditions of service, the Commissioner may appoint such staff as he considers appropriate.

(2) Subject to obtaining the approval of the Secretary of State, the Commissioner may pay, or provide for the payment of, such pensions, allowances or gratuities (including by way of compensation for loss of office or employment) to or in respect of his staff as he considers appropriate.

(3) Any functions of the Commissioner may, to the extent authorised by him, be performed by the Deputy Commissioner or any of his staff.

(4) The [1969 c. 57.] Employers' Liability (Compulsory Insurance) Act 1969 is not to require insurance to be effected by the Commissioner.

Expenditure

18 The Secretary of State may pay to the Commissioner--

(a) any expenses incurred or to be incurred by the Commissioner in respect of his staff; and

(b) with the approval of the Treasury, such other sums for enabling the Commissioner to perform his functions as the Secretary of State thinks fit.

Receipts

19 (1) Subject to any general or specific directions given to him by the Secretary of State, sums received by the Commissioner in the exercise of his functions must be paid to the Secretary of State.

(2) Sums received by the Secretary of State under this paragraph must be paid into the Consolidated Fund.

(3) The approval of the Treasury is required for any direction given under this paragraph.

Accounts and records

20 (1) The Commissioner must--

(a) keep proper accounts and proper records in relation to his accounts;

(b) prepare a statement of accounts for each financial year; and

(c) send copies of the statement to the Secretary of State and to the Comptroller and Auditor General on or before the specified date.

(2) The statement of accounts must be in such form as the Secretary of State may, with the approval of the Treasury, direct.

(3) The Comptroller and Auditor General must--

(a) examine, certify and report on each statement received by him under this paragraph; and

(b) lay copies of each statement and of his report before each House of Parliament.

(4) "Financial year" means the period of 12 months beginning with 1st April.

(5) "Specified date" means--

(a) 31st August next following the end of the year to which the statement relates; or

(b) such earlier date after the end of that year as the Treasury may direct.

Annual report

21 (1) The Commissioner must, as soon as is practicable after the end of each financial year, report to the Secretary of State on the performance of his functions in that year.

(2) The report must, in particular, set out the Commissioner's opinion as to the extent to which each designated professional body has provided effective regulation of its members in their provision of immigration advice or immigration services.

(3) The Secretary of State must lay a copy of the report before each House of Parliament.

(4) "Financial year" has the same meaning as in paragraph 20.

Proof of instruments

22 A document purporting to be an instrument issued by the Commissioner and to be signed by or on behalf of the Commissioner is to be received in evidence and treated as such an instrument unless the contrary is shown.

Disqualification for House of Commons

23 In Part III of Schedule 1 to the [1975 c. 24.] House of Commons Disqualification Act 1975 (offices disqualifying for membership), insert at the appropriate place--

" The Immigration Services Commissioner

The Deputy Immigration Services Commissioner " .

Disqualification for Northern Ireland Assembly

24 In Part III of Schedule 1 to the [1975 c. 25.] Northern Ireland Assembly Disqualification Act 1975 (offices disqualifying for membership), insert at the appropriate place--

" The Immigration Services Commissioner

The Deputy Immigration Services Commissioner " .

The Parliamentary Commissioner Act 1967 (c. 13)

25 In Schedule 2 of the Parliamentary Commissioner Act 1967 (departments and authorities subject to investigation) insert, at the appropriate place, "The Immigration Services Commissioner".

Section 85(3).

SCHEDULE 6 Registration

Applications for registration

1 (1) An application for registration under section 84(2)(a) or (b) must--

(a) be made to the Commissioner in such form and manner, and

(b) be accompanied by such information and supporting evidence,

as the Commissioner may from time to time determine.

(2) When considering an application for registration, the Commissioner may require the applicant to provide him with such further information or supporting evidence as the Commissioner may reasonably require.

Registration

2 (1) If the Commissioner considers that an applicant for registration is competent and otherwise fit to provide immigration advice and immigration services, he must register the applicant.

(2) Registration may be made so as to have effect--

(a) only in relation to a specified field of advice or services;

(b) only in relation to the provision of advice or services to a specified category of person;

(d) only in specified circumstances.

Review of qualifications

3 (1) At such intervals as the Commissioner may determine, each registered person must submit an application for his registration to be continued.

(2) Different intervals may be fixed by the Commissioner in relation to different registered persons or descriptions of registered person.

(3) An application for continued registration must--

(a) be made to the Commissioner in such form and manner, and

(b) be accompanied by such information and supporting evidence,

as the Commissioner may from time to time determine.

(4) When considering an application for continued registration, the Commissioner may require the applicant to provide him with such further information or supporting evidence as the Commissioner may reasonably require.

(5) If the Commissioner considers that an applicant for continued registration is no longer competent or is otherwise unfit to provide immigration advice or immigration services, he must cancel the applicant's registration.

(6) Otherwise, the Commissioner must continue the applicant's registration but may, in doing so, vary the registration--

(a) so as to make it have limited effect in any of the ways mentioned in paragraph 2(2); or

(b) so as to make it have full effect.

(7) If a registered person fails, without reasonable excuse--

(a) to make an application for continued registration as required by sub-paragraph (1) or by a direction given by the Tribunal under section 89(3)(b), or

(b) to provide further information or evidence under sub-paragraph (4),

the Commissioner may cancel the person's registration as from such date as he may determine.

Disqualification of certain persons

4 A person convicted of an offence under section 25 or 26(1)(d) or (g) of the 1971 Act is disqualified for registration under paragraph 2 or for continued registration under paragraph 3.

Fees

5 (1) The Secretary of State may by order specify fees for the registration or continued registration of persons on the register.

(2) No application under paragraph 1 or 3 is to be entertained by the Commissioner unless it is accompanied by the specified fee.

Open registers

6 (1) The register must be made available for inspection by members of the public in a legible form at reasonable hours.

(2) A copy of the register or of any entry in the register must be provided--

(a) on payment of a reasonable fee;

(b) in written or electronic form; and

(3) Sub-paragraphs (1) and (2) also apply to--

(a) the record kept by the Commissioner of the persons to whom he has issued a certificate of exemption under section 84(4)(a); and

(b) the record kept by the Commissioner of the persons against whom there is in force a direction given by the Tribunal under section 89(8).

Section 87(5).

SCHEDULE 7 The Immigration Services Tribunal

Members

1 (1) The Tribunal is to consist of such number of members as the Lord Chancellor may determine.

(2) The members are to be appointed by the Lord Chancellor.

(3) A person may be appointed as a member only if--

(a) he is legally qualified; or

(b) he appears to the Lord Chancellor to have had substantial experience in immigration services or in the law and procedure relating to immigration.

The President

2 The Tribunal is to have a President appointed by the Lord Chancellor from among those of its members who are legally qualified.

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