ANNEX
IMMIGRATION AND ASYLUM BILL
Memorandum by the Home Office
PART V: IMMIGRATION ADVISERS AND IMMIGRATION SERVICE
PROVIDERS
SCHEDULE 5, PARAGRAPH 1:
POWER TO MAKE RULES GOVERNING PROFESSIONAL PRACTICE, CONDUCT OR
DISCIPLINE OF REGISTERED IMMIGRATION ADVISERS
| Power conferred on: |
The Immigration Services Commissioner |
| Power exercisable by: | Rules made by statutory instrument
|
| Parliamentary procedure: | Negative resolution (either House of Parliament)
|
| Other relevant provisions: | Clause 149 of the Bill
|
193. Paragraph 1 of Schedule 5 to the Bill enables
the Immigration Services Commissioner, appointed to regulate immigration
advisers under Part V of the Bill, to make rules regulating any
aspect of the professional practice, conduct or discipline of
persons registered by him and their employees or those supervised
by them, in connection with their provision of immigration advice
or services. Under subparagraph (2) the Commissioner is required
to consult those providing immigration advice or services before
making or altering any rules. The rules may be taken into account
by the Commissioner in determining whether a registered person
is competent or otherwise fit to provide immigration advice or
services (subparagraph (3)). Subparagraph (4) provides that, in
particular, the rules may require the keeping of accounts or the
obtaining of indemnity insurance.
194. It is considered appropriate that the Commissioner
have the power to make rules governing the provision of immigration
advice and services by registered persons, given that the matters
that they will have to deal with will be extensive It would be
inappropriate for the level of detail required to be on the face
of the Bill; and the rules may need amendment in the light of
experience and circumstances.
195. As the Bill stands, the rules are exercisable
by statutory instrument subject to negative procedure. This is
the effect of clause 154. However whether this is appropriate
is under consideration. Consideration is being given to whether
the model adopted in the Financial Services Act 1986 for the legislative
functions of a designated agency under that Act is not more appropriate.
That is to say, the power being exercisable by instrument in writing,
with a requirement for the printing of the same and it being made
available to the public with or without payment (see paragraphs
6 to 9 of Schedule 9 to that Act).
SCHEDULE 5, PARAGRAPH 2:
POWER TO ISSUE CODE OF STANDARDS FOR IMMIGRATION ADVISERS
| Power conferred on: |
The Immigration Services Commissioner |
| Exercisable by: | Publication in such form or manner as the Secretary of State may direct
|
| Parliamentary procedure: | None
|
| Other relevant provisions: | Clause 73(5) and Paragraphs 3 and 4 of Schedule 5
|
196. The Immigration Services Commissioner, appointed
to regulate immigration advisers under Part V of the Bill, is
given power by paragraph 2 of Schedule 5 to issue a Code of Standards.
This Code of Standards sets standards which those providing immigration
advice or immigration services (other than a person authorised
to do so by a designated professional body or a person employed
by or working under the supervision of such a person) is expected
to meet. Those subject to the Code are under a duty to comply
with its provisions (paragraph 2(4) of Schedule 5). The Commissioner
is required to consult before publishing the Code or amending
it (paragraph 2(6)). Under paragraph 3 of Schedule 5 the Secretary
of State is able to extend the provisions of the Code so as to
apply as well to persons authorised through designated professional
bodies. The Commissioner is empowered to investigate complaints
of alleged breaches of the Code (paragraph 4 of Schedule 5).
197. The Commissioner is under a general duty
to exercise his functions so as to secure certain matters (clause
68(5)). These functions will include issuing a Code of Standards.
198. This matter is left to a form of subordinate
legislation given the detail that will be required to be set in
the Code; and the need to alter the same in the light of experience
and circumstances from time to time.
199. No Parliamentary procedure is provided for.
The matter is one of professional discipline. The Bill requires
consultation (paragraph 2(6)); and sets the principles which the
Commissioner must abide by in drawing up the Code (clause 73(5)).
It must be published in such form and manner as the Secretary
of State directs (paragraph 2(7)).
SCHEDULE 5, PARAGRAPH 3:
POWER TO EXTEND COMMISSIONER'S CODE OF STANDARDS TO DESIGNATED
PROFESSIONAL BODIES
| Power conferred on: |
The Secretary of State |
| Power exercisable by: | Statutory instrument
|
| Parliamentary procedure: | Negative resolution (either House of Parliament)
|
| Other relevant provisions: | Clause 154 of the Bill
|
200. The Commissioner's Code of Standards issued
under Part V of the Bill is to extend to those providing immigration
advice or services, with the exception of those authorised to
do so through a designated professional body. The designated professional
bodies are listed in clause 76. These are bodies, such as the
Law Society, which regulate the legal profession in the United
Kingdom. The scheme of the Part is that such bodies are left to
regulate their members, subject to the possibility of complaints
against their members being considered, to a certain degree, by
the Immigration Services Commissioner. However the Bill contains
provision to deal with circumstances where there is a failure
of this self-regulation. One such power is that set out in clause
76(2), considered below, under which the Secretary of State may
remove a body from the list of designated professional bodies.
The other is that set out in the current paragraph, which allows
the Secretary of State by order to extend the provisions of the
Code of Standards to those providing immigration advice and services
as a result of through authorisation by designated professional
bodies.
201. An order under the paragraph requires the
approval of the Lord Chancellor, if it affects a designated professional
body in England and Wales or Northern Ireland; or the Scottish
Ministers, if it affects the designated professional body in Scotland
(paragraph 3(2)).
202. The matter has been left to delegated legislation
as extension of the Code to those authorised to provide immigration
advice and services through authorisation by a designated professional
body is a default power intended to be triggered only in certain
eventualities. Unlike clause 76(2), these eventualities are not
spelt out on the face of the legislation. The clause 76(2) power
is expressly confined to failure of self-regulation. The present
power is seen as being triggered in the context of deterioration
of self-regulation but which has not yet reached a requirement
to use the clause 76(2) power. As such, it is not considered appropriate
to define its use to any particular degree of failing; much would
depend upon the circumstances.
203. Under clause 154(1) the power is exercised
by statutory instrument. Under clause 154(4) it is subject to
annulment by either Houses of Parliament. It is considered that
negative procedure is appropriate given the limited effect of
the order as simply extending the provisions of a Code of Practice
to a designated professional body. The clause 76(2) power, which
has considerable consequences for the members of a designated
professional body, is subject to affirmative procedure (see below).
CLAUSE 74(4)(D): POWER TO
EXEMPT CATEGORIES OF PERSONS FROM THE PROHIBITION ON PROVIDING
IMMIGRATION ADVICE OR IMMIGRATION SERVICES UNLESS QUALIFIED TO
DO SO
| Power conferred on: |
The Secretary of State |
| Power exercisable by: | Order made by statutory instrument
|
| Parliamentary procedure: | Negative resolution (either House of Parliament)
|
| Other relevant provisions: | Clause 154 of the Bill
|
204. Under clause 74(1) no person may provide
immigration advice or immigration services unless he is a qualified
person. Such qualification may be obtained through one of the
routes set out in subsection (2) of that clause (in particular
through registration with the Immigration Services Commissioner).
The Immigration Services Commissioner is given power, under clause
74(4)(a), to individually exempt persons from the prohibition.
In addition, clause 74(4)(d) confers power on the Secretary of
State to exempt categories of persons from the prohibition. Persons
so exempt are generally not subject to the regulation provided
for by the Part, though they can be the subject of an investigation
by the Commissioner under paragraph 4 of Schedule 5 and disciplinary
proceedings before the Immigration Services Tribunal can result
under paragraph 8 of Schedule 5. They are however, in particular,
exempt from the requirement to register with the Commissioner.
205. The power is intended to enable the Secretary
of State to exempt certain categories of voluntary body from the
requirement to register with the Commissioner if they wish to
provide immigration advice or services. Although the Part only
concerns those providing immigration advice or services by way
of business (clause 72(2)), it applies to them whether or not
the business is for a profit.
206. The matter is considered appropriate for
delegated legislation, given the level of detail; and the need
to make changes from time to time in the light of experience and
circumstances. For example, new categories of voluntary bodies
springing up who deserve exemption; or experiences of poor advice
being provided by other categories of voluntary body leading to
a need to exclude them. The power is not confined to voluntary
bodies only, since other persons may be caught by the scheme but
deserve exemption by category. It is proposed to consult widely
on whether to make such an order and the terms of it before the
scheme under Part V is commenced.
207. Under clause 154 the power is exercisable
by statutory instrument subject to annulment by either House.
It is considered that the negative procedure is appropriate given
the limited effect and scope of the power.
SCHEDULE 6, PARAGRAPH 5:
POWER TO SET FEES FOR REGISTRATION WITH THE IMMIGRATION SERVICES
COMMISSIONER
| Power conferred on: |
The Secretary of State |
| Power exercisable by: | Order made by statutory instrument
|
| Parliamentary procedure: | Negative resolution (either House of Parliament)
|
| Other relevant provisions: | Clause 154 of the Bill
|
208. Under clause 74 of the Bill no person may
provide immigration advice or services unless qualified to do
so. One of the means of obtaining qualification, set out in clause
74(2) is to be registered with the Commissioner or be an employee
or supervisee of such a person. Schedule 6 sets out the procedure
for registration. It provides for applications for registration
(paragraph 1); and requires the Commissioner to register those
he considers competent and fit to provide immigration advice and
services (paragraph 2). Paragraph (3) provides for periodic applications
for registration to be continued. Continued registration is to
be applied for at such intervals as the Commissioner determines.
The purpose of this is to allow a periodic check of the continued
fitness and competence of registered persons. The powers are so
drafted as to enable the Commissioner to require applications
for continued registration more frequently for those he considers
present the higher risk. Paragraph 5 of the Schedule enables the
Secretary of State by Order to specify fees for the registration
or continued registration of persons on the register.
209. The setting of fees is considered appropriate
to leave to secondary legislation given the level of detail and
the need to revise the fees from time to time if only to take
account of inflation.
210. Under clause 154(1) the order is exercisable
by statutory instrument. Under clause 154(5) the Order is subject
to annulment by either House. It is considered appropriate to
use negative procedure for this instrument given that it is simply
a power to set fees.
CLAUSE 76(2): POWER TO REMOVE
THE DESIGNATION OF PROFESSIONAL BODY IN THE EVENT OF CONSISTENT
FAILURE TO PROVIDE EFFECTIVE SELF-REGULATION
| Power conferred on: |
The Secretary of State |
| Power exercisable by: | Order made by statutory instrument
|
| Parliamentary procedure: | draft affirmative (both Houses)
|
| Other relevant provisions: | Clause 154 of the Bill
|
211. As explained above, clause 74(1) prohibits
persons from providing immigration advice or immigration services
unless they are qualified to do so. The ways in which they may
be qualified are set out in clause 74(2). These include registration
by the Commissioner and membership of a designated professional
body. The list of designated professional bodies is set out in
clause 76(1) of the Bill; it comprises the bodies regulating the
legal profession in the United Kingdom. In essence, the structure
of the regulation of immigration advisers under Part V is that
the members of designated professional bodies are left to self-regulation
by those bodies. (To an extent, the members and supervisees of
such bodies can however be subject to investigation by the Commissioner
under paragraph 4 of Schedule 5). The Bill, however, provides
two powers to deal with circumstances in which self-regulation
is failing. One, the extension of the Immigration Services Commissioner's
Code of Standards to designated professional bodies, under paragraph
3 of Schedule 5 to the Bill, is considered above. The present
is the second power. This enables the Secretary of State to remove
a body from the list if he considers that it has consistently
failed to provide effective regulation of its members in their
provision of immigration advice or immigration services.
212. The Immigration Services Commissioner is
required to keep under review the list of designated professional
bodies set out in clause 76(1) and report to the Secretary of
State when he considers that such a body is failing to provide
effective regulation of its members. Moreover, under paragraph
20(2) of Schedule 5, the Commissioner's Annual Report is to express
the Commissioner's opinion as to the extent to which each designated
professional body has provided effective regulation of its members
in the provision of immigration advice or services during the
financial year. A decision whether or not to exercise the power
is also informed by failures of the professional body concerned
to keep to timetables for any disciplinary procedures that may
be set under paragraph 9 of Schedule 5 to the Bill.
213. The effect of removal of a professional
body from the list of designated professional bodies is that its
members will require another route to qualification, if they wish
to continue to provide immigration advice and services. In practice,
this means they will have to register with the Commissioner.
214. Before exercising the power under clause
76(2), the Secretary of State is required to consult (clause 76(4)).
The order requires the approval of the Lord Chancellor, if it
affects a designated professional body in England, Wales or Northern
Ireland; or the Scottish Ministers, if it affects a designated
professional body in Scotland (clause 76(5)).
215. It is considered appropriate to leave this
matter to subordinate legislation, given that it will only require
to be exercised in certain eventualities, the existence of which
will require careful weighing of the evidence by the Secretary
of State.
216. Under clause 154(1) the power is exercisable
by statutory instrument. Under clause 154(3) a draft of the Order
must be laid before Parliament and be approved by each House of
Parliament. It is considered that use of the affirmative procedure
is appropriate here, given the far-reaching consequences of the
instrument for the members of the professional body concerned,
the reputation of that body; and the sensitivity of extending
statutory regulation to the legal professions.
CLAUSE 76(3): REMOVAL OF
DESIGNATED PROFESSIONAL BODY AT ITS OWN REQUEST
| Power conferred on: |
The Secretary of State |
| Power exercisable by: | Order made by statutory instrument
|
| Parliamentary procedure: | Negative resolution (either House of Parliament)
|
| Other relevant provisions: | Clause 154 of the Bill
|
217. Clause 76(2) provides for the removal of
a professional body from the list of designated professional bodies
for the purposes of Part V, where that body is consistently failing
to provide effective regulation of its members. (This is discussed
more fully above). The present power enables the removal of a
professional body from the list of designated professional bodies
at its own request.
218. This power has been made part of the Bill
at the request of certain professional bodies already listed as
designated professional bodies. It would allow the body to be
removed from the list at its own volition if it were, for example,
to consider that it could no longer meet appropriate standards
of self-regulation. Or the number of its members providing immigration
advice and services may not in future be sufficient to justify
the appropriate procedures being in place to effect such regulation.
219. It is considered appropriate to leave this
matter to subordinate legislation as it will only operate where
a request is received in future from a designated professional
body. It is appropriate for legislation, as in effect it is a
power to amend clause 76(1) of the Bill.
220. Under clause 154(1) the power is exercisable
by statutory instrument. Under clause 154(5) it is subject to
annulment by either House of Parliament. Though a power to amend
primary legislation, it is considered appropriate to leave it
to negative resolution given its very limited effect and the fact
it is only triggered by a request.
CLAUSE 76(6): POWER TO ADD
PROFESSIONAL BODIES TO THE LIST OF DESIGNATED PROFESSIONAL BODIES
| Power conferred on: |
The Secretary of State |
| Power exercisable by: | Order made by statutory instrument
|
| Parliamentary procedure: | Negative resolution (either House of Parliament)
|
| Other relevant provisions: | Clause 154 of the Bill
|
221. Under the provisions of the last two powers
considered above, the Secretary of State may in certain circumstances
remove professional bodies from the list of designated professional
bodies in clause 76(1). Such removal has the effect that the members
of that body and those supervised by them are no longer are qualified
by that fact to provide immigration advice and services; and will
have to find another route to qualification if they wish to continue
to provide such advice and services. In practice, of the list
of ways of becoming qualified in clause 74(2), they will have
to register with the Commissioner. The present power allows the
Secretary of State to add a body to the list of designated professional
bodies in clause 76(1), with the consequence that its members
no longer are required to register with the Commissioner and become
qualified simply through membership of that body.
222. The Secretary of State may add the name
of a body if he considers that it is concerned, wholly or partly,
with regulation of the legal professional or a branch of it in
an EEA State and is capable of providing effective regulation
of its members in their provision of immigration advice or immigration
services.
223. Another route to qualification in clause
74(2), besides registration or authorisation by a designated professional
body, is authorisation by a body regulating the legal profession
or any branch of it in another EEA State (clause 74(2)(e)). Although
qualification is obtained through that route, the Secretary of
State may add a body from another EEA State (and not just from
the United Kingdom) to
the list in clause 76(1) as appearance on that list confers additional
advantages, in particular non-application of the Code of Standards
under paragraph 2 of Schedule 5 to the members of that body. No
reason has been identified to exclude the possibility of adding
such bodies to the list.
224. It is considered appropriate to leave the
matter to subordinate legislation, as whether or not there will
be need to exercise it will only appear in the future as new professional
bodies arise which it is appropriate to designate; or bodies currently
on the list which have been de-designated by one of the two powers
referred to above become able again to meet the appropriate standards
and therefore qualify again for designation.
225. Under clause 154(1) an order made under
this power is exercisable by statutory instrument. Under clause
154(5) such an order is subject to annulment by either House of
Parliament. It is considered negative procedure is appropriate
for this power in that, although it is a power to amend primary
legislation, its effects are limited and are to the benefit of
the organisation concerned and its members.
CLAUSE 76(8): POWER TO REQUIRE
DESIGNATED PROFESSIONAL BODIES TO PAY AN ANNUAL FEE TO THE COMMISSIONER
| Power conferred on: |
The Secretary of State |
| Power exercisable by: | Order made by statutory instrument
|
| Parliamentary procedure: | Negative resolution (either House of Parliament)
|
| Other relevant provisions: | Clause 76(10) and 154
|
226. Clause 76(8) enables the Secretary of State
to specify an annual fee which each designated professional body
is to pay to the Commissioner, for the purpose of meeting his
costs in discharging his functions under Part V. Under clause
76(10), the fee is to be specified in an order made by the Secretary
of State. Any unpaid fee may be sued for by the Commissioner as
a debt due to him (clause 76(9)).
227. The Commissioner performs a number of functions
under the Part in connection with designated professional bodies.
He is required to keep the regulation they provide under review
and report to the Secretary of State on the same (clause 76(7)
and paragraph 20 of Schedule 5). He considers complaints in relation
to their members up to the point of reaching a preliminary determination
on the same (paragraphs 4 to 7) of Schedule 5. He then refers
the matter to the complaints and disciplinary procedures of the
relevant body and sets a timetable for their consideration of
the complaint and any disciplinary proceedings (paragraphs 8 and
9 of Schedule 5).
228. The present power enables the Secretary
of State to set a fee to meet the costs of the exercise of these
functions. It remains open for a designated professional body
to seek removal of its status as such under clause 76(3); however
in such eventuality its members will in practice have to be individually
registered by the Commissioner (clause 74(2)(a)).
229. It is considered appropriate to leave this
matter to subordinate legislation given the amount of detail;
and to enable the level of the fee to be changed from time to
time to take account of inflation and experience as to the level
of costs incurred by the Commissioner in exercising his functions
with regard to designated professional bodies.
230. Under clause 154(1) this power is exercisable
by statutory instrument. Under clause 154(5), the instrument is
subject to annulment by resolution by either House of Parliament.
This matter is considered appropriate for negative resolution
given its limited scope as a power to set fees.
SCHEDULE 7, PARAGRAPH 7:
POWER TO MAKE RULES OF PROCEDURE FOR THE IMMIGRATION SERVICES
TRIBUNAL
| Power conferred on: |
The Lord Chancellor |
| Power exercisable by: | Rules made by statutory instrument
|
| Parliamentary procedure: | Negative resolution (either House of Parliament)
|
| Other relevant provisions: | Clause 154 of the Bill: paragraph 8 of Schedule 7
|
231. Clause 77 of the Bill creates a Tribunal
to be known as the Immigration Services Tribunal to hear: appeals
from certain decisions of the Immigration Services Commissioner
and disciplinary charges laid by him. The appeals that may be
heard are essentially appeals as to refusals to register persons
as qualified to give immigration advice or services and restrictions
placed on their ability to practice. The Commissioner is not entitled
to award disciplinary sanctions himself; but must lay a charge
for the determination of the Tribunal.
232. The new Tribunal is the responsibility of
the Lord Chancellor. Schedule 7 sets out its constitution and
makes provision for the conduct of its proceedings. Paragraph
7 enables the Lord Chancellor to make rules of procedure and practice
for the Tribunal. Subject to these, the Tribunal is entitled to
determine its own procedure (paragraph 7(2)). The rules must make
provision for legal representation before the Tribunal (paragraph
7(3)). They may in particular make provision about certain matters
listed in paragraph 7(4), including: the period in which appeals
must be brought: evidential matters: hearings in the absence of
a party: and preliminary matters. One preliminary function of
the Tribunal is to enable it to suspend a relevant decision of
the Commissioner during an appeal against it to the Tribunal;
rules under paragraph 7 must include provision requiring the Tribunal
to consider applications by the Commissioner for the cancellation
of such suspension (paragraph 8(2)).
233. The matter is considered appropriate for
subordinate legislation given the level of detail involved; and
because of the need to change the provision made from time to
time in the light of experience and circumstances.
234. Under clause 154(1) the rules are to be
made by statutory instrument. Under clause 154(5) they are subject
to annulment by resolution of either House. It is considered appropriate
to subject the rules to negative procedure given their limited
effect as rules of procedure for a Tribunal. Other Tribunals,
for example the Immigration Appeals Tribunal also have their rules
subject to negative procedure (section 22 of the 1971 Act).
CLAUSE 80: POWER TO ENABLE
THE DISCIPLINARY BODY OF A DESIGNATED PROFESSIONAL BODY TO HAVE
POWERS TO RESTRICT SUSPEND OR PROHIBIT THE GIVING OF IMMIGRATION
ADVICE OR IMMIGRATION SERVICES BY THOSE SUBJECT TO ITS JURISDICTION
| Power conferred on: |
The Secretary of State |
| Power exercisable by: | Order made by statutory instrument
|
| Parliamentary procedure: | Negative resolution (either House of Parliament)
|
| Other relevant provisions: | Clauses 81 and 154 of the Bill
|
235. After having considered a complaint under
paragraph 4 of Schedule 5 to the Bill, the Immigration Services
Commissioner is able to refer a disciplinary charge against certain
persons to the Immigration Services Tribunal, under paragraph
8 of Schedule 5. The persons concerned are listed in paragraph
8(4). However, in the case of members and supervisees of members
of designated professional bodies, the Commissioner has power
only to refer the matter to the relevant designated professional
body, though he may set a timetable for consideration of the same
under paragraph 9 of Schedule 5. In short, subject to the Commissioner
forming preliminary conclusions before referral, the matter is
left to the self-regulation of the bodies concerned. Clause 80
prospectively enables the disciplinary body of a relevant professional
body to take effective action against the incompetent or unscrupulous
by exercising powers to restrict, suspend or prohibit those subject
to its jurisdiction from providing immigration advice and services
in the same manner as the Immigration Services Tribunal itself
is permitted to do under clause 79(7).
236. Only disciplinary bodies as defined may
use these powers. Such a disciplinary body is one which appears
to the Secretary of State to be established by a designated professional
body for the purpose of hearing disciplinary charges against members
of that body; and which he has specified in an order (clause 80(2)).
The Secretary of State is required to consult the designated professional
body concerned before making such an Order (clause 80(3)).
237. The matter is left to subordinate legislation
as not every designated professional body will wish its disciplinary
tribunal to have these enhanced powers. It is not intended that
they should be conferred against the will of the body concerned,
hence the requirement for consultation. Moreover, over time a
designated professional body, having had these powers conferred
on its disciplinary body, may wish to no longer have them conferred.
Thus the power will need to be exercised from time to time in
the light of circumstances. Certain of the bodies currently listed
as designated professional bodies have statutory disciplinary
arrangements. Even here the bodies concerned may or may not wish
these extra powers conferred and may or may not wish them to be
continued once they have been conferred. Thus the Bill does not
directly amend the statutes concerned. Some of the currently listed
bodies do not have statutory procedures; and that may be the case
with future bodies to be added. The power is expressed broadly
so as to accommodate all these possibilities.
238. Under clause 154(1) the power is exercisable
by statutory instrument. Under clause 154(5) any order made is
subject to annulment by either House of Parliament. It is considered
appropriate to use negative procedure given the limited nature
of the power and the fact that it will be to the benefit of (and
conferred with the co-operation of) the designated professional
bodies concerned.
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