Guidance

Immigration advisers who have received a complaint

Published 22 August 2014

This guidance was withdrawn on 6 June 2016

This guidance is no longer current. Please see the OISC’s complaints scheme for guidance in relation to how the OISC deals with complaints.

1. Complaints against immigration advisers

When a member of the public makes a complaint against a regulated immigration adviser, the OISC will investigate:

• the competence or fitness of a person to provide immigration advice or immigration services
• the competence or fitness of a person acting on behalf of a person providing immigration advice or immigration services
• an alleged breach of the code of standards
• an alleged breach of the commissioner’s rules by a person to whom they apply
• an alleged breach of a rule of a relevant regulatory body

The commissioner has the power to initiate investigations about these complaints.

2. Being subject to a complaint

A regulated immigration adviser who is the subject of a complaint must:

• comply with any reasonable requirement imposed on them by the commissioner
• take such steps as are reasonably required to assist the commissioner in the investigation

A registered or exempt person must:

• allow access to their premises (see the complaints scheme for more detail) for the investigation of any relevant complaint
• comply with the requirements of the commissioner or their staff or agents when they are on those premises investigating a complaint
• not delay or obstruct the commissioner or their staff or agents

Failure to comply with these duties without reasonable excuse may result in the commissioner imposing sanctions, such as cancelling registration or removing exemption, or requesting that similar sanctions be imposed by the First-tier Tribunal (Immigration Services).

3. Complaints process

1. A complaint is made to the OISC.
2. If the complaint is about an OISC-regulated person and if it is ‘relevant matter’, see the complaints scheme. If the complaint is about a member of a designated professional body (DPB), the OISC will pass the complaint to the DPB and the OISC will monitor it.
3. The complaint is recorded and an enquiry starts.
4. The adviser is informed of the complaint and given an opportunity to respond.
5. Enquiries are made.
6. All the evidence is considered and determined if the complaint is upheld.
7. If the complaint is upheld, the decision is recorded and there may be 4 possible outcomes:
   a) for registered advisers, the decision is considered at the next application for re-registration
   b) registered advisers may be required to re-apply for re-registration immediately
   c) exempt organisations may have their exemption status removed
   d) for both registered and exempt advisers, the OISC may lay a disciplinary charge before the Immigration Services Tribunal
8. If the complaint is not upheld there may be two outcomes:
   a) no further action, the adviser and complainant are informed accordingly
   b) the OISC compliance caseworker may be notified when practice points are issued

4. Powers of entry into premises

The commissioner and people authorised by the commissioner in writing have the power to enter premises to investigate complaints about:

• the competence or fitness of a person to provide immigration advice or immigration services
• the competence or fitness of a person acting on behalf of a person providing immigration advice or immigration services
• alleged breaches of the commissioner’s code of standards

The commissioner has the power to:

• enter premises without force at a reasonable time, to take copies of any document or information held on computer
• take into the premises any equipment thought necessary

The commissioner does not have power of entry:

• if the complaint alleges a breach of the commissioner’s code of standards by a person regulated by a designated professional body or equivalent European Economic Area (EEA) regulatory body or the rules of that relevant regulatory body
• to enter a private residence

Find out more about the Office of the Immigration Services Commissioner’s powers and duties.

5. Sanctions

If a complaint is upheld

Where the complaint is against a registered person (or persons employed by or under the supervision of a registered person), the commissioner may 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.

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 need immediate action, the commissioner may require the registered person to apply immediately for continued registration. The complaint and the matters raised during its determination will be taken into account in determining the application for continued registration.

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 exempt person, the commissioner may consider whether the exemption should be withdrawn.

With respect to any relevant person subject to a relevant complaint, other than those regulated by a professional body, the commissioner may lay a disciplinary charge against them before the First-tier Tribunal (Immigration Services). This would generally apply only to the most serious matters or where there is a history of complaints. ‘Relevant person’ includes all persons providing immigration advice or immigration services. This includes those who have been granted exemption by the immigration services commissioner or are in a category of persons subject to a ministerial order under Section 84 (4) (d) of the Immigration and Asylum Act 1999.

The commissioner can refer the complaint and their decision to the relevant regulatory body as detailed in the section on DPBs (see complaint scheme annex C) if the complaint is made against a person who:

• is authorised to practise and regulated by a DPB or works under the supervision of such a person
• 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
• is authorised by a body in another EEA state, which is responsible for the regulation of legal services within that state
• is employed or supervised by someone regulated by a person or body within another EEA state

Read more about the OISC complaints scheme.