Immigration Act 2014

Section 63

SCHEDULE 7 Immigration advisers and immigration service providers

Introductory

1 Part 5 of the Immigration and Asylum Act 1999 (which makes provision for the regulation of immigration advisers and immigration service providers) is amended in accordance with this Schedule.

Removal of Commissioner’s power of exemption from registration

2 (1) In section 84(4) (persons exempt from prohibition on provision of immigration advice and services by unqualified persons)—

(a) omit paragraphs (a), (b) and (c) (and the word “or” which follows paragraph (c));

(b) in paragraph (d) omit “who”.

(2) Omit the following provisions—

(a) section 84(5) and (7);

(b) section 85(2);

(c) section 87(3)(b);

(d) section 88(2)(c);

(e) section 89(4);

(f) paragraph 6(3)(b) and 9(1)(d) of Schedule 5;

(g) paragraph 6(3)(a) of Schedule 6.

Waiver of fees for registration

3 (1) Paragraph 5 of Schedule 6 (fees for registration) is amended as follows.

(2) In sub-paragraph (1)—

(a) after “order” insert “(a)”;

(b) at the end insert—

“(b) make provision for, and in connection with, requiring or authorising the Commissioner to waive all or part of the specified fee in particular cases.”

(3) In sub-paragraph (2) at the end insert “(but this is subject to any waiver in accordance with provision under sub-paragraph (1)(b))”.

Cancellation of registration by Commissioner

4 (1) In section 87(3) (decisions of Commissioner which may be appealed to First-tier Tribunal) after paragraph (ea) insert—

“(eb) to cancel a registration under paragraph 4A(e) of that Schedule.”

(2) In paragraph 9 of Schedule 5 (powers of Commissioner on determining a complaint)—

(a) omit sub-paragraph (1)(b);

(b) after sub-paragraph (1A) (inserted by paragraph 7(4) of this Schedule) insert—

“(1B) Sub-paragraph (1)(a) is subject to paragraph 4A(e) of Schedule 6 (duty of Commissioner to cancel registration of a person who is no longer competent or is otherwise unfit).”

(3) In paragraph 3 of Schedule 6 (applications for continued registration)—

(a) omit sub-paragraph (5);

(b) in sub-paragraph (6) for “Otherwise,” substitute “Unless the Commissioner is required by paragraph 4A to cancel the applicant’s registration”;

(c) in sub-paragraph (7)(a) omit “or by a direction given by the First-tier Tribunal under section 89(2)(b)”.

(4) In Schedule 6 (registration) after paragraph 4 insert—

“Further provision for the cancellation of registration

4A The Commissioner must cancel a person’s registration if—

(a) the person asks for it to be cancelled;

(b) the person dies (in a case where the person is an individual) or is dissolved or wound up (in any other case);

(c) the person is convicted of an offence under section 25 or 26(1)(d) or (g) of the 1971 Act;

(d) under section 89(2A)(b) the First-tier Tribunal directs the Commissioner to cancel the person’s registration; or

(e) the Commissioner considers that the person is no longer competent or is otherwise unfit to provide immigration advice or immigration services.”

Suspension of registration

5 (1) In section 84(3) (limitations on effect of registration)—

(a) after “subject to” insert “(a)”;

(b) at the end insert—

“(b) paragraph 4B(5) of that Schedule (effect of suspension of registration).”

(2) In section 87(4) (further functions of First-tier Tribunal)—

(a) for “a further function” substitute “further functions”;

(b) at the end insert “and paragraph 4B of Schedule 6 (suspension of registration by First-tier Tribunal)”.

(3) After paragraph 4A of Schedule 6 (inserted by paragraph 4(4) of this Schedule) insert—

“Suspension of registration

4B (1) The First-tier Tribunal may, on an application made to it by the Commissioner, suspend a person’s registration if the person is for the time being charged with—

(a) an offence involving dishonesty or deception;

(b) an indictable offence; or

(c) an offence under section 25 or 26(1)(d) or (g) of the 1971 Act.

(2) The suspension of the person’s registration ceases to have effect if one of these occurs—

(a) the person is acquitted of the offence;

(b) the charge is withdrawn;

(c) proceedings in respect of the charge are discontinued;

(d) an order is made for the charge to lie on the file, or in relation to Scotland, the diet is deserted pro loco et tempore.

(3) If the person is convicted of an offence under section 25 or 26(1)(d) or (g) of the 1971 Act, the suspension of the person’s registration continues to have effect until the Commissioner cancels the person’s registration (as required by paragraph 4A(c)).

(4) If the person is convicted of any other offence within sub-paragraph (1)—

(a) the Commissioner must as soon as reasonably practicable consider whether the person is no longer competent or is otherwise unfit to provide immigration advice or immigration services (so that the person’s registration must be cancelled under paragraph 4A(e));

(b) the suspension of the person’s registration continues to have effect until the Commissioner either cancels the person’s registration, or decides that the person is competent and otherwise fit to provide immigration advice and immigration services.

(5) A person whose registration is suspended is not to be treated as a registered person for the purposes of section 84 (but is to be treated as a registered person for the purposes of the other provisions of this Part).

(6) Where a person’s registration is suspended the Commissioner must as soon as reasonably practicable record the suspension in the register.

(7) Where a suspension ceases to have effect (and the person’s registration is not cancelled) the Commissioner must as soon as reasonably practicable remove the record of the suspension from the register.”

Inspections

6 After paragraph 4 of Schedule 5 insert—

“Inspections

4A The Commissioner may carry out inspections of the activities and businesses of registered persons.”

Complaints and investigations

7 (1) For section 89(2) (powers of Tribunal on hearing charge against registered person) substitute—

“(2) Subsections (2A) and (2B) apply if the person charged was, at the time to which the charge relates, a registered person or a person acting on behalf of a registered person.

(2A) If the registered person mentioned in subsection (2) is still registered, the First-tier Tribunal may direct the Commissioner—

(a) to record the charge and the First-tier Tribunal’s decision on it for consideration in connection with that person’s next application for continued registration;

(b) to cancel that person’s registration.

(2B) If the registered person mentioned in subsection (2) is no longer registered, the First-tier Tribunal may direct the Commissioner to record the charge and the First-tier Tribunal’s decision on it for consideration in connection with any application by that person for registration.”

(2) In paragraph 5(3) of Schedule 5 (complaints which may be investigated by Commissioner)—

(a) before paragraph (a) insert—

“(za) the competence or fitness to provide immigration advice or immigration services of a person who, at the time to which the complaint relates, was a registered person,”;

(b) in paragraph (a) for “a person” substitute “any other person”;

(c) after paragraph (a) insert—

“(aa) the competence or fitness of a person who, at the time to which the complaint relates, was acting on behalf of a registered person,”;

(d) in paragraph (b) for the first “a person” substitute “any other person”;

(e) in paragraph (d) for “a person to whom they apply” substitute “a person who, at the time to which the complaint relates, was a registered person or a person acting on behalf of a registered person”.

(3) For paragraph 9(1)(a) of that Schedule (Commissioner’s powers on determining a complaint) substitute—

“(a) if the person to whom the complaint relates was at the time to which the complaint relates—

(i) a registered person, or

(ii) a person acting on behalf of a registered person,

record the complaint and the decision on it to be considered in connection with the next relevant application;”.

(4) After paragraph 9(1) insert—

“(1A) In sub-paragraph (1)(a) “relevant application” means—

(a) if the registered person referred to in that sub-paragraph is still registered, an application by that person for continued registration, and

(b) otherwise, an application by that person for registration.”

(5) For paragraph 9(4) substitute—

“(4) Relevant person” means—

(a) a person who, at the time to which the charge relates, was providing immigration advice or immigration services and was—

(i) a registered person, or

(ii) a person acting on behalf of a registered person;

(b) a person providing immigration advice or immigration services who is—

(i) a person to whom section 84(4)(d) applies, or

(ii) a person employed by, or working under the supervision of, such a person.”

Power of entry and inspection

8 (1) Omit paragraph 7 of Schedule 5 (and the cross-heading before it).

(2) After paragraph 10 of that Schedule insert—

“Power of entry and inspection

10A (1) On an application made by the Commissioner a justice of the peace (or in Scotland, the sheriff) may issue a warrant authorising the Commissioner to enter premises.

(2) A justice of the peace or sheriff may issue a warrant in respect of premises if satisfied that there are reasonable grounds for believing that—

(a) the premises are being used, or have been used, in connection with the provision of immigration advice or immigration services by a registered person,

(b) entry to the premises is reasonably required for the exercise of any of the Commissioner’s functions, and

(c) entry to the premises may be prevented or delayed unless a warrant is produced.

(3) The Commissioner may enter premises by virtue of this paragraph only at a reasonable hour.

(4) Where the Commissioner enters premises by virtue of this paragraph the Commissioner may—

(a) take onto the premises any equipment that appears to the Commissioner to be necessary;

(b) require any person on the premises to produce any relevant document and, if the document is produced, to provide any explanation of it;

(c) require any person on the premises to state, to the best of the person’s knowledge and belief, where any relevant document is to be found;

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

(e) require any relevant information which is held in a computer and is accessible from the premises to be produced in a form—

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

(ii) in which it is visible and legible.

(5) For the purposes of sub-paragraph (4), a document or information is “relevant” if the document or information relates to any matter connected with the provision of immigration advice or immigration services.

(6) The powers conferred on the Commissioner by sub-paragraphs (1) to (5) may also be exercised by—

(a) a member of the Commissioner’s staff authorised by the Commissioner in writing, and

(b) if the Commissioner so determines, a person appointed by the Commissioner to make a report on the provision of immigration advice or immigration services from the premises in question.

(7) If a registered person fails without reasonable excuse to allow access under this paragraph to any premises under the person’s occupation or control, the Commissioner may cancel the person’s 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 under sub-paragraph (4);

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

(c) fails to take reasonable steps to prevent an employee of the registered person from obstructing any person exercising such functions.

(9) In this paragraph “premises” includes premises used wholly or partly as a dwelling.”