Corporate report

OISC Criminal Enforcement Policy

Updated 25 August 2023

1. Introduction

1.1 The Immigration Services Commissioner is under a duty to exercise his/her functions to prevent the provision of immigration advice/services by any person acting in contravention of section 84 of the Immigration & Asylum Act 1999 (as amended) (the Act).

1.2 Enforcement action is taken to protect the integrity of the regulatory scheme and to protect those who suffer from such unlawful activity. The Commissioner seeks to maintain a consistent approach to those found to be in breach of the Act or otherwise are acting unlawfully.

1.3 The enforcement function, steered by inspirational leadership, will provide an effective response to protecting migrants by being totally committed to deterring those that either are or may be considering providing unregulated advice and as far as possible eliminating unlawful activity. This will be achieved through education, disruption, intervention, restitution, sanctions and, if necessary, prosecution.

1.4 This policy provides the framework within which the Office of the Immigration Services Commissioner (OISC) criminal investigations and enforcement action can be conducted to ensure consistency of approach and decision making. It provides a formal process promoting fairness and consistency in dealing with those found or suspected to be unlawfully providing immigration advice/services or advertising to provide such. It also provides a framework where the OISC investigates and prosecutes alternative charges other than those provided by the Act. The OISC will only investigate and prosecute such charges where there is a clear association with the provision or advertising of unlawful immigration advice/services.

1.5 This policy is made with regard to the Code for Crown Prosecutors, issued by the Director of Public Prosecutions. A prosecution will only start when the case has passed both stages of the Full Code Test, namely the evidential stage and public interest stage.

1.6 This policy is made with regard to guidance on simple cautions, issued by the Ministry of Justice.

1.7 There is no hierarchy of enforcement action. The enforcement options set out in this policy will be considered on a case-by-case basis, taking into account the factors known at the time of the decision to take enforcement action. For the avoidance of doubt, the enforcement decision taken will be made without the requirement to first take or offer suspects a lesser form of enforcement action, for example, a decision to prosecute can be taken without having first given the suspect an OISC warning or simple caution.

1.8 This policy is made without prejudice to the Commissioner’s power to apply to a county court in Northern Ireland or the county court in England and Wales for an injunction, or to the sheriff for an interdict, restraining a person from providing immigration advice/services, or the exercise of any other power provided by Part V of the Act.

1.9 The enforcement decision proforma will be completed in all cases and a record kept of the enforcement decision made.

2. Prosecutions

2.1 Those who may provide immigration advice and services without being qualified to do so are deterred from committing further offences. It is important that the taking prosecution action broadcasts a positive message about the OISC and its values .. putting the advice seeker at the forefront.

Evidential Stage

2.2 The OISC must be satisfied that there is sufficient evidence to provide a realistic prospect of a criminal conviction before a prosecution is started and will take into account the following:

• Can the evidence be used in court, taking into account the likelihood that any evidence will be held as inadmissible by the court and the importance of that evidence in relation to the evidence as a whole;

• Is the evidence reliable, including its accuracy or integrity and the availability of prosecution witnesses;

• Is the evidence credible, taking into account whether there are any reasons to doubt the credibility of the evidence; and

• Is there any other material that might affect the sufficiency of the evidence, including examined and any unexamined material in the possession of the OISC, and material that may be obtained through reasonable further lines of inquiry.

Public Interest Stage

2.3 If a matter passes the evidential stage, the OISC will then determine if a prosecution would be in the public interest.

2.4 There is no definitive guidance as to when it may or may not be in the public interest to prosecute. Each case will turn on its individual facts, but the factors contained in the following sub-paragraphs must be considered when coming to a decision.

2.5 The OISC will consider the seriousness of the offence, taking into account the suspect’s culpability and the harm caused to the victims.

2.6 When assessing culpability, the OISC will take into account:

• The level of involvement and duration of the offending;

• The extent to which the offending was premeditated and/or planned;

• The extent to which the suspect has benefitted from the criminal conduct;

• The suspect is alleged to have committed the offence was under an order of the court (e.g. criminal behaviour order);

• Whether the offending is likely to be continued, repeated or escalated and this will include any history of recurring conduct by the suspect;

• The suspect has a previous conviction, or simple caution, OISC reprimand or OISC warning relevant to the alleged offence;

• The suspect was acting above their OISC authorised level and their activities involved multiple applications/representations; and

• The alleged offence was organised by two or more persons.

2.7 When assessing harm, the OISC will take into account:

• The circumstances and vulnerability of the victim;

• Whether a position of trust or authority existed between the suspect and victim;

• The impact of the conduct on the alleged victim or others, including, but not limited to, immigration status, family separation and detention;

• The personal harm/suffering by the alleged victim or others;

• Financial gain to him/herself or loss to another;

• Reckless disregard for the interests of the alleged victim or others;

• The wilful provision of false information in order to deceive; and

• Whether the suspect has made restitution to victims, in full or in part, by way of reimbursement of fees paid by the victim and any of their financial losses which the OISC consider are attributable to the actions of the suspect.

2.8 The OISC will also take into account:

• The suspect’s age and maturity at the time of the offence;

• The impact of the offending on the community;

• Whether prosecution is a proportionate response, taking into account the cost to the OISC and the wider criminal justice system, especially where it could be regarded as excessive when weighed against the likely penalty. The public interest will not be assessed on this factor alone, but alongside all other public interest considerations; and

• Do sources of information require protecting, special care will be taken where a prosecution may harm sources of information or ongoing investigations.

2.9 Even when the Full Code Test has been satisfied, a criminal prosecution will be unlikely to be pursued by the OISC if any of the following are relevant:

• The age of the suspect is under 18;

• There is evidence of mental health issues;

• The circumstances were beyond the suspect’s control;

• There are other relevant matters to be taken into consideration such as a lack of witness co-operation;

• The commission of the alleged offence was the result of a genuine mistake or misunderstanding;

• To bring proceedings would be an abuse of process;

• There was a long and unexplained delay between the date of the alleged offence and the matter being brought to the notice of the OISC; and

• Even though the suspect was acting above their OISC authorised level the result was only, minor abuse of the regulatory scheme.

3. Selection of Charges

3.1 The OISC will select charges which:

• Reflect the seriousness and extent of the offending;

• Give the court adequate powers to sentence and impose appropriate post-conviction orders, including, for example, compensation to victims;

• Allow a confiscation order to be made in appropriate cases, where a defendant has benefitted from criminal conduct; and

• Enable the case to be presented in a clear and simple way.

3.2 The OISC may select charges under the Act and/or Fraud Act 2006, or any other enactment as may be appropriate, where there is a clear association with the provision or advertising of unlawful immigration advice/services, contrary to the Act.

4. Accepting guilty pleas

4.1 Defendants may want to plead guilty to some, but not all, of the charges. Alternatively, they may want to plead guilty to a different, possibly less serious, charge because they are admitting only part of the crime.

4.2 The OISC will only accept the defendant’s plea if:

• The court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features;

• It enables the court to make a confiscation order in appropriate cases, where a defendant has benefitted from criminal conduct;

• It provides the court with adequate powers to impose other ancillary orders, including, for example, compensation to victims; and

• It is in the public interest to do so.

4.3 The OISC will never accept a guilty plea just because it is convenient to do so.

4.4 The OISC will, in considering whether the pleas offered are acceptable, ensure that the interests and, where possible, the views of the victim, are taken into account when deciding whether it is in the public interest to accept the plea. However, the decision rests with the OISC.

4.5 The OISC will make it clear to the court on what basis any plea is advanced and accepted. In cases where a defendant pleads guilty to the charges but on the basis of facts that are different from the prosecution case, and where this may significantly affect sentence, the court should be invited to hear evidence to determine what happened, and then sentence on that basis.

5. Discontinuance of criminal proceedings

5.1 The OISC will discontinue commenced criminal proceedings should any of the following become relevant:

• Further review of the evidence shows that of the original decision to prosecute was wrong;

• New and compelling evidence appears that was not previously known/available, which assists the defendant;

• It becomes apparent that there is insufficient evidence to proceed with prosecution such as a key witness being deported;

• Continuing the proceedings is likely to lead to an abuse of process;

• There appears to no longer be a realistic prospect of obtaining a conviction;

• Prosecution is no longer a proportionate response, taking into account the cost to the OISC and the wider criminal justice system, especially where it could be regarded as excessive when weighed against the likely penalty. The public interest will not be assessed on this factor alone, but alongside all other public interest considerations as may apply; and

• Guilty pleas are entered by one or more defendants, which mean that it is no longer in the public interest to prosecute one or more co-defendants.

6. Simple caution

6.1 The OISC has adopted the simple caution, as an outcome of an investigation, similar to that used by the police. This can provide a suitable outcome to an investigation without recourse to the courts in less serious cases. However, it also allows for the caution to be recorded on the Police National Computer and more importantly, it assists in formally identifying the suspect being cautioned by way of the taking of biometrics (photograph, fingerprints and DNA) to be then compared against police national biometric databases.

6.2 Where the criminal standard of proof is present, the suspect may be dealt with by way of a simple caution. This will only be done if the suspect makes a clear and reliable admission of guilt for the offence/s, agrees to accept the caution and that they submit their biometrics before the simple caution is administered.

6.3 In deciding if a caution is appropriate, the OISC will take into account the following:

• The offence was in isolation and was of a less serious nature;

• The unlawful conduct of the suspect was minimal and the offence was not predicated in deceit;

• The impact on any victim and/or others was minimal;

• There was no or only minor financial gain;

• The risk of re-offending is minimal;

• The court is likely to impose a nominal penalty;

• The suspect has only a history of minor offending as known to the OISC;

• The suspect has taken action to stop providing unlawful advice/services;

• The suspect has taken action to lawfully provide immigration advice/services;

• The suspect was acting above their authorised OISC level but the abuse caused was minor; and

• The suspect has made restitution to victims, in full or in part, by way of reimbursement of fees paid by the victim and any of their financial losses which the OISC consider are attributable to the actions of the suspect.

6.4 The OISC will use the suspect’s biometrics to verify their identity and discover any previous convictions. Depending on the results, a decision will be made as to whether a caution is a suitable outcome to the offending.

6.5 The suspect will be handed a written notice explaining that their biometrics will be subject to a speculative search on the national police biometrics databases to eliminate them from outstanding crime samples/marks.

6.6 If a suspect refuses the simple caution then they will be prosecuted.

6.7 Simple cautions will always remain on a suspect’s criminal record.

6.8 Simple cautions will not be offered in order to secure an admission of guilt that could then provide sufficient evidence to meet then evidential stage of the Full Code Test, as set out in the Code for Crown Prosecutors

6.9 Simple cautions will not be given where it is in the public interest to prosecute.

6.10 The OISC will, in considering whether to offer a simple caution, ensure that the interests and, where possible, the views of the victim, are taken into account. However, the decision rests with the OISC.

6.11 Where a simple caution is given the OISC will, unless it has already been made, invite restitution to be made to victims by the suspect, by way of reimbursement of any fees paid by the victim and any of their financial losses which the OISC consider are attributable to the actions of the suspect.

7. OISC Warning

7.1 An OISC warning may be given in any case where there is evidence, on the balance of probability, that an offence has been committed, but the Full Code Test has not been met, or the case is considered not to be sufficiently serious to warrant a simple caution, or less serious cases where the suspect has not made a clear and reliable admission of guilt.

7.2 In deciding if a warning is appropriate, the OISC will take into account the same criteria detailed in paragraph 6.3.

7.3 The OISC will, in considering whether to give a warning, ensure that the interests and, where possible, the views of the victim, are taken into account. However, the decision rests with the OISC.

7.4 Where a warning is given the OISC will, unless it has already been made, invite restitution to be made to victims by the suspect, by way of reimbursement of fees paid by the victim and any of their financial losses which the OISC consider are attributable to the actions of the suspect.

8. Restitution

8.1 Suspects may, at the end of an investigation and before any decision is made to prosecute, or offer an out-of-court disposal, be invited to make restitution to victims within 28 days. In such cases a schedule of compensation sought will be provided. However, for the avoidance of doubt, prosecution, simple caution, OISC reprimand or OISC warning may still take place in cases where restitution has been made in full or in part.

8.2 In serious cases, taking into account impact on victims and their immigration status, family separation, detention, extent of financial gain/loss, duration of offending and any previous convictions, the decision to prosecution may be made without having first given the suspect the opportunity to make restitution to victims.

8.3 In a prosecution case the OISC will advise the sentencing court of any restitution that has been and that the court should take this into account as a mitigating factor at the time of sentence.

8.4 Defendants will be advised, at the point of issuing a summons, that if they plead guilty or are found guilty that the OISC will seek an order of compensation. Details of the compensation sought will be set out on a schedule. Defendants will be advised that the OISC will inform the court that any restitution that is made to victims should be treated as a mitigating factor when sentence is passed.

9. Financial Resources

9.1 The OISC has finite financial resources and the decision to prosecute is subject to sufficient resources being available in the event that the case goes to trial in the Crown Court or Magistrates’ Court. Decisions that are made in one financial year will not be considered as establishing a settled policy and case decisions will vary from each year to next.