Disclosure of information about immigration advisers
Updated 24 September 2015
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This publication is available at https://www.gov.uk/government/publications/oisc-disclosure-of-information-policy-and-procedure-march-2011/disclosure-of-information-about-immigration-advisers
1. Policy aim
This policy explains how the Office of the Immigration Services Commissioner (the OISC) deals with requests for information about immigration advisers, from members of the public and from other immigration advisers and solicitors. The policy applies to enquiries about all advisers that are or have previously been, regulated by the OISC.
The policy does not cover the dissemination of intelligence information to statutory UK law enforcement agencies, the security and intelligence services, other non statutory law enforcement prosecuting agencies and organisations with which the OISC has a memorandum of understanding, i.e. the qualifying regulators and designated professional bodies.
The OISC provides guidance on these matters in its code of practice on the recording and dissemination of intelligence information. All such enquiries will be referred to the OISC intelligence team.
2. Immigration and Asylum Act 1999
Section 93 (s.93) of the Immigration and Asylum Act 1999 (the Act) relates to the provision of information to and by the OISC.
The Act states that no enactment or rule of law prohibits a person from providing the Commissioner with information that is necessary to discharge his functions (s.93 (1)).
2.1 Relevant persons
The Act further states that no relevant person may at any time disclose information which:
(a) has been obtained by, or given to, the Commissioner under or for the purposes of the Act
(b) relates to an identified or identifiable individual or business, and
(c) is not at that time, and has not previously been, available to the public from other sources
This applies unless the disclosure is made with ‘lawful authority’ (s.93(2)).
A ‘relevant person’ means a person who is or has been:
(a) the Commissioner
(b) a member of the Commissioner’s staff
(c) an agent of the Commissioner
2.2 Lawful authority
A disclosure is made with ‘lawful authority’ (s.93(2)) only if, and to the extent that:
(a) it is made with the consent of the individual or the person for the time being carrying on the business
(b) it is made for the purposes of, and is necessary for, the discharge of any of the Commissioner’s functions under this Act or any Community obligation of the Commissioner
(c) it is made for the purposes of any civil or criminal proceedings arising under or by virtue of this Part, or otherwise
(d) having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest. (s.93(3)).
The Commissioner, a member of the Commissioner’s staff or an agent of the Commissioner will be guilty of an offence if they recklessly disclose information in contravention of s.93(2).
3. The Commissioner’s duties and functions
In order to establish whether the OISC may disclose information, regard is therefore given to the Commissioner’s functions, community obligations and the public interest.
The relevant functions of the Commissioner are set out in part V and schedule 5 of the Act.
It is a general duty of the Commissioner to promote good practice amongst those who provide immigration advice or services.
The Commissioner’ regulatory functions are set out in part 1 of schedule 5 to the Act. The Commissioner must exercise his functions to ensure that those who provide immigration advice or services are fit, competent and fulfil the related requirements of s.83(5) of the Act.
In order to carry this out the Commissioner must:
- arrange for the publication of information about his functions and may give advice about these
- arrange for publications of information about his functions and may give advice about these
- prepare a register of those he has registered
- review the list of Designated Professional Bodies (DPBs) listed at s86 of the Act as amended by the Legal Services Act 2007 and report to the Secretary of State if he considers that a DPB is failing to provide effective regulation
- set up a complaints scheme to deal with relevant complaints (paragraph 5 of schedule 5), including those made about members of DPBs
4. Disclosure procedure
All OISC staff may confirm, in writing or orally, whether an adviser or organisation is registered with the OISC. This information is available on the OISC website.
Where an enquirer seeks further information, the enquirer should be asked to put this in writing. Such requests will be put to the information officer(s) of the OISC, who will respond in accordance with the Data Protection Act 1998, the Immigration and Asylum Act 1999 (as amended) and the Freedom of Information Act 2000.
Responses will be provided promptly in writing, no later than the relevant statutory time limit contained in the Freedom of Information Act 2000 or the Data Protection Act 1998.