Guidance

Applications from Ex-Offenders

Published 8 July 2014

1. The Commissioner’s duty

The Immigration Services Commissioner has a duty to ensure, as far as is reasonably practicable, that those who provide immigration advice or immigration services are fit and competent to do so.

2. Disclosure and Barring Service (DBS)

The Office of the Immigration Services Commissioner (OISC) uses DBS checks to help assess the fitness of those applying to be regulated by the OISC. The OISC complies fully with the DBS code of practice, notifies all applicants of the code and undertakes to treat all applicants fairly.

3. Notifying the OISC of your criminal conviction

If an individual applying to be regulated has a criminal conviction, then they must inform the OISC.

Advisers charged or convicted of a criminal offence whilst regulated must inform the OISC within 10 working days of the charge or conviction being made, as stated in code 83 of the OISC’s code of standards.

An individual should be co-operative in providing the OISC with details about their criminal conviction. This indicates that the individual understands their obligation to co-operate with the OISC and gives some confidence that they are approaching full rehabilitation.

The OISC will place greater weight on the criminal conviction if it appears that the person has not provided the information.

An individual who fails to tell the OISC about their criminal conviction suggests they have yet to come to terms with their past, and that they do not understand their obligation to have an open relationship with the OISC.

4. OISC approach to criminal convictions

The OISC is committed to the fair treatment of all advisers and applicant advisers regardless of race, gender, religion, sexual orientation, age, physical/mental disability or offending background.

The fact that you have a criminal conviction will not necessarily bar you from being regulated by the OISC. If a conviction is declared either by an individual or through a DBS check, the OISC will discuss it with the individual before making a decision on whether to approve their initial or continued registration.

Crimes where the individual has acted with dishonesty are of particular concern to the OISC. This is even in the case when the conviction is ‘spent’, as set out in the Rehabilitation of Offenders Act 1974. This is because the OISC must assess an individual’s honesty and integrity when deciding whether or not to allow them to provide immigration advice or immigration services to clients.

Unless there are exceptional and persuasive circumstances, the OISC is likely to refuse an application from a person who has a criminal conviction that is ‘unspent’.

The Ministry of Justice provides guidance on the difference between spent and unspent convictions.

The OISC is also likely to refuse any application from a person where any fine or costs resulting from a criminal conviction are not yet discharged.

A conviction under section 25 or 26(1) (d) or (g) of the Immigration Act 1971 is an automatic disqualification from regulation by the OISC by schedule 6 paragraph 4 of the Immigration and Asylum Act 1999.

When deciding applications from a person with a criminal conviction, the OISC will make decisions on a case by case basis. The OISC will consider the following:

• the nature of the crime that resulted in the criminal conviction;
• the scale, impact and relevance of the conviction on the individual’s ability to provide immigration advice or immigration services;
• the services that the individual intends to deliver and the responsibilities that will come it;
• whether the nature of the crime or its circumstances raises questions of the person’s honesty, integrity or competence;
• whether the appropriate penalty, restitution or other remedial steps required have been carried out;
• the record of the individual since the relevant crime including any repeat offences, employment history and personal conduct (including restitution to any victims);
• the time that has passed since the criminal conviction.