Paragraph 1 of Schedule 1 provides that the Immigration and Asylum Act 1999 (the "IAA 1999") is amended in accordance with that Schedule. Paragraphs 2 and 3 create the power to amend the definition of ‘relevant matters’, set out at section 82(1) IAA 1999 by regulations. This will allow for the list of ‘relevant matters’, that the Immigration Services Commissioner (Commissioner) has regulatory oversight of, to become flexible and adapt with the changing landscape of immigration advice.
	This will introduce a Henry VIII power which means that primary legislation can be amended by secondary legislation. So the amendment in paragraph 3 makes provision for such regulations to be subject to the affirmative procedure.
	Paragraphs 4, 5 and 6 of Schedule 1 make further amendments to Part 5 and Schedule 6 IAA 1999.
	Paragraph 4 amends section 84 of the IAA 1999 to confirm that a person suspended under new paragraph 4AA or 4B of Schedule 6 is not to be treated as a registered person for the purposes of section 84 IAA 1999 and makes provisions for the recording of the suspension on the Commissioner’s register.
	Paragraph 5 of Schedule 1 inserts five new subsections into section 87 IAA 1999 (appeals to First-tier Tribunal):
	Subsection (3AA) provides that the Commissioner’s decision to cancel a person’s registration under paragraph 4A(e) of Schedule 6 IAA 1999 is upheld whilst an appeal against that decision is running where conditions A or B are met (see below).
	Subsection (3AB) defines ‘Condition A’. This is where the Commissioner notifies a person to which a decision under paragraph 4A(e) of Schedule 6 IAA 1999 has been made that the Commissioner considered that they are acting or have acted in a way which creates a risk of serious harm to persons seeking immigration advice or services or creates a risk to the system of immigration control in the UK. Such a decision to cancel their registration has effect from the time in the notice.
	Subsection (3AC) defines Condition B as a decision to cancel a person’s registration either wholly or partly on the basis that they have been convicted of an offence involving dishonesty or deception, or of an indictable offence.
	Subsection (3D) provides that where a decision has been made under paragraph 4A(e) of Schedule 6 IAA 1999, section 87(3B) of the IAA 1999 does not apply where Condition B has been met. In other words, where a person has been convicted of an offence involving dishonesty/deception or an indictable offence, the Tribunal Procedure Rules cannot permit the First-tier Tribunal to direct the 'relevant decision’ to have no or limited effect. This upholds the Commissioner’s 'relevant decision’ during the appeal.
	Subsection (4A) provides a non-exhaustive definition of the types of activities which constitute creating a "a risk of serious harm to the system of immigration control in the United Kingdom".
	Paragraph 6 of Schedule 1 makes amendments to Schedule 6 of the IAA 1999, inserting subparagraph 4AA and amending paragraph 4B.
	Subparagraph 4AA(1) gives the Commissioner power to suspend registration where they have reason to suspect the registered person is acting or has acted in a way which creates a risk of serious harm to persons seeking immigration advice or services, or creates a risk to the system of immigration control in the UK where it is deemed necessary to suspend that person’s registration.
	Subparagraph 4AA(2) allows the Commissioner to cancel a suspension decision under 4AA(1) where the Commissioner is no longer satisfied that a person is acting or has acted in a way which creates a risk of serious harm to persons seeking immigration advice or services, or creates a risk to the system of immigration control in the UK and that such suspension of a person’s registration is necessary.
	Subparagraph 4AA(3) requires the Commissioner to consider whether to cancel the suspension decision under 4AA(1) periodically (before the end of the first 7 working days beginning the working day after the day that the Commissioner issued the suspension notice, and each subsequent 7 working days thereafter). Subparagraph 4AA(4) introduces the right of appeal against the suspension decision.
	Subparagraph 4AA(5) provides a non-exhaustive list of what is meant by conduct creating a serious risk of harm to the system of immigration control in the UK. Subparagraph 4AA(6) defines "working day" for the purposes of paragraph 4AA.
	Subparagraph 4B(1) of Schedule 6 IAA 1999 is substituted with a new paragraph to reflect that the Commissioner may, by notice in writing, suspend a registered person where that person is charged with an offence involving dishonesty or deception, an indictable offence, or an offence under section 25 or 26 (1)(d) or (g) of the Immigration Act 1971.
	Subparagraph 4B(1A) sets out that the Commissioner may cancel the suspension by providing notice in writing to the suspended person. Subparagraph 4B(1B) gives a right of appeal to the First-tier Tribunal to a person whose registration is suspended under sub-paragraph 4B(1).
	Paragraph 6(4) of Schedule 1 inserts Subparagraph 4C into Schedule 6 of IAA 1999 to clarify that a person whose registration is suspended under paragraphs 4AA or 4B is not to be treated as a registered person for the purposes of section 84 IAA 1999. It also makes provisions for the way in which the Commissioner shall record the suspension of a person’s registration (or where such suspension is ceased).
	Paragraph 7 of Schedule 1 amends section 84 of IAA 1999 by inserting a new subsection (3C) which provides that a person’s entitlement to meet the definition of a qualified person by virtue of being supervised under section 84(2)(e) of the IAA 1999 is subject to new section 84A and regulations under new section 84B.
	Paragraph 8 of Schedule 1 inserts new subsection 84A to the IAA 1999 to provide circumstances under which a person may not be entitled to provide immigration advice under supervision as a qualified person by virtue of section 84(2)(e) IAA 1999. Circumstances include, by reference to sanctions under the IAA 1999, where a person is disqualified under paragraph 4 of Schedule 6 (convicted of certain immigration offences), suspended under new paragraph 4AA (on grounds of risk of serious harm) of Schedule 6 IAA 1999, or 4B of Schedule 6 IAA 1999 (charged with certain offences).
	Subsection 84A(2) provides that a person is not entitled to provide immigration advice or services under supervision, where upon appealing a decision by the Commissioner to cancel their registration under paragraph 4A(e) of Schedule 6 IAA 1999 (no longer competent or otherwise unfit) they were found by the Commissioner to have met the criteria of condition A (risk of causing serious harm) within new section 87(3AB) IAA 1999, causing the Commissioner to cancel their registration with immediate effect. The prevention from acting under supervision as a result of the notice given under section 87(3AB) IAA 1999 lasts for 12 months from the time specified in the notice which is the "relevant period" defined in new paragraph 84A(3).
	Subsection 84A(4) establishes that preventing a person from acting under supervision as a result Commissioner’s decision under section 87(3AB) IAA 1999 can be disapplied where either the Commissioner decides to register the person or continue their registration, or if the cancellation of that person’s registration is overturned on appeal (unless the effect of a further appeal reinstates that person’s registration cancellation).
	Subsection 84A(5) provides that a person is not entitled to provide immigration advice or services under supervision if they have appealed a decision by the Commissioner to cancel their registration under paragraph 4A(e) of Schedule 6 IAA 1999 (no longer competent or otherwise unfit), where they were found by the Commissioner to have met the criteria of condition B within new section 87(3AC) IAA 1999 (conviction of certain offences), where their registration was cancelled with immediate effect as a result.
	Subsection 84A(6) sets out that the prevention of a person from being able to provide immigration advice or services under supervision following a decision to cancel their registration under section 87(3AC) IAA 1999 does not apply if the offence is quashed or set aside, or if the Commissioner decides to register the person, or if the person’s registration cancellation is overturned on appeal (unless the effect of a further appeal reinstates that person’s registration cancellation).
	Subsection 84A(7) provides that a person other than those to which subsections 84A(1), (2), or (5) apply is not entitled to act under supervision where they have received any of the sanctions listed in subsection 84A(8), unless they disclose those sanctions to their prospective supervisor prior to entering into a supervision arrangement. Failing to disclose certain those sanctions will mean that the person does not meet the definition of a "qualified person" under section 84(2)(e) IAA 1999, and, if they continue to act under supervision, will have therefore committed an offence under s.91(1) IAA 1999.
	Subsection 84A(8) lists the sanctions received by a person under the IAA 1999 which they would need to be disclosed to their supervisor prior to them entering into a supervision arrangement. They include certain sanctions such as; directions by the First-Tier Tribunal or a disciplinary body with the effect of varying, restricting or suspending someone’s ability to provide immigration advice or services, receipt of a monetary penalty under new section 92C, or the decision by the Commissioner to cancel or suspend a person’s registration under new paragraph 4AA or 4B of Schedule 6 IAA 1999.
	Subsection 84A(9) provides that a person will not be required to disclose the sanctions specified under subsection (7) to their supervisor where, prior to entering into the supervision arrangement, the sanction had been reversed, cancelled quashed, overturned on appeal (where such sanction decision had not been reinstated as a result of further appeal). Disclosure is also not required where a person was sanctioned due to them having been charged with an offence under paragraph 4B of Schedule 6 IAA 1999 but that person is acquitted of the offence, the charge against them is withdrawn, or proceedings are discontinued.
	Subsection 84B establishes the disciplinary sanctions which are not set out within the IAA 1999 that may affect a person’s ability to act under supervision. Such sanctions will be specified by the Secretary of State in regulations and will include those established under the regulatory frameworks of "designated professional bodies", and/or "designated qualified regulators".
	Subsection 84B(1) grants the Secretary of State the power to specify, in regulations, the professional sanctions which will prevent someone from acting under supervision under section 84(2)(e) IAA 1999. Such sanctions include, but are not limited to, those with the effect of disqualifying or suspending a person from practising as a member of a ‘relevant profession’. The power for the Secretary of State to specify these sanctions in regulations will ensure that the list of applicable sanctions is kept up to date in line with any future changes to the regulatory arrangements of "designated professional bodies", or "designated qualified regulators".
	Subsection 84B(2) provides that the Secretary of State may specify, by regulations, the sanctions established under the regulatory frameworks of "designated professional bodies", or "designated qualified regulators" which will prevent a person from acting under supervision, unless they disclose such sanctions to their supervisor prior to entering into a supervision arrangement. If a person continues to act under supervision and does not disclose those sanctions prior to entering into a supervision arrangement, they will have committed an offence under s.91(1) IAA 1999.
	Paragraph 8 of Schedule 1 also inserts new section 84B into the IAA 1999. Subsection 84B(3) sets out the definition of "professional sanction", "relevant disciplinary body" or "relevant profession".
	Paragraphs 9, 10 and 11 of Schedule 1 insert new provisions into the IAA 1999 conferring powers on the Commissioner to impose monetary penalties on persons providing immigration advice or immigration services.
	Paragraph 9 inserts six new sections after section 92B (92C to 92H) into Part 5 of the IAA 1999 to allow the Commissioner to impose monetary penalties on people providing immigration advice or immigration services.
	Subsection 92C provides the Commissioner with the power to issue a penalty notice on the balance of probabilities that a person:
registered at the time it happened, has failed to comply with the Code of Standards, their duty to assist with the investigation of a complaint, any other requirement under Part 5 of the IAA 1999 or obstructing the Commissioner without reasonable excuse;
who is not registered has failed to comply with the duty imposed on them by paragraph 6(2) of Schedule 5 (a duty to assist with the investigation of a complaint); or
who was unqualified to do so has provided or advertised immigration advice or services (offences under sections 91 and 92B).
	Subsection 92C(9) further provides that the penalty may be either fixed or variable, limited to stated amounts, and amended by regulations.
	Section 92D provides the procedure for imposing penalties. This includes notifying the person of an intention to issue them with a penalty notice, what the notification must state and what the penalty notice must state (the deadlines are, by default, in calendar days). The Commissioner must have regard to any representations about the proposal to impose a penalty notice. The amount payable may be reduced in the event of early payment or increased if the deadline is missed.
	Section 92E sets out the appeals process against a penalty notice and provides that the requirement to pay is suspended during an appeal.
	Section 92F sets out the enforcement of penalty notices in the different jurisdictions of the UK.
	Section 92G states that the Commissioner must prepare and publish guidance about penalties, consulting as appropriate.
	Section 92H provides that a person may not be convicted of the offence for which they have been issued a penalty notice.
	Paragraph 10 of Schedule 1 amends section 166(5) of the IAA 1999 to provide that the regulations amending the amount of a fixed penalty notice and the maximum amount specified in a variable penalty notice are subject to the affirmative procedure.
	Paragraph 11 of Schedule 1 amends Schedule 5 to the IAA 1999 to add reference to the new power in 92C to impose monetary penalties for breaching the duty imposed by paragraph 6(2) underneath paragraph 6(3). It also adds reference to the new power in 92C to impose monetary penalties for breaching the Code or otherwise failing to comply with requirements imposed by or under the determination of complaints underneath paragraph 9(1).
	Paragraph 12 of Schedule 1 introduces new subsection 93A into Part 5 of the IAA 1999. It grants a power for the Secretary of State to specify, by order, the fees chargeable by the Commissioner to their registered organisations for exercise of various regulatory functions.
	Subsection 93A(1) sets out that the Secretary of State may by order provide for fees to be charged in respect of the Commissioner’s functions.
	Subsection 93A(2) sets out that the order may make provision for the charging of certain activities, which include, but are not limited to:
the taking of examinations
assessment of competence
changes to a person’s registration
training provided by the Commissioner to those providing or seeking to provide training
provision of access to training or materials by the Commissioner
provision of events by the Commissioner
accreditation of training or events
provision of advice by the Commissioner
	The Commissioner will retain the authority to waive all or part of the specified fee in particular cases.
	Subsection 93A(3) sets out that the order may result in fees being charged in respect of a function which exceed the costs of exercising that function.
	Subsection 93A(4) establishes that the Secretary of State, in specifying the amount of fees (noting that the fees charged may exceed the costs of exercising the function), may have regard to either (1) the costs of exercising the function, or (2) the costs of exercising any other function of the Commissioner.
	Subsection 93A(6) confirms that "registration" within this section means registration with the Commissioner under section 85 IAA 1999.
	Paragraph 13 of Schedule 1 substitutes paragraph 5 of Schedule 6 of the IAA 1999 with new paragraph 5 which states that no application made under section 93A will be entertained unless it is accompanied by the appropriate fee or covered by a fee waiver.
	Paragraph 14 of Schedule 1 amends Schedule 5 to the IAA 1999 to add paragraph 5(3)(ba), the provision of immigration advice or immigration services by a person not regulated by the Commissioner, to the list of complaints in paragraph 5(3) that can be investigated.
	It also amends paragraph 6(2) and adds new sub-paragraph 6(2A) to provide that the subject (whether an individual or body) of an investigation must assist the Commissioner and comply with any reasonable requirement, even if the individual has left since the immigration advice or services to which the complaint relates were provided and is no longer regulated by the Commissioner.
	It further inserts (1)(f) into paragraph 9 to allow the Commissioner to order unregulated persons to refund all or part of the fees they charged for the immigration advice or immigration services to which the complaint relates and/or to pay an amount specified by order as compensation in respect of any loss, inconvenience or distress suffered as a result of the provision of the advice or services.
	It inserts a new paragraph 9(1C) into Schedule 5 which allows the Commissioner to order a body which was regulated at the time to which the complaint relates, and is no longer regulated, to do the same. It clarifies that a body is relevant if the adviser was acting as the employee, officer, member or partner of the body when providing the immigration advice or immigration services to which the complaint relates, and that "officer" means a director, manager, secretary or other similar officer of the body.
	Paragraph 14 of Schedule 1 also inserts new subparagraphs 9(1D), 9(1E) and 9(1F) into Schedule 5 of the IAA 1999 which specify that the amount that may be ordered to be refunded or paid in respect of a complaint must not exceed £250,000, that this amount may be amended by the Secretary of State by regulations and that the Commissioner can specify a deadline for the refund or payment to be made.
	Paragraph 14(5) of Schedule 1 inserts new paragraph 9A to 9C into Schedule 5 of the IAA 1999. Paragraph 9A provides that the Commissioner must notify the person of an intention to order them to refund fees or pay compensation and consider any representations and objections before any order is made.
	Paragraph 9B provides for a person to make an appeal to the First-tier Tribunal against the Commissioner making an order.
	Paragraph 9C provides for the Commissioner to make an order for a person to refund fees or pay compensation, explains when the appeal rights have been exhausted and that the Commissioner may recover the amount due on behalf of the payee but only on application to the court, under the circumstances specified in the complaints scheme and with the payee’s consent.
	Paragraph 15 of Schedule 1 adds the provision in paragraph 9(1E) of Schedule 5 to the IAA 1999 ( allowing the Secretary of State to make regulations to change the amount that may be ordered to be refunded or paid in respect of a complaint ), to regulations that are subject to the affirmative procedure.
	The above provisions combine to create a civil recovery mechanism for fee refunds and compensation to be given to people provided advice by those not permitted to do so, as well as to victims of poor practice from both regulated and unregulated advisers.
	Paragraph 16 of Schedule 1 amends Schedule 5 of the Immigration and Asylum Act 1999 to set out that the Commissioner is to hold office for a term not exceeding five years. This does not affect paragraph 12(3) which states that the Commissioner is eligible for re-appointment when their term of office ends. This amendment is needed because there is currently no power to make short term or interim appointments should the need arise in line with other Public Appointments.
	The current regulatory regime is based upon there being an Immigration Services Commissioner and Deputy in post. Therefore, paragraph 17 of Schedule 1 makes an amendment to paragraph 16(1) of Schedule 5 to the 1999 Act to set out that the Commissioner may appoint a person to act as Deputy Commissioner. Should both the roles be vacant simultaneously, the majority of ISC regulatory functions could not be discharged. Paragraphs 17A(1) and (2) provide that a member of the Commissioner’s staff nominated by the Secretary of State may act in the Commissioner’s place in certain circumstances. This provision is not designed to replace the Secretary of State’s provision to appoint a Deputy Commissioner, but to be used in extremis to avoid a gap in regulatory oversight.
Part 2: Asylum and Immigration The Immigration Services Commissioner Section 43: Immigration advisers and immigration service providers Schedule 1