Changes to the OISC Complaints Scheme
31/10/2011
This document summarises the responses received to the Immigration Services Commissioner’s (Commissioner) consultation on changing the standard of proof required in determining complaints as stated in the proposed changes to the Office of the Immigration Services Commissioner’s Complaints Scheme, (the Scheme). The Consultation proposed modification of the following paragraph of the Scheme:
"In determining complaints, the Commissioner's usual standard of proof is the civil standard, that is the balance of probabilities. However, if dishonest/illegal activity is alleged, the Commissioner will apply the criminal standard of proof to that element of the complaint, being beyond reasonable doubt."
As explained in the consultation document, the House of Lords decision in re B (Children) [2008] UKHL 35 had been brought to the Immigration Services Commissioners (the Commissioner) attention and in particular the remarks of Lord Hoffman in that case. Considering his comments, she decided to consult on amending the Scheme so that the civil standard of proof would apply to all complaints determined by her.
The Consultation Process
In accordance with Schedule 5, paragraph 5(2) of the Immigration and Asylum Act 1999, the Commissioner wrote between the 15th and 25th August 2011 as required by the legislation and to other persons who appeared to her to represent the views of persons engaged in the provision of immigration advice or immigration services as she considered appropriate.
With respect to the latter category, the Commissioner wrote specifically to the Legal Services Board and to the Immigration Law Practitioners Association (ILPA), the Association of Regulated Immigration Advisers (ARIA) and notified all OISC regulated advisers of the consultation. The Commissioner advised the United Kingdom Border Agency (UKBA) that the consultation was taking place.
Respondents
The Commissioner received replies from the following bodies:
The General Council of the Bar of Northern Ireland
Bar Standards Board (BSB)
The Faculty of Advocates (FOA)
The Institute of Legal Executive (ILEX)
ILEX Professional Standards
The Immigration Law Practitioners Association (ILPA)
The Law Society of England and Wales
The Law Society of Scotland
Legal Services Board (LSB)
Solicitors Regulation Authority (SRA)
The Commissioner also received responses from 11 regulated advisers.
Comments Received
All of the organisations which responded with the exception of the Law Society of England and Wales were either in favour of the change or had no comment to make on the proposal. In particular, certain regulators of legal professionals (SRA, BSB, ILEX, FOA) supported the change proposed. The LSB provided examples to assist in the Commissioners thinking on the issue.
ILPA suggested that the Commissioner discuss the matter with the SRA, ILEX and the LSB. As mentioned above, all of these bodies were consulted.
Six of the regulated advisers who responded were in favour of the change, while four were against and one used the consultation to comment on another issue.
Decision
Having considered the responses received, and, in particular, those bodies which regulated the legal sector, the Commissioner has decided to amend the Scheme as from 1st November 2011 to read as follows:
"In determining complaints, the Commissioner's standard of proof is the civil standard being the balance of probabilities."
Suzanne McCarthy
Immigration Services Commissioner
31st October 2011
