Guidance

Welcome to the OISC Online Presentation HTML

Updated 21 March 2019

Congratulations on becoming registered with the Immigration Services Commissioner.

This on-line presentation is designed to offer an overview of your responsibilities to the Commissioner and covers topics that will affect you while you are registered. This will very much be a broad-brush approach with further on-line presentations being developed that will cover some of the topics in more detail.

The Commissioner has a general duty to promote good practice by those who provide immigration advice or services and, as part of the regulatory function, ensure that registered advisers are, and remain, both fit and competent. This requirement is rigorously applied to both individuals and organisations seeking entry to the scheme and those already within it.

Some of you will be starting work as an immigration adviser with an existing registered organisation, while others will be setting up a new business. The Commissioner’s Code of Standards sets out which responsibilities are for the business, and which are for individual advisers.

For those setting up a new business, being aware of the responsibilities of the organisation from the outset, will help you set up practices that build compliance into the system. This on-line presentation will help you get started.

For those joining an existing organisation, it is important that you are able to identify if it operates in a compliant manner, and has processes in place to allow you to operate in such a manner. Again, this on-line presentation will help you to identify important responsibilities that advisers, at times, get wrong.

Aims

This on-line presentation will offer an overview and guidance on the responsibilities an adviser and organisation has to the Commissioner and to clients. These are:

1. To remain fit and competent
2. To comply with the OISC Code of Standards
3. To act in the best interests of their clients

Objectives

This on-line presentation covers three principal areas:

1. Records and record keeping
2. How the OISC assesses ongoing compliance
3. Working with the OISC

Chapter 1: Records and Record Keeping

This chapter covers:

• Record keeping
• Financial records
• Client care opening and closing letters
• Client list

Record Keeping

Of registered organisations audited in 2017/18, 63% were found to maintain insufficient records.

The necessity of good record keeping cannot be over emphasised. Such records are a way of demonstrating an adviser’s competence to the Commissioner.

Record keeping is vital to ensure that:

• you are clear on what the client is asking you to do
• you are protected if the client later suggests you misunderstood them, or acted without or against their instructions
• you can cost the work accurately for a client if ever challenged
• you can provide your client with a clear record of actions taken should they need to progress their matter with another adviser or representative in the future
• you comply with the Code requiring you to keep ‘adequate’ records

An ‘adequate record’ of all interactions, as required by the Commissioner, would include everything relevant to a client’s case, such as:

• details of instructions taken
• advice given (including the merits of any proposed action)
• action taken and by whom
• attendance notes of any meetings or conversations between you, the client and any relevant third party, must include a full record of the discussion
• financial records
• notes should be dated and it should be clear who wrote them

It is imperative that the note made of the first substantive meeting or conversation between you and the client must include full details of the client’s immigration history, the instructions taken, advice given and action agreed. Case records should include copies of all relevant correspondence with the client or third parties such as application forms and supporting evidence.

While client records can be held either on paper or within electronic files, such records must be maintained in an orderly manner with the progress of each case being clearly recorded.

When considering record keeping it is useful to think about how such records will be accessed. If a client requests a copy of their case file, will you be able to produce it easily? What will happen if they need their file and you are abroad or unwell? Similarly, if the Commissioner asks you to produce a copy of a particular case file because they have received a complaint will you be able to locate it quickly? This will be much easier to do if all the documents and correspondence are kept together in one place.

In summary, you need to consider both the quality and efficiency of the records you make and how you store them. The Codes are not prescriptive on how you do this but records must be sufficiently detailed and must be accessible to those who need them.

Financial Records

Fee charging organisations are required to keep financial records of transactions with clients. When these financial records are examined during an audit, it must be clear whom each payment relates to.

There must be documentary evidence of you issuing invoices and receipts to each client.

If you have a client account you should use it to hold fees paid in advance until the work has been completed.

Client Care Opening and Closing Letters

These are fundamental documents to ensure the client is aware of the work to be done and the work completed. Of organisations audited in 2017/18, 75% were found in breach of diligence in client care.

A good client care letter:

• will be client specific, taking into account their particular circumstances
• will contain a record of their immigration history
• details their instructions to you
• details your advice and assessment of the merits of the proposed application
• and details the agreed action

Before undertaking any further work on behalf of the client, you must ensure you receive confirmation from them that they have read the client care letter and agree to the content. This can be done by signing and dating the letter or by sending confirmation to you by email or other electronic means.

While any new or significant changes to existing instructions may not require you to issue a new client care letter, you must confirm these instructions and your advice to the client in writing.

Upon concluding a client’s case, it is not sufficient to write to them stating only that you have closed their file, and will retain it for six years.

The closure letter you issue must include:

• confirmation of their immigration status
• any dates or restrictions on their leave
• a list of the original documents being returned to them
• and a financial statement confirming whether your fee has been paid in full, or stating the amount still outstanding

Client List

A client list must be maintained and it is recommended that you set this up as soon as your OISC registration has been approved and you start being instructed.

The information your client list should include is: * the client’s name * a case reference number * a description of the work being undertaken and the level it falls within as the same person may instruct you on a number of matters * date the file was opened and closed * the name of the adviser dealing with the case if there is more than one at your organisation

The client list will be used by the OISC during audits.

Please note that the OISC has the facility to check your list against the information held by the Home Office.

Chapter 2: How we Assess Ongoing Compliance

This chapter covers:

• Premises audits
• Complaints
• Complaints re-direction scheme
• OISC complaints scheme
• Continuing professional development

Premises Audits

One way that we can ensure you are complying with the Commissioner’s Code of Standards and remain both fit and competent, is through the premises audit process. This involves your OISC caseworker undertaking a review of your case files, policies and procedures. It is also an opportunity for you to raise any issues you may have.

Each year the OISC selects a number of organisations to audit. If you are a newly registered organisation it is likely that we will want to audit you after you have been practicing for some months so that we can see how you are getting on.

You will be contacted to arrange a date on which the audit can be undertaken and prior to this you will be asked to provide a client list detailing the cases you have worked on, including the information as detailed in the ‘Client List’ section earlier.

On the day of the audit, all case files will need to be made available so that the caseworker who attends can randomly select those they wish to review. All the policies and procedures you submitted with your application for registration, as well as your financial records, should also be available for inspection on the day.

Normally the caseworker will arrive for the audit around 10am and will have an initial discussion with you after which the majority of the day will be spent on their review of your case files. They may need to speak to you during the day, or to other members of staff, but normally you will be able to conduct other work in the office on the day.

After the review of your files, policies and procedures, the caseworker will provide you with feedback on their findings. This is your opportunity to discuss any points where there may have been a misunderstanding. After this discussion, the caseworker will let you know if and where improvements can be made and arrange a date for a follow-up audit if required.

Following the audit, you will receive a report identifying the issues raised, if any, and the action you need to take to ensure you are fully compliant with the Code of Standards.

Complaints

The OISC has two methods of investigating complaints:

1. OISC complaints scheme
2. Complaints re-direction scheme

While you hope that all clients will be satisfied with the immigration advice and services they receive from you, there may be occasions when they are not satisfied and wish to complain. On these occasions, you should encourage the client to approach you first as you may be able to resolve their problem more quickly than the OISC. .

For newly registered organisations and newly authorised advisers, being notified that a complaint has been made against you can be distressing. It is important to understand that although an allegation has been made against you, it is only an allegation and the fact that the OISC is looking into it, does not mean we believe you have done anything wrong.

We are required to consider all complaints made to us. The key issue concerning complaints is to work with us so that the matter can be concluded as soon as possible.

If the OISC decides the complaint should be investigated, a decision will then be made as to whether the complaint should be redirected to you to investigate under your organisation’s complaints procedure or passed to an OISC caseworker to investigate. It is the OISC’s duty to consider not only the issues the client has raised but also any other issues which may demonstrate your failure to comply with the Code of Standards and which raise issues as to your fitness or competence.

Complaints Re-Direction Scheme

Should the complaint be re-directed to you to investigate, the OISC will have oversight and you will be asked to provide a record of your investigation. It is hoped that the redirection process may lead to a speedy resolution to the client’s complaint. However, please note that if the Commissioner remains dissatisfied by the way the complaint has been investigated, the complaint may be passed to an OISC caseworker for investigation.

OISC Complaint Scheme

When a complaint is investigated by the OISC, you will be provided with details of the issues raised by the client in a Statement of Complaint. You will then be given the opportunity to respond to the potential breaches of the Code of Standards. The Commissioner’s Complaints Scheme requires you to comply with all reasonable requests during the investigation.

At the conclusion of the investigation, a determination will be issued to you and the client. In determining complaints, the Commissioner’s standard of proof is the civil standard, being on the balance of probabilities. The Complaints Scheme is evidence based which is another reason for you to retain adequate client records, as these will be relied upon during the investigation.

The potential outcomes from having a complaint substantiated against you are set out in the Commissioner’s Complaints Scheme. The majority of substantiated complaints record a breach of the Codes on your record and you are expected to learn from the issues raised and take steps to ensure compliance in future. In this instance, the OISC may issue recommendations and practice points.

A very serious complaint finding could result in your authorisation to practise being cancelled.

Continuing Professional Development (CPD)

CPD is one way of ensuring that those advisers who the OISC has assessed as being fit and competent, remain so. The OISC’s CPD scheme is principle-based with a focus on learning outcomes that can be put to practical use when dealing with clients’ cases.

The Commissioner requires each adviser to have a CPD training plan and record in place that details their training needs, how these needs will be met and to keep evidence of training completed.

Advisers need to keep up-to-date with changes to the Immigration Rules, Home Office policies and case law and a suggested way to do this is to join a membership organisation that sends out regular updates. Advisers also need to keep up-to-date with their OISC obligations, for example by reading the OISC newsletters and on-line presentations.

Organisations should build in training and study time for their advisers and ensure that systems exist to identify their training needs, such as through performance reviews and appraisals. Completed training should be evaluated to ensure relevance and value, and if it did not meet the training needs then a different approach should be used next time.

Organisations also need to identify the training and development needs of the business itself. These could include:

• IT skills
• obligations under the protection of information
• skills in maintaining adequate records and accounts
• as well as softer skills like communication

The OISC runs a number of workshops during the year, to which you will be invited. The subjects covered include:

• complaints
• audit and compliance
• consumer satisfaction, and
• professional ethics

As well as being informative, these workshops provide advisers with an opportunity to meet and network with other advisers and OISC caseworkers.

Chapter 3: Working with the OISC

This chapter covers the following subjects:

• Organisation Websites
• Change of Circumstances
• Continued Registration
• Contact with the OISC

Organisation Websites

If you have a website for your organisation, or are thinking of setting one up, you need to ensure it features your OISC registration number and accurately reflects your organisation and those advisers within it as it could be your main source for attracting new clients. It should contain information that helps a client decide to choose you as their adviser, for example by showing your fee structure, the type of work that you do and your experience.

The website should not contain any potentially misleading information such as suggesting that the organisation comprises a team of authorised advisers if, in fact, it consists of a sole adviser. Statements must not be made about organisations’ or advisers’ success rates, and promotional material must not criticise other organisations or advisers.

In addition, where an organisation is newly registered with a small client base, it would be wrong for it to be described as being an established company and a market leader in immigration.

Changes of Circumstances

You must notify the Commissioner within 10 days of any changes taking place that may affect your, and your organisation’s, fitness or competence.

Changes could include:

• a new adviser joining the organisation;
• an adviser having an extended period away from the office or leaving;
• ceasing to provide immigration advice or services;
• changing address;
• an adviser or any person owning and/or running the organisation being subject to bankruptcy proceedings;
• if any adviser, or any person owning and/or running the organisation is arrested, charged, cautioned or convicted; and
• if an adviser, or any person owning and/or running the organisation is investigated by the police or the Home Office.

Please note that the list is not exhaustive so you should contact your caseworker if you are unsure whether you need to notify the OISC of any change.

Continued Registration

A couple of months before your organisation’s registration year is due to expire, a letter will be sent inviting you to reapply for continued registration. When making your application you can include new advisers and raise the registration level of an individual adviser or the organisation itself. You can also register a new legal entity, for example if you change to a limited partnership from a sole trader.

If it is not possible for the OISC to make a decision prior to the expiry of your current registration year, your licence will be extended and you can continue to provide immigration advice and/or services at your existing level.

While an application to increase the registration level of an organisation or individual adviser, or to register a new legal entity, can be made at any time, it is worth doing this at the continued registration stage to avoid paying two registration fees in one year.

Contact with the OISC

In the letter approving your registration, you will have been provided with contact details of your organisation’s compliance caseworker. While this caseworker will be responsible for your organisation’s overall registration, they may not always deal with straightforward individual adviser applications or continued registration applications.

If your organisation consists of a number of advisers, any contact with your caseworker, or the OISC as a whole, should be via your organisation’s primary contact.

Information on regulatory matters can be found on the OISC website and through OISC Newsletters.

Before contacting your caseworker, the OISC’s website should be the first place to look for information if you are unsure of anything. Useful information that can be found here includes:

• Code of Standards
• Guidance on Competence
• Guidance Notes
• Practice Notes
• presentations and training
• how to apply for continued registration
• how to increase your level of authorisation
• how to add a new adviser

Another source of information is the OISC newsletter that contains articles on a range of regulatory matters. This is generally issued every quarter and is placed on the website, together with older newsletters.

Outcomes

Now that we have come to the end of this on-line presentation, you should be aware of:

1. The requirements the Commissioner places on individual advisers and organisations
2. Records and record keeping
3. How the OISC assesses ongoing compliance
4. Working with the OISC

Thank You

Thank you for taking the time to complete this on-line presentation and we hope that you have found it to be useful and informative.