One of the more rewarding aspects of the developing chambers and my practice as a direct access immigration barrister has been the tie-ups I have had with a number of excellent OISC firms. This has lead me to thinking that a short blog post might be in order to explain what can be done.
The background to this stems from s.84 of the Immigration and Asylum Act 1999. This was a real watershed in the provision and regulation of immigration advisors. Prior to the implementation of s.84 anyone and I mean anyone could provide immigration advice. It was totally unregulated. I recall prior to its implementation when working for the Treasury Solicitor Department being confronted with cases that were prepared by people who could barely right let alone speak English and who were representing, if not properly exploiting their clients. One case I recall had a Polish client being represented by an individual whose English was so poor that half way through the hearing she (the Appellant) took over and not only gave evidence but made submissions to the Adjudicator.
Section 84 of the Immigration and Asylum Act 1999 provides:
84 Provision of immigration services.
(1)No person may provide immigration advice or immigration services unless he is a qualified person.
(2)A person is a qualified person if—
(a)he is registered with the Commissioner or is employed by, or works under the supervision of, such a person;
(b)he is a member or employee of a body which is a registered person, or works under the supervision of such a member or employee;
(c)he is authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body, or works under the supervision of such a person;
(d)he is registered with, or authorised by, a person in another EEA State responsible for regulating the provision in that EEA State of advice or services corresponding to immigration advice or immigration services or would be required to be so registered or authorised were he not exempt from such a requirement;
(e)he is authorised by a body regulating the legal profession, or any branch of it, in another EEA State to practise as a member of that profession or branch; or
(f)he is employed by a person who falls within paragraph (d) or (e) or works under the supervision of such a person or of an employee of such a person.
(3)If a registered person’s registration has limited effect (by virtue of paragraph 2(2) of Schedule 6), neither paragraph (a) nor (b) of subsection (2) authorises the provision of advice or services falling outside the scope of that registration.
(4)Subsection (1) does not apply to a person who—
(a)is certified by the Commissioner as exempt (“an exempt person”);
(b)is employed by an exempt person;
(c)works under the supervision of an exempt person or an employee of an exempt person; or
(d)who falls within a category of person specified in an order made by the Secretary of State for the purposes of this subsection.
(5)A certificate under subsection (4)(a) may relate only to a specified description of immigration advice or immigration services.
(6)Subsection (1) does not apply to a person—
(a)holding an office under the Crown, when acting in that capacity;
(b)employed by, or for the purposes of, a government department, when acting in that capacity;
(c)acting under the control of a government department; or
(d)otherwise exercising functions on behalf of the Crown.
(7)An exemption given under subsection (4) may be withdrawn by the Commissioner.
The purpose of s.84 was to restrict the provision of immigration advice to those suitably qualified, this included barristers, solicitors and those registered by the OISC (Office of the Immigration Service Commissioner – website https://www.gov.uk/government/organisations/office-of-the-immigration-services-commissioner). In addition to the above there are also a number of other exceptions but for the purposes of this post they are not relevant.
The effect of the OISC has been to remove the worst of the unqualified charlatans that have plagued this area of law and have drawn it into disrepute.
A positive factor of the OISC is that is has allowed people who are not perhaps lawyers in the strictest sense to be able to provide quality advice, for example I work closely with individuals who have been providing immigration advice for over 15 years and who previously, for example, worked for the Home Office, either as caseworkers or presenting officers. Clearly such people bring with them a vast amount of experience and inside knowledge as to how the process works. I have also met and worked with people have law degrees and have been called to the bar or completed the LPC but have not had pupillage or a training contract.
The OISC allows different levels of qualification to be acquired and I have been struck by the quality and professionalism shown by some firms. Indeed one firm I rate highly is United Kingdom Immigration Services (“UKIS”) based in West London and headed up by the excellent Nelam Trewin. I have had a number of referrals and instructions from them and have found them to be the equal of and indeed better than a great number of immigration solicitors.
How does this tie in with me as the direct access immigration barrister?
Well it ties is perfectly in a few ways.
Judicial review is perhaps the neatest tie in. One of the reasons for writing this blog is that I had a couple of conferences yesterday with two firms (Pasha Immigration and Jackson Immigration) both in Croydon and both of whom impressed me greatly with their commitment and ability. The conferences related to potential and extant judicial review claims.
One thing that OISC firms cannot do is litigate in respect of JR claims, and this is where I can come in. I have had numerous referrals of late from OISC firms in addition to the long standing relationships with firms such as UKIS. I have been able to advise and on some occasions take on the case for the JR stage of the process. It works well and seems a natural fit. I have done numerous JRs on this basis, often with the goal of obtaining a right of appeal, I am ideally placed, given my experience to process the JR claim and when success has been achieved in referring the claim back to the firm so that they can arrange and deal with any consequential appeal.
This ties in with the second aspect which is that of taking instructions (the OISC expressly licenses quality advisors to instruct Counsel directly) from such firms, these instructions have included everything from providing advice, to attendance at appeal hearings.
The purpose of this blog is really to inform those who read it and who are either OISC qualified or have instructed an OISC representative that if there is something outside their remit then I and my dedicated team are available to help. Often this help can be no more than a conference with me being able to provide a fresh pair of eyes on the case and sharing my experience and on other occasions this can lead to dealing with complex JR applications. Another benefit of instructing me or indeed other Counsel is that if a JR is properly prepared and its successful then the clients have a much better chance of recovering their costs than if they were just doing it on their own or without a lawyer on record. This is of vital importance at present as I and other colleagues have noticed that the Upper Tribunal are not yet fully experienced with costs and have been making some strange decisions.
If you are an OISC registered firm and would like to discuss with me working together please feel free to get in touch, its always nice to speak to other people in this field and to develop relationships, and see what can be done. I am always happy to meet in chambers or if you wish to come and visit you as I believe that a successful relationship is best based on personal interaction, in short, people do business with people they like and trust.
Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, he also practises from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.