Immigration advice: Gap in legislation
Regulators must tighten their rules on training and supervision of unqualified immigration advisers, a major report has recommended.
The report on the immigration appeals system by law reform group JUSTICE also called for limits on the introduction of virtual trials and video conferencing under the court modernisation programme.
JUSTICE said it was concerned by a “gap” in the operation of the Immigration Act 1999, which allows immigration advice to be provided by unqualified advisers acting on behalf of and supervised by qualified staff.
“While we accept the need for trainees to gain experience, we heard of many examples of unsupervised, unqualified persons giving immigration advice.
“To compound this, the work of unqualified caseworkers may be charged at qualified rates. Either the legislation needs tightening, or regulation in this area must be more effective.”
JUSTICE said the Solicitors Regulation Authority (SRA) and Office of the Immigration Services Commissioner (OISC) argued that the status quo enabled trainees to gain experience, but their requirements must be tightened to “improve fairness, efficiency and quality of advice”.
The report, Immigration and Asylum Appeals – a Fresh Look, was the product of a working party chaired by former High Court judge and Solicitor-General Sir Ross Cranston, professor of law at the London School of Economics.
JUSTICE called on the courts, rather than the regulators, to lead the way in cracking down on “incompetent and dishonest” immigration lawyers.
“During the course of our inquiry, we were troubled by examples we encountered of unsupervised and unqualified persons giving advice and assistance on immigration matters, representatives who had exploited vulnerable clients, and those who were incompetent and, in a few cases, dishonest.”
One working party member complained of an “appalling case” where “the client was told my fee was five times what it actually was” and “the solicitor, from an ostensibly reputable company, was pocketing the difference”.
JUSTICE said the SRA and the OISC had increased their efforts to investigate such cases, but “serious problems” persisted.
“We were loath to add additional accreditation burdens for good practitioners and we also recognised that it is not necessarily a lack of legal knowledge and experience which leads to the launch of meritless claims.
“However, we were surprised to learn that the OISC standard of accreditation is not equivalent to the Law Society’s immigration and asylum accreditation standards. We could see no immediate justification for that.”
Instead, the working party said the immigration and asylum chamber of the First-tier Tribunal should “collect and retain information, with contemporaneously recorded reasons” where it concluded that practitioners had provided poor-quality service, and where claims were certified as totally without merit.
On the court modernisation programme, the working party said it offered an opportunity to improve processes in the tribunal but it had “concerns about video conferencing and the use of virtual hearings”.
The report recommended that judges retain discretion over whether or not to proceed “in the traditional way” and the “wholesale use of video conferencing” should not go ahead without further research.
JUSTICE said that initially video or virtual hearings should only be used for case management hearings, cases in which the parties were agreed and those in which the appellant could not be present.
“HMCTS should proceed with caution in its implementation of the reform programme in the immigration and asylum chambers, testing each advance thoroughly, introducing each change incrementally and carefully monitoring outcomes before proceeding to introduce the next change.”
Sir Ross commented: “The immigration and asylum appeal system suffers from widely reported deficiencies and a culture of non-compliance with the rules and practice directions.
“This leads to high volumes of cases in the appeals system and lengthy delays. The working party recognised that the reforms underway present an opportunity to improve the processes, but considered that further measures are needed to effect meaningful change.”
Leave a Comment