It turns out that the muppets* at the Ministry of Justice have laid regulations that at first glance appear to forbid English and Welsh barristers and solicitors from appearing in the immigration tribunal in Scotland and Northern Ireland but which permit Scottish and Northern Irish equivalents to appear in England and Wales. This has been known for some time but it was hoped that something could be arranged quickly. That has not transpired and for the first time, as far as I am aware, an English barrister has now been refused a right of audience at Eaton House in Glasgow.
It wasn’t me, before you ask.
The legal background is convoluted, to say the least, and I’m grateful to ILPA for circulating information about this (click here for a membership form if you want to be kept in the loop).
Under sections 84 and 91 of the Immigration and Asylum Act 1999, it is an offence to provide immigration services (including representation at a tribunal) if a person is is not a ‘qualified person’. There are various routes under section 84(2) to being a ‘qualified person’:
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.
English barristers are accustomed to being qualified persons under section 84(2)(c), because under section 86(1) of the Act the General Council of the Bar was listed as a designated professional body:
“Designated professional body” means—
(a) The Law Society;
(b) The Law Society of Scotland;
(c) The Law Society of Northern Ireland;
(d) The Institute of Legal Executives;
(e) The General Council of the Bar;
(f) The Faculty of Advocates; or
(g) The General Council of the Bar of Northern Ireland.
However, in amendments introduced by Schedule 18 of the Legal Service Act 2007, Parts 1 and 2 of which were brought into force on 1 April 2011 by the Legal Services Act 2007 (Commencement No. 10) Order 2011 (SI 2011/720), the Law Society, the Institute of Legal Executives and the General Council of the Bar were all removed from the list of designated professional bodies. The other bodies, such as the Law Society of Scotland and Faculty of Advocates, were left in place.
However, a new section 86A to the 1999 Act was created at the same time. This introduces ‘designated qualifying regulators’, under which the Law Society, the Institute of Legal Executives and the General Council of the Bar were all listed. This is now the route by which English and Welsh solicitors and barristers are permitted to provide immigration services, under the new section 84(3A) to the 1999 Act.
The difficulty is that section 84(3A), unlike section 84(2), states that the authorisation to provide services “does not extend to the provision of such advice or services by the person other than in England and Wales”.
So, a Scottish solicitor or advocate can appear in England and Wales under the original provisions of the 1999 Act, namely sections 84(2)(c) and 86(1), which have no geographical limitation. A Northern Irish solicitor or barrister can also appear in Scotland under the same provisions. An English solicitor or barrister cannot reciprocate in Scotland because he or she only has permission to practice in immigration law under the new geographically limited provisions of sections 84(3A) and 86A of the same Act.
It should be pointed out that OISC registered or exempted advisers may continue to appear in Scotland and Northern Ireland under sections 84(2)(a) and 84(4) respectively. It is only solicitors and barristers who are caught out by this change, ridiculously.
There is a possible get out clause that drives a coach and horses through the new provisions. This is not my idea, I confess, but I’m reluctant to attribute it as it was part of a private conversation. The ‘qualified persons’ at sections 84(2)(d) and (e) are European equivalents, registered or authorised ‘in another EEA State’. Unlike, for example, the Immigration (European Economic Area) Regulations 2006 there is no specific, explicit provision that states that England and Wales or the United Kingdom are not considered to be EEA States. It could be said that an English barrister or solicitor is qualified in another EEA State. The difficulty lies with the word ‘another’ but given the obvious unfairness of these provisions it may be that this is sufficient.
Or we can all go and get registered with the OISC. I was once regulated by the OISC but I’m buggered if I’m going to do so as some sort of work around that my Scottish and Northern Irish equivalents need not bother with.
- I am assuming for the purposes of this post that this is accidental rather than deliberate. If it was deliberate it is gross discrimination on the basis of nationality and/or ethnic origin and it is difficult to imagine any possible justification for it.
7 responses
That’s nuts! I can present a case as an English OISC advisor in Scotland but an English immigration barrister with years of experience, cant. Rediculous.
While agreeing this is a cock-up (apparently driven by the failure of all concerned to spot, when promulgating legislation, that there is a teensy little difference between ‘England and Wales’ and ‘the United Kingdom’), I wonder if it is really deserving of this concern.
In the first place, so far as legal aid is concerned, English legal aid has not for many years paid for English counsel in tribunals in Scotland (or Scottish counsel anywhere), and Scottish legal aid has never paid for Scottish counsel in English tribunals, so the rights-of-audience issue is confined to fee-paying and pro bono tribunal appearances which are few in Glasgow. Scottish Legal Aid Board will normally sanction the employment of (Scottish) counsel reasonably readily, and I don’t understand that there is much difficulty in finding competent counsel here. Without making invidious comparisons, the standard of the Scottish immigration and asylum junior bar is clearly no lower than the English.
In the second place, because LA is available for Scottish counsel in Scotland, I wonder how many of this small number of cases are really ones where legal aid ought to have been applied for from SLAB, but instead the client or family is told by English lawyers they have to fund the case privately; if so, the restriction on rights of audience is for the protection of the client. I don’t think many if any of these cases have millionaire clients.
In the third place, although it is formalistically true that Scottish counsel can still appear in immigration and asylum tribunals in England, it is unheard of for English solicitors (or direct access) to instruct them there. Although the restriction you describe is artificial and wrong, it isn’t made more so because we have rights you don’t. The real imbalance, or to use your words ‘gross discrimination on the basis of nationality and/or ethnic origin’, is the insistence of English solicitors that only English counsel will do- the shock/horror at the idea of being barred from using English counsel in Scotland is, to me, set off by the shock/horror that because I am a Scot I will never be instructed by English advisers in the tribunal in London, as is hard reality.
So the imbalance or unfairness described above is nominal, although clearly it shouldn’t exist, and it may well have a client protection aspect by accident (of which a further aspect is, if defeated in the tribunal, advice on seeking JR in the Court of Session on post-Eba principles).
I was very struck when I was arguing Eba in the Supreme Court that, although for the previous year there had been clear forum-shopping advantages in seeking JR of the Upper Tribunal in the Court of Session rather than the English court, and indeed HMG made much of this, there hadn’t been a single case from England in which this had been sought. Not one. Patriotism, or national blindness, had trumped the best interests of the client in those cases that were put in to the English courts for inevitable defeat. Similar perceptions possibly underlie some of the complaints here.
You say you are prepared to assume it is a mistake – but how did the matter come up at Eaton House? Did the judge raise it? If so one assumes they have been briefed – helpful though your explanation of the provisions is (as always) I can hardly believe it is the sort of point that just crops up. Maybe the barrister raised it him/herself?
A very senior and English member of the Upper Tribunal apparently made a fuss about the whole thing a few weeks ago, and it sounds like the local IJs rather reluctantly felt compelled to follow suit. English qualified lawyers have been told they can’t even speak to their clients in Scotland, until they cross the border going south again. Presumably with their tails between their legs.
Word from ILPA is that the changes are in fact deliberate. Click here for a membership form, if you are not already a member, to stay in the loop.
Just to respond to FM’s question regarding dispersal to Glasgow (and therefore, Scotland). Dispersal is still ongoing to Scotland and Glasgow remains the only city where there is accommodation for asylum seekers. The change is that Glasgow Ciity Council are no longer one of the three accommodation providers.
I wonder if the extreme embarrassment caused around 10 years ago in Gardi is still a factor (The CA had to declare their decision a nullity as the original decision was made by an adjudicator sitting in Scotland and so the appeal from the IAT should have been heard by the Court of Session). Perhaps the motivation of the member of the Upper Tribunal you mentioned above was to ensure that the Tribunal does not suffer the same embarrassment?
On the issue of reciprocity (although only tangentially relevant!) I recently discovered that Hong Kong lawyers can transfer their qualification to the UK but the reverse is not allowed. Are English lawyers becoming a persecuted group?!