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.