7 Responses

1. 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.

2. 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.

   1. Thanks for your comment, and good work on Eba, for what it is worth! I was literally just starting a write up of it for the Butterworths Immigration Law Service when I decided to check the blog to avoid proper work.

      I’ve never been instructed to appear in Scotland or Northern Ireland but members of my chambers have. The law concerned is UK immigration law as, for better or more likely worse, there are no different immigration laws or rules in Scotland. There is perhaps a different emphasis in the jurisprudence, but it doesn’t amount to a separate system: I’ve watched the divergence in approach in judicial review with interest, and it does seem to me that Scottish higher court judges are less tired of immigration work than their English and Welsh counterparts. As far as I am aware there are no differences at all in Northern Ireland.

      I’ve lost track of what is going on with dispersals (I think Glasgow is no longer used for accommodation?) but it wasn’t that unusual for a client to be based in London, sort themselves out with preferred lawyers but then end up in Glasgow. Sometimes they chose to retain their original lawyers, who have established relationships with counsel. There are also plenty of clients, often privately paying, who for various reasons prefer to use solicitors from their own communities – it saves on translation costs apart from anything, I imagine. I’m not sure that there are that many specialist immigration firms in Scotland, particularly from minority communities – but I may well be completely wrong about that.

      What you say about legal aid interests me. In my experience most of the work down here is privately paying, and in England and Wales all of it will be, other than asylum work, once the legal aid changes kick in.

      What particularly rankles about this is the lack of reciprocation built into the amended legislation and the fact that OISC advisers can appear in all three jurisdictions. Frankly, when it comes down to it, it is insulting.

3. 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?

   1. 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.

4. 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.

5. 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?!