A Scottish lawyer can represent a client in the immigration tribunal anywhere in the UK. The same is true of a Northern Irish lawyer. The same is true of a level 3 adviser registered with the Office of the Immigration Services Commissioner.

Lawyers practising in England and Wales do not have the same luxury. They can only represent a client if the tribunal is in England and Wales.

Colin covered this long-standing anomaly as far back as 2011. But COVID-19 – and the prevalence of remote hearings – has added an extra layer of complexity.

What happens if the lawyer is in England and Wales, but the tribunal judge is in Scotland? Is the tribunal now sitting in Scotland, requiring Scottish representatives to be instructed?

No, it is the geographical location of the person providing the immigration advice that counts.

This was the conclusion of the President and Vice President of the Upper Tribunal in Akhtar (Designated Qualifying Regulator, s 84(3A)(b) restrictions) [2022] UKUT 38 (IAC).

The problem

The underlying legal problem is section 84(3A) of the Immigration and Asylum Act 1999. This says that a person’s entitlement to provide immigration services by virtue of being regulated by the Bar Council, Law Society or Chartered Institute of Legal Executives:

…does not extend to the provision of such advice or services by the person other than in England and Wales (regardless of whether the persons to whom they are provided are in England and Wales or elsewhere).

This creates a headache for a UK-wide tribunal — particularly in the age of remote working. As paragraph 41 of the Akhtar judgment puts it:

…the Immigration and Asylum Chambers of both the First-tier Tribunal and the Upper Tribunal operate throughout the United Kingdom and at any particular time a judge of either tribunal might be in any part of the United Kingdom, and working there.

In this case, the appellant, her solicitors and her barrister were all based in England. But the judge, it emerged shortly before the remote hearing, was in Scotland. The barrister “sought an adjournment on the ground that in the circumstances he might be committing a criminal offence by making his submissions”.

The solution

The Upper Tribunal first noted that the general prohibition on providing unauthorised immigration services does not apply to an adviser outside the UK. “A person in the United Kingdom who gives immigration advice to a person in China is the subject of regulation under [the 1999 Act]; a person in China who gives immigration advice to a person in the United Kingdom is not regulated.”

By the same token, when it comes to lawyers only qualified in England and Wales,

It is, again, the geographical location of the person providing the immigration advice or services that counts… That means that an English barrister in England may provide immigration advice to a client in Scotland by writing, by telephone or by video link, and may make representations before the Tribunal on behalf of the Scottish client in writing or by “electronic means”. The barrister’s authorisation by the Bar Council does not, however, qualify the barrister to provide immigration advice or services outside England and Wales. If the barrister went to Scotland and made representations before the Tribunal in Scotland there would be a breach of s 84(1) unless the barrister had some further effective route to being a “qualified person” in Scotland.

The Upper Tribunal wasn’t particularly pleased that it was left to work this out without any help from the Home Office – which has “ultimate statutory responsibility for the Immigration Services Commissioner and hence for the regulatory system as a whole” – but chose to make no submissions. The tribunal was, fortunately, assisted by the appellant’s barrister, Michael Biggs, who the judges commended for his pro bono research.

As the quote above makes clear, while written and remote representation is permitted, in-person representation outside of England and Wales continues to be prohibited. Nor will having a representative from England and Wales be enough to get a remote hearing in a Scottish or Northern Irish case once in-person hearings go back to being the norm (see paragraph 44). So the differential treatment continues.

The justification for differential treatment

As Colin highlighted ten years ago: there doesn’t appear to be any justification. The President and Vice President of the Upper Tribunal certainly couldn’t find one:

It is not easy to see any logical reason for the restriction: the qualification (and the resultant exemption from the need to seek registration with the Commissioner) appears to derive from the general expertise recognised by the regulator, rather than from the exact territorial reach of the regulator’s regulation. That remains the position in relation to those regulated from Scotland and Northern Ireland, and was not seen as a problem in England and Wales before 2007.

Later in the decision, the tribunal drew attention to the absurd consequences of this anomaly:

It is distinctly surprising that one way in which [an English barrister] could secure qualification to appear in Scotland would be by obtaining call to the Bar of Northern Ireland (and vice-versa).

In my view there could be an argument for restricting immigration representation in the different legal jurisdictions of the UK to lawyers qualified in that jurisdiction. The tribunal emphasised that immigration law is the same throughout the UK and that there is no Scottish immigration tribunal. That is true. But there are differences. The criminal law is different, which can affect deportation cases. The onward appeal processes are different. Family law and regulation of social workers – which are relevant to immigration cases involving contact with children – are different.

I don’t know if that’s really enough to justify some kind of locals-only rule. But what certainly can’t be justified is Scottish and Northern Irish lawyers being free to represent clients in England and Wales, whilst English and Welsh lawyers are prohibited from representing a client in Scotland or Northern Ireland.

To use the tactfully mild language of the Vice President, the unbalanced restriction “ought to be reconsidered”.