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Immigration regulator to give up on day job


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Suzanne McCarthy, the current Immigration Services Commissioner

The Office of the Immigration Services Commissioner (OISC) is currently consulting on the regulation of immigration advisers. Or, more accurately, the de-regulation of immigration advisers.

It is illegal to give immigration advice in the UK unless the adviser is a member of an exempted profession (mainly solicitors and barristers) or is registered with the OISC at one of three levels. Level 1 does not involve giving advice as such, merely pointing an immigrant in the right direction or filling in simple forms. There is a test to pass to register at Level 1: an online multiple choice test done in the security and privacy of your own home. Meaning, of course, that anyone can take the test for you or even if you do it yourself you can look up the answers at your leisure. Level 2 allows the adviser to actualy give advice. Level 3 enables the adviser to carry out advocacy in the immigration tribunal.

It is all a bit more complicated than this, in fact, but life is too short to go into it further. The scheme is certainly not a simple one, and the OISC has struggled for the last decade to get the public, community groups, advisers and immigrants to understand it all. Now, the OISC is proposing to tear it all up, confuse the hell out of everyone again, merge levels 1 and 2 and allow current level 3 advisers to undertake judicial review applications in the new unified tribunal. As far as I can see from the consultation paper, there will be virtually no bar to anyone giving full-on immigration advice other than the at-home multiple choice ‘test’ and there will be no bar to OISC advisers undertaking judicial review work other than a simple advocacy test.

Now, I was an OISC adviser for years. There’s certainly nothing wrong with OISC advisers. I’ve seen terrible, terrible work by immigration solicitors and excellent work by OISC advisers. But the idea that an OISC adviser would be adequately equipped to do JRs after an advocacy test by the OISC is ridiculous. And the idea that the OISC is basically giving up on preventing the ignorant from giving immigration advice is very dangerous. It will reverse the admittedly limited progress the OISC has made into closing down dodgy immigration agents and consultants.

If the OISC was serious about regulation they would concentrate on improving their screening and application process, their visits, enforcement action and audits and basically get on with it. This looks like a classic governmental response: failing to do the job properly despite having perfectly good powers in place, blaming the legal framework and fiddling repeatedly with the rules to move the goalposts. We see it often enough in immigration law already, thank you very much. The proposals will do nothing to prevent or close down bad advisers. Instead this will distract the OISC and the regulated advice sector for a couple of years while simultaneously making it easier to give incompetent advice.

If you are concerned about the regulation of immigration advisers and the quality of advice given to immigrants, you may wish to respond to the consultation.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


13 Responses

  1. “….. the idea that an OISC adviser would be adequately equipped to do JRs after an advocacy test by the OISC is ridiculous.”

    I am one affected by this and find myself arguing from both sides.

    Do you know what the HOPOs are going to do? They too do not have JR experience in the sense proposed.

    1. That’s an interesting question. We don’t know. Many reps would probably rather keep Treasury Solicitors involved if only because (with no disrespect to HOPOs intended) they have better lines of communication to the powers that be within the Home Office and are usually quite willing to concede where the Claimant has a good case.

    2. “….would probably rather keep Treasury Solicitors involved…..they have better lines of communication to the powers that be within the Home Office….”

      Glad to hear that costs aren’t a factor.

  2. “… the idea that an OISC adviser would be adequately equipped to do JRs after an advocacy test by the OISC is ridiculous.”

    I work for a company that has 5 solicitors, or should I say, 5 OISC advisors registered at level 3, but who all hold practising certificates. All are incredible lawyers, and are regulated by the OISC rather than the SRA by choice, for administrative reasons.

    The statement above suggesting that they are not equipped to do JRs simply because they are regulated by the OISC is quite frankly ludicrous.

    1. Your colleagues sound quite unusual, I think you’ll agree. As I understand it, though, if they hold practising certificates then they are regulated by the SRA. There are substantial differences between the regulatory schemes, though, it is true. OISC advisers are far more lightly regulated. For example, there is no real ethical code, there is no ethical ‘hotline’ and it is only very recently that there was any continuing training requirement. There is no obvious way for OISC advisers to get trained up to new levels and there is no apprenticeship element to it, which is how really good solicitors become really good. In contrast, it really doesn’t take a lot to get OISC regulated. That does not mean there are not some very good OISC advisers, though, as I made very clear in the post.

    2. Someone holding a practicing certificate, who works for a company that is not registered as a law firm with the SRA, but is registered with the OISC isn’t generally regulated by the SRA. (Call the SRA, and then the OISC and try to get straight answers on this, impossible!) Yet we have been running under this arrangement for 4 years.) It is fairly common. You could imagine the difficulties in regulating the solicitor when the company/employer they work for is out of reach.

      Technically we say they are not “practising as solicitors” while working at an OISC company, and they cannot present themselves as “solicitors”, according to the SRA and the OISC, but they may call themselves lawyers. (In fact the OISC permits anyone who has completed their 1 hour level one test to call themsleves lawyers, solely based on that achievement.)

      This is not us, but an example of how people present it to the public to keep the SRA & OISC happy, paragraph 4 or 5:

      Although I don’t think the OISC would be happy with this:

      I agree with most of your reply, but only wish to point out that the simple fact that they are regulated by the OISC shouldn’t bar them from JRs.

    3. I agree that they shouldn’t be barred. I know several barristers and solicitors (non-practising) who work for organisations such as the IAS, and companies such as yours, who are perfectly able to do do this. However, can OISc guarantee the competence of advisors at a high enough level if they have no formal advocacy training or qualifications? This is where I am concerned. If it is only going to be a question of paying a fee and sitting an exam such as the current level 3 exams, it may mean that they are able to draw up the paperwork and write an adequate skeleton argument, but that doesn’t make them good enough to present JRs.

    4. Sorry, your comment got spammed because of the links you included and I don’t check the spam folder very often. I certainly did not mean not to publish your thoughtful comment.

      Thanks for the links, they make interesting reading. I’m interested to see solicitors practising under the auspices of the OISC, I did not realised that happened. The barrister probably is going a little far! On a related note, I was interested to read that the BSB is planning to introduce direct access in immigration law in the near future.

      Being able to call yourself a ‘lawyer’ after the OISC Level 1 multiple choice test is misleading, I agree. I’m not sure about OISC regulation and JR, though. It is difficult to imagine the OISC setting up an adequate screening process, to be honest.

    5. Of course there are competent solicitors under oisc due to SRA discrimination in solicitors insurance last year. I am a level 3 oisc at the same time qualified solicitor and i think i enjoy being under oisc that SRA. OISC publications are very helpful including their cpd courses- what do we have under SRA? Nothing.

  3. I am an OISC registered advisor, and I completely agree. The one thing that we get drummed into us is that we shouldn’t advice beyond our competence, and I can’t see how any OISC advisor who has not had specialist advocacy training, experience and, frankly, done a BVC and a pupilage, can possible represent at JR adequately. I know I couldn’t, and I wouldn’t take that risk with my clients.

    The proposals are troubling. Alongside the idea of letting us do JR work, there are proposals to make those of us who are level 3 and want to continue representing at the AIT but no higher take extra exams and (of course) pay a higher fee. For many, myself included, it’s sort of like making Alex Ferguson take his FA badges despite years as a successful manager…

    The OISC is flawed, but it is better now that there is some regulation. But I do think that money spent on this restructure could be spent on enforcement and prosecution of dodgy or unregulated advisors. Or improving the CPD.

  4. I am a OISC regulated adviser. Many advisers with OISC have Undergraduate and Postgraduate law qualification but unfortunately these are not properly recognised in OISC procedure. My opinion is that those have postgraduate Advocacy or law practice qualification they should be get exempt from some exams.

  5. I have been working as an OISC adviser for a number of years and I have seen people suffering because of incompetencies/carelessness of sometimes even expert immigration solicitors and level 3 advisers. I feel that if due care and attention is not given at all times; regardless of the simplicity or complexity of the application forms/cases then it may lead to applications being rejected/delayed etc.

    I personally feel that there is nothing wrong with merging Level 1 and Level 2; provided the fee levels for the initial registration and subsequent renewals is not increased. However there is no harm in having a slightly more comprehensive testing system once the two levels are merged.

  6. Thank you…now I have more incentive to become an immigration advisor. Having passed the Bar and unable to gain pupillage this is the best news I’ve had in a long time. It’s those like us who float into oblivion, because without a pupillage cannot practice, that appreciate hearing the news. When is the merge expected. Obviously we are BVC qualified therefore advocate experience, what a perfect solution :)