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OISC amends judicial review practice note to prevent advisers conducting litigation

The OISC (Office of the Immigration Services Commissioner) has again amended its guidance note on advisers conducting litigation in judicial review cases. The amendment appears to be with immediate effect, although the online version of the practice note had not actually been updated at the time I was writing this. [update: the new version was uploaded on 5 July 2023]

The change follows a non-immigration case called Baxter v Doble [2023] EWHC 486 (KB), which was a property dispute in which one of the parties was assisted by a CILEX adviser, not a qualified solicitor or barrister. It is a long judgment and the judge eventually asks himself, did the activities of the Respondents, taken in the round, amount to the conduct of litigation?

In my judgment, the answer is yes. The Respondents did everything for Mr Persey in relation to the proceedings that a solicitor or other authorised person would have done. They gave full-service assistance to Mr Persey, including drafting all of the documents required to comply with formal requirements, giving instructions to counsel, making a payment to court, corresponding with the other side, and ensuring that all procedural steps complied with the CPR. Someone must have conducted this litigation, and it would be wholly artificial to say that Mr Persey did it himself, albeit with support and guidance from the Respondents. This would be to under-state their involvement. They conducted the litigation for him. Put another way, they were “prosecuting” the proceedings for him. The Respondents’ role went far beyond clerical or mechanical assistance. As the Court of Appeal said in Ndole, it is a question of fact and degree whether an advisor or consultant crossed onto the wrong side of the line. On the facts of this case, and again applying the criminal standard, I conclude that the Respondents did cross the line and that their involvement in the proceedings, taken as a whole, amounted to the conduct of litigation.

The part of the practice note being withdrawn was only added by the OISC in January 2022. It used to read as follows:

Please note all of the following tasks must be done in consultation and agreement with Counsel:

  • Lodging certain types of documents for hearings e.g. the case summary, chronology, list of issues or position statement
  • Exchanging skeletons with the Home Office or sending skeletons and bundles of authorities to the Upper Tribunal
  • Advisers may correspond with the Home Office and Upper Tribunal on behalf of their client regarding hearing dates
  • Corresponding with the Home Office or the Upper Tribunal regarding any order settled or proposed by counsel

It was only ever specifically authorised OISC advisers who were permitted to engage in judicial review work at all; an additional certification is required from the OISC. A quick search of the OISC website suggests around 40 different adviser office locations authorised in this way.

The OISC state that the change comes following “discussions” with the Immigration and Asylum Chamber of the Upper Tribunal. The OISC will now consider any work undertaken on a case after proceedings have been issued at the Upper Tribunal as conducting litigation and therefore not authorised. After a judicial review claim form has been served, OISC advisers will only be permitted to liaise with the clients and counsel.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.