The Office of the Immigration Services Commissioner (OISC), which regulates immigration advisers who are not practicing solicitors, barristers or Chartered Legal Executives, is consulting on a new code of standards. The OISC was brought into being by the Immigration and Asylum Act 1999 at the same time that a new criminal offence of providing unregulated immigration advice was created. Basically, if you aren’t a solicitor, barrister or CILEX and you are giving immigration advice, you need to be registered with the OISC or you are committing a criminal offence. There are several convictions every year and the maximum sentence is two years.
The presentation and styling of the proposed new code certainly looks like a significant improvement on the old one. The old one reads like a fairly random shopping list of sometimes very precise instructions on what to do. For example, paragraph 30 of the old code of conduct says
An adviser on receiving notification of the outcome of a client’s case must within three working days notify the client in writing accordingly.
The next paragraph is even worse, combining a vague duty with a specific timeframe.
The new approach is to set out a limited number of key Principles with some illustrative and non-exhaustive examples of what they might mean in practice, called Codes. The OISC explains in the consultation paper that
The Codes listed under each Principle are not exhaustive and an adviser may breach a Principle without breaching any of the listed Codes if they live up to the letter of the Codes, but not the spirit of that Principle.
Advisors must adhere to the Principles and the Codes “at all times”.
This approach is very flexible from a regulator’s perspective. It allows for some judgment to be exercised. This creates uncertainty for advisers. But there is perhaps a positive role for uncertainty in this context if the regulatory principles are well-designed. It is similar to the approach adopted in the barrister or solicitor codes of conduct.
How well-designed do the OISC’s proposed principles look?
Starting with the positive, when it comes to the need to keep a client informed of what is happening in their case, Principle 5 is “Act competently and respect confidentiality”, which includes paragraph 5.1: “Provide prompt, clear and competent advice to your clients.”
That’s certainly a lot less specific than the old code. The precise boundary of what is “prompt” and what is not is inevitably very blurry. But it’s much more sensible as an approach to regulation than setting out specific timeframes.
To my mind, though, the choice of the content and order of some of the other Principles seems pretty alarming. Strikingly, Principle 1 is “Uphold the law”. It goes on:
1.1 Act in accordance with UK Law.
1.2 Not knowingly or recklessly allow clients, the Commissioner, the Home Office, the courts, and tribunals and/or third-party agencies to be misled.
1.3 Not abuse any judicial and/or immigration process.
Barristers are required by their code to, for example, “observe your duty to the court in the administration of justice” and “act with honesty, and with integrity”. Solicitors are told they must maintain trust and act fairly and “not mislead or attempt to mislead your clients, the court or others.”
Why should an immigration adviser be tasked with something so general as upholding “the law” in general at all times in all that they do in their lives? What does “uphold” really mean? This seems to go far beyond what is expected of ordinary citizens and far beyond the proper remit of the OISC.
Say you are an OISC adviser. You are going walking down the road and Burglar Bill runs out of a shop with a bag marked “SWAG” over his shoulder. Do you have to bring him down in order to discharge your duty to the OISC to Uphold The Law (I cannot resist capitalising, I’m sorry)? If you don’t you could be acting in breach of Principle 1. You may not be breaching the letter of Codes 1.1 to 1.3 but the OISC will consider whether you have broken the spirit of the Principle. You could be disciplined and stripped of your regulated immigration adviser status if they take the view that “uphold” imposes a proactive duty of some kind.
Well, I’m sure they wouldn’t in this example, in real life. But they could. And given we live in an era when regulators get summoned by the Home Secretary to explain what they are doing to crack down on immigration lawyers, it’s not impossible to imagine a certain amount of politicised mission creep. Even including this amorphous requirement, which goes far beyond the sphere of regulating immigration advice, looks a bit political.
And what does “knowingly or recklessly allow … to be misled” really mean in this context? How does this square with the normal duty of confidentiality? And to whom does that apply? OISC advisers must police the behaviour of non-clients now?
We’ve already seen that Principle 5 requires advisers to “Act competently and respect confidentiality”. Code 5.5 reads:
Maintain confidentiality in respect of your client’s affairs except where to do so would conflict with the law or the Code or where your client explicitly authorises you to disclose confidential information (emphasis added)
Does this really mean that OISC advisers will no longer be under the same duty of confidentiality that solicitors and barristers are? It looks like a far broader duty to report deception. Barristers, for example, must not themselves recklessly mislead but their code doesn’t require them to police the behaviour of others in the same way; it merely requires them to withdraw from a case. It looks like if an OISC adviser becomes aware that any person in space or time is acting deceptively towards the specifically cited authorities then the OISC adviser must report that to the relevant authority.
Say you are an OISC adviser. You are sitting on your sofa watching TV. Someone is talking to the Home Secretary. The person says something you know or believe to be untrue. It might be that there are safe and legal routes for refugees from anywhere but Ukraine, for example. It might be about the numbers of police officers who have been recruited. It might be about the colour of the sky on a sunny day. Do you have to report that to avoid being in breach of your OISC duties?
Or, more realistically, you are sitting at the back of court watching someone else’s case. A witness tells what you firmly believe to be a lie to an official or a judge. Are you being reckless if you fail to report that and therefore “allow” them to be misled?
The problem is that Principle 1 itself and even Codes 1.1 and 1.2 are not “overarching standards that seek to deliver positive outcomes for advice seekers” (emphasis added) as the OISC claims in the consultation paper. They are far, far broader than that.
The proposed new OISC code goes on at Principle 4 to mandate advisors to “Behave with honesty and integrity” and the examples explain what this means in practice. Which begs the question of why Principle 1 is really needed at all.
If I were being dramatic, I’d say that this new code, if adopted, marks the end of the treatment of OISC advisers by their regulator as being equivalent to solicitors and barristers. Perhaps this is right, given that — as far as I understand it — legal professional privilege does not apply to OISC advisers.
Then there is the sequencing. The first three proposed Principles are (1) to Uphold The Law, (2) to act in accordance with the OISC regulatory scheme and (3) to “ensure public trust and confidence in the OISC regulatory scheme and do not bring the OISC into disrepute”. Issues like honesty, competence and acting in the best interests of the client are relegated to Principle 4 and beyond.
It’s not a good look for a code of conduct that is supposed to be about protecting the best interests of those clients served, in my view. Neither the barrister nor solicitor codes start this way. They put the most important stuff first, broadly speaking. So, perhaps, does the OISC; it’s just that the OISC thinks that not bringing the OISC into disrepute, for example, is more important than acting with honesty and integrity or in the best interests of the client.
I’m not going to go through the whole new code in the same vein. I’m not personally regulated by the OISC and it’s a bit too time consuming as an abstract exercise. We will of course update our OISC regulatory and exams handbook, training materials and training course with the details of the new code, when it is finalised.
If you are regulated by the OISC, though, it would be a very good idea to take a careful look at the proposed new code and think about how it affects you, your work and your clients. If you work directly with migrants then you might well want to think about whether the new code increases or decreases the risk of bad quality advice being given. The consultation closes on 23 October 2023.
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