The Solicitors Regulation Authority (SRA) published the Immigration and Asylum Thematic Review and new Immigration work – Guidance on 23 November 2022.

The review acknowledges that users of immigration and asylum services can be vulnerable and the consequences of poor advice can be particularly severe and difficult to rectify. Three main areas were addressed in the report: the quality of services provided, supervision, and complaints and reports of misconduct.

The thematic review was based on data provided by 70 firms of varying sizes. Of these, 40 were selected for more detailed questioning either because the initial responses gave cause for concern or because it was believed that they could provide interesting insights. According to the SRA’s press release, ten firms have been referred to the SRA’s internal disciplinary process. Although some of the findings of the review may be illuminating, the fact that it is such a small sample may reflect a far wider problem. Equally, the problems identified could also be disproportionately reflected in that small sample.

 The key findings were:

• Most clients were given the opportunity to review and amend key documentation, though not all files recorded this.
• Most firms had a good understanding of what makes a client vulnerable, though few firms recorded this on file.
• The strengths and weaknesses of a case are not always recorded on file.
• Firms could do more to make sure clients understand the strengths and weaknesses of the case and the options open to them.

The report also identified the need for stronger evidence of supervision taking place within firms. Concerns were highlighted over the potential for superficial supervision. They found that heads of departments often had too high a caseload which could impact their ability to effectively supervise others. A solicitor supervising immigration work should have some knowledge of each matter being progressed by the supervisee and should monitor a meaningful sample of that person’s work. Where work is identified as high risk, “such as asylum, a supervisor might need to have some awareness of every file”.

Those practising under a legal aid contract will be aware of supervisory requirements, but this guidance appears to impose a more onerous requirement. That said, the only case study example provided is in respect of the absence of supervision for an individual providing advice outside a contract of employment and where the justification for the absence of close supervision was the supposed competence of the person being supervised. A separate guidance note on supervision has also been published by the SRA.

A significant number of fee earners did not keep up-to-date training records as a way of demonstrating how they are meeting the solicitor competence requirements. And on record keeping in general, there were concerns about the scope of file audits, including the sharing of outcomes and recording audits.

The report is a reminder that fee earners should record the strengths and merits of the claim. And they should regularly reassess this as the case progresses to ensure that they are satisfied that the client still has a prospect of success.

Of potentially more sinister concern was the suggestion raised by the legal ombudsman that some fee earners may be taking advantage of consumers by accepting cash payments outside the office without providing a receipt. The review found that any cash payments were only being made within an office. And only one firm was reported to the disciplinary process for not being able to demonstrate that it had appropriately recorded the receipt of cash payments from a client.

The SRA found that most firms complied with the requirements to provide complaints information. But firms were reluctant to report misconduct, and most did not know how to.

The report takes a robust approach to the duty to refer concerns to the SRA so that they can explore whether serious breaches have occurred, even though the client may not wish to raise a complaint: “the duty to report serious misconduct is clear and is not subject to client consent or the duty of confidentiality”. Examples include where the availability of legal aid was never discussed, an individual had received poor legal advice, an application was incomplete and submitted out of time, or where there was a failure to engage the client in major decisions in the case.

The guidance addresses issues about the regulatory arrangement between the Office of the Immigration Services Commissioner (OISC) and SRA. It suggests that if there is a conflict between the OISC and SRA regulatory arrangements, then those of the OISC would prevail.

There is little within the guidance that is surprising, other than the suggestion that a lawyer “should not charge fees to make applications that have no realistic prospect of success”. Given the reference to the duty to ensure that clients are kept fully abreast of their opportunity to complain, one wonders whether the unhappy client who does not succeed (or any new adviser) may query the extent to which a particular application could be said to have no realistic prospect of success rather than merely being a weak application. No definition is provided as to what would constitute an application with no realistic prospect of success.

The SRA has committed to a further thematic review in 12 to 18 months to assess the impact of the guidance and any other steps that should be taken to promote good practice.