What can you do as a Level 1 Immigration Advice Authority adviser?

So, you’re training to become an Immigration Advice Authority (“IAA”, formerly “OISC”) adviser. But what can you actually do once you’re accredited? In most cases, it’s straightforward. But not always. Even fully fledged advisers will encounter situations where they have to have a serious think about whether they can provide advice or prepare an application as the issue might fall outside the scope of what they’re allowed to do at the level they’re qualified at.

There is no exhaustive list setting out exactly which applications you can and cannot work on. Instead there’s a mishmash of guidance, practice notes and clarifications from the IAA. We get a lot of questions from trainees during our IAA workshops on what you can do as a Level 1 adviser.

In this blog post, we’ve collated resources and hope to provide some answers. It would be impossible to discuss every single case you might face, but we’ve done our best to cover the most common scenarios we’re asked about.

If you’re ever unsure, the ultimate authority is the IAA so it’s best to contact them (info@immigrationadviceauthority.gov.uk).

Basic applications within the immigration rules

If you are accredited in the Level 1 Immigration category, you can advise on and assist clients with basic applications under the immigration rules. This means you can work on applications including visitor visas, spouse/partner/fiancé(e) visas, work and study visas, etc. But there are limits.

The application must rely on a straightforward presentation of facts to meet a set of qualifying criteria

This means that the information provided in the application form and the accompanying evidence alone should be enough to demonstrate that the requirements associated with the application are met. You shouldn’t need to present additional representations or legal argument. The Guidance on Competence provides some examples of applications that would involve detailed representations and would not be appropriate for a Level 1 adviser to work on, which includes those:

• made under the 20 years residence route
• based on family or private life where the applicant would be put on a 10 year route to settlement if successful
• for settlement on the grounds the applicant is a victim of domestic abuse
• for leave outside the rules
• which raise human rights grounds, such as Articles 8 or 3

The application is not discretionary or concessionary

As above, the application must fit within the rules and it must not rely on the decision-maker’s discretion.

Your client does not have an immigration history that is likely to negatively impact the outcome of the application

For example: you receive an enquiry from someone who wants to apply for a visitor visa. They have been in the UK once previously, and overstayed the length of their visa by 12 months. Even with an excellent collection of evidence showing this person is a genuine visitor, this period of overstaying is going to make the decision-maker seriously question whether they are going to leave the UK at the end of their visit this time. A Level 1 adviser shouldn’t take on this case. This period of overstaying is going to require some explaining by way of additional representations, evidence and potentially some legal argument.

This serves as a reminder that you need to take detailed instructions from your client from the outset to uncover anything that may impact their ability to meet the requirements, and thus your ability to assist them. It’s often useful to secure subject access request records before providing any substantive advice.

Where your client is making an application for permission to continue living in the UK, they must have ‘extant’ leave

This means they have valid, existing permission to remain in the UK that is still in effect and they are not an overstayer. There are a couple of exceptions to this:

1. You can make an out-of-time application if submitted within 14 days after your client’s leave has expired, provided there is a valid reason for the delay that was outside both yours and your client’s control, as set out in paragraph 39E of the rules.
2. In (very limited!) circumstances you can make a ‘late application’ to the EU Settlement Scheme – more on this below.

Nationality and citizenship

If you are accredited in the Level 1 Immigration category, you can also assist with basic nationality and citizenship applications. This includes naturalisation applications, registration applications for children and requests for confirmation of British nationality status. As above, the application must rely on a straightforward presentation of facts and must not be discretionary. This rules out working on certain applications such as registering a child as British under section 3(1) of the BNA 1981, because registration in this scenario is at the Home Office’s discretion.

Where a nationality application is refused, the remedy is a reconsideration request using form NR. As a Level 1 adviser, you can apply for a reconsideration if the decision-maker has overlooked certain information or evidence or where the decision has been made prematurely. But you cannot submit the request if you believe that the decision is incorrect according to the law.

EU Settlement Scheme

In November 2023, the IAA (or OISC as it was then) published a guidance document for immigration advisers providing advice in relation to the EU Settlement Scheme. It sets out what work can be done at each level. Level 1 advisers are allowed to help clients make applications for settled status where they already have pre-settled status, and applications for joining family members where the applications are straightforward (see interpretation of ‘straightforward’ above). In the case of the latter, the application must be based on a relationship that existed by 31 December 2020 and continues to exist at the date of the application.

Late applications is where it gets trickier. The guidance says that Level 1 advisers can assist with late applications for clients who are eligible for for status and who are “likely to be classified as meeting the reasonable grounds threshold based on a straightforward presentation of the facts and supporting evidence”. There are going to be very few scenarios in practice that are likely to succeed on a straightforward presentation of facts now that we are years past the EUSS deadline.

The guidance gives some examples of the types of people who might be applying late, where supporting evidence should be easy enough to get and detailed representations are probably not required. They include where the applicant was a child at the relevant application deadline, the applicant was exempt from immigration control but has since ceased to be exempt, or the applicant lacked mental or physical capacity at the relevant deadline and has lacked capacity since (see the guidance for the full list).

Nevertheless, the IAA says it’s not appropriate for a Level 1 adviser to make a late application for a client “solely based on lack of awareness of the EUSS, of the relevant deadline or of their eligibility to apply”. So watch out for that.

Asylum

If you are accredited in the Level 1 Asylum & Protection category, the work you can do is very limited. You can inform the Home Office if your client changes their address, you can apply to vary the conditions attached to leave or bail your client already has (such as requesting a right to work) and you can make straightforward applications for leave in line or refugee status in line for any children born in the UK to refugees or people with humanitarian protection.

You cannot do any substantive asylum work – i.e. you cannot advise on or prepare and lodge someone’s asylum claim. You cannot make any related applications either, such as applying for refugee family reunion or a settlement application when someone with protection status becomes eligible.

Administrative review

Administrative review (AR) is an internal review process by the Home Office and is available to challenge refusals of certain applications where there is no right of appeal. A Level 1 immigration adviser can assist with an AR request so long as it relates to the type of application that you are permitted to work on at Level 1. AR is only available for certain applications (see AR 1.1 of Appendix Administrative Review). You can’t, for example, request an AR of a refusal of a spouse visa just because you can’t appeal the decision as a Level 1 adviser.

The ground for challenge is that the decision was wrong due to a case working error. Level 1 advisers can’t request an AR where the credibility of the applicant is the reason for the refusal, or the decision-maker takes issue with the genuineness of documents or a relationship.

Let’s say your client has their Skilled Worker visa application refused. The decision letter states that your client has not met the English language requirement, despite you having submitted evidence they meet the requirement in accordance with Appendix English Language. You can challenge this decision by way of AR. You could not challenge the decision if the decision-maker had refused the application on the ground that they believed the English language certificate to be fake.

Varying conditions of leave

Where someone has been granted leave to remain on the family or private life route (or one of the other specified routes) and subsequently finds themselves in difficult financial circumstances, they may be able to apply for permission to access to public funds. As a Level 1 adviser you can assist with this application. Similarly, you can assist someone in making an application to access public funds under the Victims of Domestic Violence Concession.

Advising someone on services available to them such as welfare benefits or helping them to access a service once they have immigration permission to do so, doesn’t require regulation at all.

Level 1 advisers can request bail conditions are varied if bail was set by the Home Office (as opposed to bail being set by the Tribunal). This could be where your client wants to reduce the frequency in which they are required to report and can demonstrate a history of reporting compliance, or they want to change the address that their bail conditions state they must reside at. There is no set form to complete; you’d write to the address on the bail form or to the reporting centre.

You can also request permission to work for asylum seekers by completing form PTW1. The asylum claim must have been outstanding for more than 12 months, not through any fault of your client. If permission is granted your client is limited to applying for employment in roles on the Immigration Salary List only.

Fee waiver applications

A fee waiver application can be made to the Home Office when someone cannot afford to pay the application fee and/or Immigration Health Surcharge associated with an immigration application. They are only available to people on certain immigration routes and eligibility requirements must be met.

Unlike in the above situations where you are varying the conditions of someone’s immigration status, the outcome of a fee waiver application does not affect immigration status. As such, supporting someone to make this application is not considered as advice or assistance that requires regulation under the 1999 Act and anybody – including IAA Level 1 advisers of course – can assist with making one.

This is confirmed in the Clarification of Immigration Advice Authority’s jurisdiction guidance note.

What to do when you cannot provide advice or assistance

When faced with an enquiry or situation that falls outside the scope of work you’re allowed to do at Level 1, you’ll need to signpost or refer the person to a higher level adviser or solicitor. If you work within an organisation that has advisers working at the higher level and they have capacity and the expertise to take on the case, you can refer them internally.

If there is no one within the organisation that can assist with the case, you’ll need to find a suitably qualified legal representative outside of your organisation. You can signpost the enquirer, or refer the existing client, to a law firm or organisation that you know and trust. If you can’t provide a recommendation, you can signpost the person to general search facilities, such as the IAA adviser finder or Law Society Find a Solicitor service.

For an existing client, you must inform them in writing and set out your reasons for making the referral. All of this should be done at the earliest opportunity – particularly if you are unable to connect the person with another firm/organisation directly and if there is an impending deadline such a time limit to lodge notice of an appeal.