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Regulation of immigration advice and services
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The Legal Services Board has issued a consultation paper that proposes potentially major changes to the regulation of immigration advice and services. The deadline for responses is 24 May 2011.
The LSB is critical of the current regulatory regime, saying of their own investigation into the immigration market in 2011:
This work has led us to the conclusion that there is likely to be significant consumer detriment because the qualifying regulators are not regulating immigration advice and services in a way that is consistent with the requirements of the 2007 Act. In addition, the complex regulatory architecture that exists for immigration advice and services presents the additional risks of gaps and overlaps in regulation, differences in approach (for example, for intervention powers and accreditation schemes) that are not justified by evidence and an overall lack of data and information about the market as a whole.
The demise of RLC and IAS certainly highlighted deficiencies in the OISC scheme, as the wind-downs have been less than orderly.
The qualifying regulators in England and Wales are the Solicitors Regulation Authority, Bar Standards Board and ILEX. The LSB is particularly critical of the way in which the Legal Services Commission was effectively forced by the inaction of the Law Society to become a de facto regulator in publicly funded work, observing that this is an inappropriate role for the funding contractor.
The consultation seeks views on, amongst other things:
- Making immigration advice and services a reserved legal activity. As things stand, that would restrict immigration work to solicitors, barristers and ILEX members, perhaps effectively ending the era of the Office of the Immigration Services Commissioner (OISC). However, the consultation paper seems to suggest that the LSB is not proposing to exclude a class of advisers as such: “our aim would be to ensure continued consumer choice and access to justice through a wide range of properly regulated and controlled individuals and entities, rather than to exclude any category of provider from the market by moving to a system based on regulation of title.” This could mean making the OISC a qualifying regulator, for example.
- Forcing the Solicitors Regulation Authority and Bar Standards Board to “implement coherent, evidence-based approaches to manage risks to consumers and the public interest in the provision of immigration advice and services” by the end of 2012, probably meaning examinations or tests of some sort for all practitioners. The emphasis in the consultation paper does seem to be more on solicitors than barristers.
- Reforming or unifying the complaints mechanisms and giving a right of complaint to the Legal Ombudsman in all immigration cases.
As an aside, some interesting statistics emerge from the consultation on the numbers of immigration practitioners:
just over 3,000 solicitors say that they practise in immigration advice and services (2.8%) and 4% of barristers indicate they practise in this area, with 2% stating that this is their main area of practice
That makes about 300 barristers who mainly practice in immigration law. I’m surprised it is that many! The missing statistic here is solicitor caseworkers and paralegals, though. As far as I can see it is unspoken in the consultation paper, but I suspect the real regulatory risk here as far as the LSB is concerned is non solicitors working at solicitors offices.
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20 Responses
Does that mean this is probably the end of the road for OISC? I am worried because i am about to apply for accreditation. Thanks
I can’t imagine how the abolishing all OISC registered immigration advisers, who specialise in immigration advice and are constantly regulated will make the provision of immigration advice more consistent or of more value to clients who will then only be able to choose from solicitors who tend to cover many different areas of law and not only immigration which has led to unhelpful immigration advice in the past.
I take it you meant to type the deadline is 24 March 2012 not 24 March 2011
As a non-solicitor working in a solicitor’s office I would hope that we’re not all that bad. There are a number of solicitors (and non-solicitors) whom I could name, who are undermining the rule of law with some of their practices. Given how widespread abusive and fraudulent practice is in this sector amongst both qualified and non-qualified lawyers, I would definitely agree that the current regulatory regime is not working and I look forward to reading the LSB report.
I’m depressed!
In my own experience the worst offenders for appalling immigration advice have been private solicitors who never did immigration before, but decided they could make a few quid and jumped on the bandwagon a few years ago.
There is no obligation on them to take any kind of immigration training or exams so maybe the SRA that be targeted, not the OISC.
Absolutely agree. We visited the tribunal a while ago so we could better brief our students about what they could expect to happen when they make appeals.
The quality of representation was appallingly variable.
While we observed one brilliant solicitor, the others we observed seemed plainly disorganised. One gentleman we observed seemed to have a very loose grasp of the English language!
Some were obviously winging it and didn’t have the foggiest clue about the relevant rules and case law.
Trainees under solicitors, although not being supervised (at least enough), interpreters (supposedly under instructions from solicitors as an extended branch), secretaries of solicitors firms thinking they’re experienced enough… Heard it all from clients and spent countless hours trying to convince a disbelieving Border Agency of the problems clients had with these types of people. Over the years, I beg to wonder if my six year old daughter is not taking clients of her own (obviously with her own office). I do wonder sometimes though, how some migrants will agree to hand over (at times) thousands without leaving with a receipt or contract of work… C’est la Vie!
I very much agree with Amanda. It’s mainly unqualified immigration caseworkers who works for private solicitors firms, who are not regulated by the LSC nor by the OISC these are the people should be questioned. Having said that it is incorrect to generalise about solicitors or OISC regulated firms. At least the OISC concentrate in one area of law i.e.immigration as opposed to the SRA which covers all areas of law.
I agree with most of the comments in that there are advisors out there who do not have the experience or expertise to advise on immigration matters but I personally believe it is the client’s responsibility to seek advise from the right person. Our firm specialises in immigration and asylum, I’m a level 2 accredited senior casework solicitor and we come across clients who have taken advise from taxi drivers and shop keepers. I don’t think others should be responsible for some people’s stupidity.
@Iftakhar
Please clarify the statement ” I’am a level 2 accredited senior casework solicitor ”
I happen to know a number of taxi drivers who would provide better advice than certain immigration reps (not south of article 8 though, well not at this time of night).
PO, maybe you should see if your colleagues could recruit them as IOs, so we might get an improvement in the quality of decision making.
Too true!
Hi Amanda. You’re right about what you say. Most solicitors are just too busy ripping everyone off to ever “care” about another thing! Don’t be depressed though because all this stuff about having X or Y certificate is just a formality.
At the English bar there some characters who can’t even one paragraph in English, maybe they should have a bright line rule at the Bar Council/BSB as well?
The problem of regulating legal services!
In Sindh province (Pakistan) the bar council just doesn’t issue any certificates at all. It took me five years after doing the bar exams in England to get a certificate for the High Court out of them. There the rule is to make people wait until they lose interest in becoming lawyers – until they just die …
It’s a Sindhi and Pakistani thing!
Even if they close down OISC, you will still qualify for FILEX.
Many IO’s are thought to have been moonlighting as taxi drivers, so you wish has been granted!
On a more serious note, the gulf in terms of competence and effectivness of ‘immigration lawyers’ is vast (in the view of this humble hard working public servant).
It’s a shame that IAS and even more so RLC were so inept in terms of balancing their books and thus sunk beneath the waves, they did provide a consistenly high level of representation, the gap left by them has been filled by numerous sharks and charlatans.
PO
My twopenneth worth sent to
consultations@legalservicesboard.org.uk
Dear Sirs,
I am a level 3 OISC regulated advisor and have experience of immigration and asylum work within both privately and publicly funded SRA regulated solicitors firms. I agree that there are many client’s who receive extremely poor immigration advice and that as one of the most vulnerable sections of society, they should be protected from incompetent and dishonest immigration advisors.
From my experience, however I would say that the OISC are by far the most pro-active when it comes to regulating and policing the immigration advisors under their jurisdiction. The SRA are not equipped to regulate or police immigration advisors specifically as they are not a regulatory body as such and are more of a solicitor’s representative body. They have outsourced their immigration accreditation in relation to publicly funded immigration and asylum work to the LSC, who were never set up as a regulatory body, but instead as a body to oversee public funding.
I am extremely concerned that the SRA, in their attempts to protect the interest of their members, will push for immigration advice not offered by barristers or CILEX members, to be regulated solely by them, despite their complete lack of competence in this area.
The majority of examples that I have seen in relation to incompetent and dishonest immigration advice have been through privately funded solicitors practices. I have always advised my clients to make formal complaints to the SRA and latterly the Legal Ombudsman when the incompetent or dishonest advice given has caused a detriment to my client’s case. It is very difficult, however, to persuade someone who is not au fait with the legal complaints system in the UK to follow through the very long winded complaints procedure put in place by the Legal Ombudsman.
In comparison, the OISC complaints and fraud departments are very pro-active and will follow complaints and tip offs from clients and non-clients alike without expecting the complainant to follow through the various ‘filtering’ mechanisms that may result in complaints to the Legal Ombudsman being artificially lowered and allowing the continuation in practice of incompetent and dishonest solicitors.
The one criticism I would make of the OISC, would be that they are ill equipped to deal with the wind up of firms that close down and subsequent transfer of client’s files. This is an area that seems to need improvement.
It would appear that the SRA is the organisation that needs the most attention and increased regulation and I would suggest that all solicitors and non-solicitors offering immigration advice and services should be regulated by either the OISC in whatever amended form it would need to take or the LSC if publicly funded.
The OISC could become a qualifying regulator in relation to immigration and asylum services, as CILEX did last year. It would be a mistake to lose the expertise of the OISC in an attempt to simplify the framework of immigration advice and would do nothing to improve services in this area as the worst offenders are ‘regulated’ by the SRA already. It would also be a mistake to bring the OISC under the cumbersome Legal Ombudsman for complaints, as it is the specialist nature and fast, pro-active action of the OISC that make their complaints procedure better for immigration and asylum clients than that offered by the Legal Ombudsman currently.
Finally, it appears from your analysis that you may be looking at removing asylum work from the OISC remit as your infer that privately funded asylum clients must have been deceived in some way if they are not taking up the offer of legal aid and have a case with merit. We always refer asylum or low income clients to good legal aid firms or law centres, but the restriction in matter starts often makes it very difficult to obtain public funding in the timescales involved. Other clients who have been recommended to us by former clients often do not want to be referred, even when we explain how good the firms are that we refer to and the benefits of having their case taken by a firm who have a legal aid franchise re payments for expert reports etc.
If the purpose of your consultation is to improve the quality of immigration advice and make the choices clearer to clients, then you will not shut out the OISC as the only specialist regulator and you will clamp down on the private solicitors firms who give all immigration lawyers a bad name.
Regards
Well written… But I hope it does not go in the same way of the UKBA’s ‘consultations’. You know, the ones where they invite you for your opinion but for those whom work in the field, it seems to be little else but a technical ‘exercise of process’, where the outcome usually favours a certain Professor M et.al… etc etc.
If all else fails, it might be fun to learn ‘the knowledge’ and drive around London in a Hackney for a while… and maybe when one of PO’s senior colleagues take a ride one day, one of us might land a job for the other side (working with PO?!)…
You should be so lucky!
Hubris is terminal.
I doubt that the Office of the Immigration Services Commissioner (OISC) will be abolished but more clarity is obviously needed especially now that the ABS (Alternative Business Structures) companies are becoming the reality. The whole regulatory structure looks increasingly complex and difficult to follow so from that perspective more clarity would be welcome in my opinion.