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.