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Introduction: Statutory regulation, competence and accreditation The provision of immigration advice in the UK is subject to statutory regulation. Section 84 (1) of the Immigration and Asylum Act 1999 (IAA 1999) provides that: No person may provide immigration advice or immigration services unless he is a qualified person. Immigration advice and immigration services are defined within Section 82(1) of the IAA 1999: immigration advice” means advice which— (a)relates to a particular individual; (b)is given in connection with one or more relevant matters; (c)is given by a person who knows that he is giving it in relation to a particular individual and in connection with one or more relevant matters; and (d)is not given in connection with representing an individual before a court in criminal proceedings or matters ancillary to criminal proceedings; “immigration services” means the making of representations on behalf of a particular individual— (a)in civil proceedings before a court, tribunal or adjudicator in the United Kingdom, or (b)in correspondence with a Minister of the Crown or government department, In essence, a ‘qualified person’ must either be registered with and regulated by the Office of the Immigration Services Commissioner (OISC), or must be a member, or working under the supervision of a member, of one of the designated qualifying regulators or designated professional bodies listed in Section 86(1) of the IAA 1999: • General Council of the Bar • Law Society of England and Wales (including solicitors regulated by the Solicitors Regulation Authority) • Chartered Institute of Legal Executives • Faculty of Advocates • Law Society of Scotland • General Council of the Bar of Northern Ireland • Law Society of Northern Ireland Solicitors in England and Wales and OISC regulation Where a solicitor holds a current practising certificate and is working in a traditional law firm, an SRA regulated Alternative Business Structure (ABS) or an authorised non-SRA firm (meaning firms that are 5 authorised by another approved regulator under the Legal Services Act 2007) neither the organisation, nor the individual solicitor or any non-solicitor advisers who are supervised by the solicitor (whether or not under a contract of employment), need apply to the OISC for regulation. Solicitors who provide immigration advice and/or services only in an ‘in house’ capacity within an organisation, providing no immigration advice and services to the public, do not need to be regulated by the OISC. If the organisation also provides no immigration advice and/or services to the public, it also does not need to seek regulation from the OISC as an organisation. However, some solicitors or organisations that employ solicitors, do require OISC regulation. Law centres and other non-commercial advice services will require regulation by the OISC where they provide immigration advice and/or services to the public and are not regulated as an ABS. Individual solicitors in England and Wales who hold a practising certificate and work in a Law Centre or other non-commercial advice service, will be regulated by the SRA. Any non-solicitor advisers within the organisation will however need to seek OISC authorisation and the organisation will need to seek OISC regulation. This is a very complex area of regulation and further detail is provided by OISC in its guidance on ‘OISC regulation and solicitors’ at: https://www.gov.uk/government/publications/oisc-regulation-and-solicitors Barristers in England and Wales and OISC regulation For most self-employed barristers, the position is straightforward. Where a self-employed barrister holds a current practising certificate and is working in a set of chambers, or as a sole practitioner, the barrister is regulated by the BSB. In this case, neither the barrister nor any person they supervise needs to apply to the OISC for regulation. However, some employed barristers who work in a non-authorised entity may need to be regulated by OISC. Further detail is provided in ‘The OISC and barristers’ which is an agreed note issued by the Bar Standards Board and the OISC: https://www.gov.uk/government/publications/oisc-regulation- and-barristers Solicitors, barristers and advocates in Scotland and Northern Ireland Organisations which employ solicitors, barristers or advocates practicing in Scotland and Northern Ireland should check with the respective Law Societies for confirmation whether the legal professional is directly regulated by the relevant designated professional body to provide immigration advice and/or services to the public. Other qualified persons and ministerial exemptions Section 84(2)(c) of the IAA 1999 originally defined qualified persons to include those who were authorised to practice in the UK by an equivalent designated professional body based in another European Economic Area state; but on 31 December 2020, at the end of the transition period, Section 84(2)(c) was omitted by virtue of the Immigration, Nationality and Asylum (EU Exit) Regulations 2019. 6 The Immigration Act 2014 removed OISC’s power to exempt voluntary and community organisations from regulation. Organisations which had been exempt because they did not charge for their services were moved by OISC onto an annual continued registration cycle, but not charged for registering. Limited ministerial exemptions also exist for staff within licensed sponsors to advise on matters arising in the context of the Points Based Immigration System, without being OISC-regulated. Criminal offences A person who provides immigration advice or services without being a qualified person as defined in section 84 of the IAA 1999 is committing a criminal offence as provided for under section 91: 91 Offences. (1)A person who provides immigration advice or immigration services in contravention of section 84 or of a restraining order is guilty of an offence and liable— (a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or (b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both. It should be noted that s82(2) makes clear that statutory regulation refers to the provision of immigration advice and services by a person: (a)in the United Kingdom (regardless of whether the persons to whom they are provided are in the United Kingdom or elsewhere); and (b)in the course of a business carried on (whether or not for profit) by him or by another person. The OISC is highly proactive in seeking prosecutions of those who provide immigration advice and services when not legally entitled to do so. The OISC website regularly reports on prosecutions. Convictions for providing unregulated immigration advice typically carry custodial sentences, sometimes but not always suspended, as well as fines and other non-custodial orders. Prosecutions are undertaken of those who are not solicitors or barristers and have failed to become OISC-regulated. Many cases involve incompetence and financial exploitation of vulnerable people. In April 2019 following multiple complaints from clients and investigation by OISC, the company officers of the firm DDR Legal were successfully prosecuted on the basis that the key individual in the firm was not qualified as an EU registered lawyer and therefore the firm and its franchises were providing immigration advice and services contrary to s91 IAA 1999. DDR Legal had confidently advertised their legal structure as being fully compliant with UK law. That turns out not to have been correct. However, prosecutions are also undertaken of those whose OISC regulation has been suspended as part of disciplinary proceedings but who, nonetheless, continue to practice; and of those whose advice is competent but who have simply failed to become regulated by OISC. For example, in January 2015 OISC reported that a Moldovan accountant was fined £2000 and ordered to pay £2430 costs for submitting work permit applications to the Home Office. She was convicted despite not having profited financially, nor had she prejudiced the lives of the applicants.