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The Immigration and Asylum Accreditation Scheme A particular requirement arises for those solicitors’ firms (and bodies regulated by the OISC) in England and Wales who have a contract to provide publicly funded legal advice and representation in the ‘immigration and asylum’ category. The Legal Aid Agency (LAA - formerly the Legal Services Commission) requires any adviser working under a legal aid contract in immigration and asylum law to be accredited under the Law Society’s Immigration and Asylum Accreditation Scheme. The Immigration and Asylum Accreditation Scheme (IAAS) is the responsibility of the Law Society. The operation of the IAAS is explained in the Law Society’s Immigration and Asylum Accreditation – Senior Caseworker, Casework Assistant and Trainee casework assistant: Application form guidance notes, which are regularly updated. For relevant documents, see: https://www.lawsociety.org.uk/career-advice/individual-accreditations/immigration-and-asylum- law-accreditation The IAAS has traditionally had four different levels of membership: • Probationary • Level 1 (accredited) • Level 2 (senior) • Level 3 (advanced) The Law Society re-branded the Level 3 (advanced) qualification as the ‘Immigration Law Advanced Accreditation Scheme’. There is also an additional Supervisor membership available only for Level 2 or Immigration Law Advanced members. The Law Society also produces an extremely useful document which is regularly updated: Immigration and Asylum Accreditation: Candidate Guidance. This explains the examination format and content, and the syllabus. Previously the IAAS comprised three examinations at Levels 1 and 2: a ‘written’ exam which tested legal knowledge; a ‘drafting’ exam which tested drafting skills; and a mock client interview. Since 2016 these have been replaced with one written exam for which Advanced Materials are released approximately one week before the exam date. Unlike the OISC competence assessments, the accreditation exams are no longer ‘open book.’ Only one textbook is permitted in the exam, Margaret Phelan & James Gillespie Immigration Law Handbook. Other specified sources of law can also be taken in, as listed in the Candidate Guidance. Gross Professional Error The IAAS, just like the OISC scheme, includes both competency standards and a requirement to meet ‘fitness and propriety standards.’ These standards are met by passing the vetting checks carried out by the Law Society. However, the IAAS scheme also tests fitness and propriety within the assessment examinations by including questions which require the examinee to understand professional ethics STOP PRESS On 31 August 2020 Central Law Training (CLT) England ceased trading. The Law Society has decided to extend any Senior Caseworker accreditations which were due to expire. The exams are now being administered by the Law Society. 11 and criminal offences. Importantly, if a candidate gives an answer which is adjudged to constitute a ‘gross professional error’ this results in a mandatory failure of the exam. A gross professional error is defined as: ‘a serious departure from, or breach of, the standards of professional conduct and ethics.’ Even though the assessment examinations are now set and administered by the Law Society, not CLT, it should be noted that notification that a candidate has passed the IAAS assessment examinations does not in itself result in membership of the scheme. A paid application to the Law Society is required. The Law Society grants membership of the Scheme on condition that the competency standards have been demonstrated by the applicant passing the relevant examinations and the applicant has satisfied the fitness and propriety checks which are conducted by the Law Society. Only then will membership of the scheme be granted. Re-accreditation Membership of the Scheme lasts for three years at the end of which re-accreditation must be undertaken. Re-accreditation applies only to senior caseworkers since the other levels of the scheme have become temporary. To renew accreditation, an applicant needs to: • complete at least six hours of professional development in immigration and asylum law in each of the three years before they apply for re-accreditation • complete the mandatory online training and assessment through the Law Society Professional Development Centre • submit their re-accreditation application form Example scenarios and questions are included at the end of each eLearning module. The online course is divided into three modules, each lasting 1.5 hours. Following completion of the mandatory course, an applicant needs to complete an online assessment via the CPD Centre. A minimum of 60 per cent is required to pass each module. Scenarios and questions are in the same style as those used in the mandatory course. Applicants must complete online assessments themselves, without assistance from any person or device, and without any cheating, collusion or assistance by any other unfair means, on pain of accreditation status being revoked and a reference made to relevant regulatory and prosecution authorities. Applicants can re-sit the online assessment if they do not pass on the first attempt. If an applicant fails after the second attempt, they may request the opportunity to take a third or subsequent assessment. Permission will only be granted in exceptional circumstances which include, but are not limited to, long-term illness or bereavement. If the applicant does not pass the re-sit(s), the application for re- accreditation will not be successful and membership of the IAAS will be terminated. To regain membership, an applicant will need to complete the initial accreditation process. https://www.lawsociety.org.uk/career-advice/individual-accreditations/immigration-and-asylum- law-accreditation/re-accreditation The Law Society has published the Immigration and Asylum Handbook - A Guide to Publicly Funded Legal Work under the Immigration and Asylum Accreditation Scheme (ed. Mark Symes) 2016. It provides practical guidance for all professionals working in immigration and asylum law. Like all printed sources, care must be taken as some of the law and practice contained will have become out of date. 12 Public Funding The Legal Aid Sentencing and Punishment of Offenders Act (LASPO 2012) radically altered the provision of Legal Aid. Schedule 1 of LASPO 2012 specifies which matters remain in scope (ie which matters can be funded) for immigration practitioners: • Judicial Review • Special Immigration Appeals Commission (SIAC) • Detention under immigration powers • Victims of domestic violence • Asylum claims • Asylum support • Victims of trafficking (If a particular category of work is in scope, advocacy will be permitted.) Section 10 of LASPO 2012 allows for ‘exceptional case determinations’ more usually known as Exceptional Case Funding (ECF). Section 10(3) of LASPO 2012 defines exceptional case determination for funding purposes: ...an exceptional case determination is a determination— (a)that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of— (i)the individual's Convention rights (within the meaning of the Human Rights Act 1998), or (ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or (b)that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach. Following a successful challenge to the ECF regime in R (Gudaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622 the Lord Chancellor has provided guidance on ECF at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/477317/legal-aid- chancellor-non-inquests.pdf. Since Gudaviciene there has been a significant rise in the proportion of applications for ECF which have succeeded. For further details see Chapter 8 of the Immigration and Asylum Handbook.