What legal representation is available in immigration and asylum matters and is there a regulatory system?

Why is legal representation useful for appeals before the Immigration & Asylum Chamber?

There are a number of reasons that anyone bringing an appeal before the Immigration & Asylum Chamber should use all means necessary to acquire legal representation. Experienced immigration solicitors and counsel will know how to navigate the complex system of immigration rules and human rights grounds of appeal. Procedural points can often be crucial to the outcome of immigration hearings. An appellant may not know what exactly he/she must prove or to what standard of proof. An appellant may not know exactly what documentary evidence would help his/her case and when he/she must send copies to the Immigration & Asylum Chamber and Home Office.

Until recent reforms, unqualified people were able to represent clients both when dealing with the Home Office in the initial stages of immigration matters and even at hearings at the Immigration & Asylum Chamber (then Asylum & Immigration Tribunal). This is no longer the case. Until 1 January 2000, there was also no legal aid available for immigration representation but this too has changed in favour of appellants.

Is there a dialogue between legal representatives and the immigration policy-makers in government?

Yes, experienced representatives often form organisations who are qualified to comment and consult on legislation, offering their opinions on potential consequences of new legislation on the current system. This is particularly important as the immigration rules change almost daily. It is crucial that legal representatives are kept up to speed with the latest updates. After all, asylum and immigration are highly politicised fields, in which changes come about via the law.

Why was a regulatory system set up to control who is permitted to represent in immigration matters?

To summarise, a regulatory body for legal representation in immigration matters was thought to be needed in order to rid the country of ‘unscrupulous immigration advisers’. An applicant for leave to remain (and particularly asylum seekers) may not be fluent in English; will no doubt know little about the UK’s legal immigration and asylum system and perhaps, crucially, will be vulnerable due to the significance of succeeding in this matter upon their future. So, combined with a lack of public funding and the freedom given to unregulated ‘representatives’, it is not surprising that many applicants were taken advantage of, during the 1990s and first few years of this decade. Even if an immigration adviser was indeed qualified, the work they carried out (again for extortionate fees) left a lot to be desired; the most likely reason being that immigration law is often omitted from the majority of professional training in law. There are even those who continue to set themselves up as immigration practitioners, charge ridiculously high fees and often provide services of little or no value to their ‘clients’.

What system is in place to protect applicants from being the victims of fraud or poor legal practice? 

Section 84(1) of Part V of the Immigration and Asylum Act 1999 prohibited anyone unqualified from giving out immigration advice or providing immigration representation. Under section 91, providing immigration advice outside what is set out in section 84 is an offence which could lead to imprisonment. The definition of a qualified person here, refers to an authorised member of a legal professional body (such as the Law Society or General Council of the Bar) or a person registered with the newly created Immigration Services Commissioner.

Generally, if an organisation (voluntary, or public funded) such as citizens’ advice bureaux comply with the requirements then individual workers at such organisations are exempt from registration with the Immigration Services Commissioner. Independent organisations can choose instead to undertake all their immigration work under the active supervision of a fully authorised solicitor, rather than applying for their own exemption. 

What is the role of the Immigration Services Commissioner?

The Immigration Services Commissioner must maintain a register of qualified immigration advisers (section 83) whilst promoting good practice within both immigration advice and representation services. The Commissioner must prepare their Rules and Codes of Standards regarding the conduct of all registered individuals and exempt bodies (all except legal professionals and government employees). In terms of registration, this occurs at a number of different levels which are assessed based on the scope and competency in the field of the individual or organisation in question. As of 2002, non practising barristers are required to apply for regulation.

In 2004, the powers of the Immigration Services Commissioner and his office increased to include the power of entry; search of premises and seizure of even legally privileged materials (section 38).

Regulation of representation in immigration offences is not covered by the Immigration Services Commissioner’s Rules and Codes of Standards because these are a branch of criminal law.

What regulation is there within legal professional bodies who represent in immigration cases?

The Immigration and Asylum Act 1999 left it up to legal professional bodies such as The Law Society and Bar Council to regulate themselves, despite lobbies for all individual immigration advisers to be individually registered. As a response, both the Law Society and Bar Council set up a voluntary panel and accreditation scheme for immigration advice and representation.

More significantly, the Law Society and Legal Services Commission set up a compulsory accreditation scheme for publicly funded work by legal professionals. However since April 2005, all advisers who are paid by public funds must be accredited and this, coupled with the allowable amount of public funding per asylum case being radically reduced in 2004, has had a dramatically negative effect on the availability of legal advice. Limits have also been placed on legal aid firms’ capacity to authorise their own expenditure.