Risk factors in immigration work
Risk factors in immigration work
Issued on 7 December 2016
Purpose of this guidance
This guidance is relevant to any firm or individual fee earner engaged in providing immigration services, and to the Compliance Officers for Legal Practice (COLPs) in such firms. It highlights those areas where some firms are failing to comply with the Principles and achieve the relevant outcomes with regard to the costs information they provide to their clients, the costs they charge and when taking judicial review proceedings.
While this document does not form part of the SRA Handbook, we will have regard to it when exercising our regulatory functions.
The SRA Principles
You have a duty to:
- Uphold the rule of law and the proper administration of justice - Principle 1
- Act with integrity - Principle 2
- Not allow your independence to be compromised - Principle 3
- Act in the best interests of each client - Principle 4
- Provide a proper standard of service to your clients - Principle 5
- Behave in a way that maintains the trust the public places in you and in the provision of legal services - Principle 6
The SRA mandatory outcomes
You should have regard to the specific Outcomes under the SRA Code of Conduct 2011, in particular those highlighted below.
You should have particular regard to the following Outcomes in respect of the costs information you give to your clients, and the costs you charge:
O(1.1) – you treat your clients fairly
O(1.12) – clients are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them
O(1.13) – clients receive the best possible information, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of their matter
O(1.14) – clients are informed of their right to challenge or complain about your bill and the circumstances in which they may be liable to pay interest on an unpaid bill
We are concerned that some firms are failing to comply with Chapter 1 of the Code in respect of the costs information which you are required to give to your clients. The outcomes listed above apply to all clients, but they are particularly important in this area of practice, where your clients are likely to be vulnerable.
These clients may have only recently arrived in the country and are likely to be unfamiliar with the legal process. In most cases, English will not be their first language and even if their English is reasonable, it may not be sufficient to understand legal terminology. Some may be traumatised from their experiences or suffer from mental health issues. They might also be facing the threat of deportation.
The key issues we have identified are set out below.
Private paying clients
If the client is paying privately, then to achieve Outcome (1.12), you must not only ensure that you give the client the best information possible concerning your charges, but that you provide it in a way that the client will understand.
Depending on the client, therefore, it may not be sufficient simply to provide the information in your standard terms of business. You should consider the particular needs of the client; it may well be in the client’s best interests to ensure that you go through the information with the client face to face. You should be prepared to provide clear explanations, allowing sufficient time to do this and avoiding technical terms where possible.
If the client is not proficient in English, then you may need to discuss with the client the options available in respect of translating the information (see IB(1.19)). If the client chooses to rely on a friend or relative, you should satisfy yourself as best you can that he or she has sufficient understanding and is providing the client with a full translation.
Even if you meet with the client, it is advisable to provide the client with a written record of the costs information you have given. Most firms do this as a matter of course, despite the fact that there is no specific requirement in the Code to do so. However, it has obvious benefits for the client, as well as protecting you in the event that the client subsequently complains that he or she was not given or had not understood the information provided.
Your client may be eligible for legal aid, even if your firm does not undertake work on this basis. You could be at risk under Principle 4 (client’s best interests) and Outcomes (1.1) and (1.12) above if you fail to consider this and advise your client accordingly (see IB (1.16)).
Method of charging
In order to achieve Outcome (1.13), providing the client with the best possible information includes explaining, where relevant, any implications for the client.
For example, if you charge an agreed fee, the client should understand that although you cannot increase that fee, you will not refund it to the client if you do not complete the matter for whatever reason (eg if the client decides to go elsewhere), and the client’s right to challenge the costs may be restricted. You should make it clear whether disbursements are included in the agreed fee or not.
Similarly, if you charge a fixed fee, you should explain where relevant that the fee may be increased if, for example, you have to undertake work which was not originally foreseen. For more information on agreed fees and fixed fees, see our Question of Ethics.
Remember – to achieve Outcome (1.13), you are not just required to give your clients information about your costs at the outset of the retainer, but also to update your clients as the matter progresses.
Payments during the course of the retainer
You may be at risk under Outcome (1.13) if you do not explain to your client any reasonably foreseeable payments which the client may have to make, either to a third party or to your firm (eg for disbursements) and when those payments are likely to be needed. Giving your client advance notice enables the client to make any necessary arrangements in good time.
You must act with integrity and treat your client fairly when it comes to costs. You will be at risk if
- you are charging on a time basis, but you fail to keep accurate records for the purpose of time costing, or
- you fail to properly record all sums paid to you (eg on account of costs) and/or you fail to give your client a receipt for all cash sums he or she pays to you
Overcharging is always unacceptable, but it can cause particular hardship for immigrants who may have limited funds and restricted employment rights.
They may also find it harder to query your costs or complain about your bill because of language difficulties, cultural barriers or fear that it may prejudice the way you deal with their matter. You must therefore explain to your clients that they are entitled to challenge or complain about your bills and how they can do this (O (1.14)).
If you are involved in judicial reviews, you must bear in mind the need to achieve the following Outcomes:
O(5.1) - you do not attempt to deceive or knowingly or recklessly mislead the court
O(5.5) - where relevant, clients are informed of the circumstances in which your duties to the court outweigh your obligations to your client
O(5.6) - you comply with your duties to the court
O(1.5) - the service you provide to clients is competent, delivered in a timely manner and takes account of your clients’ needs and circumstances
Acting in the following way may tend to show you have not achieved the outcome and therefore complied with the principles:
IB(5.7) - constructing facts supporting your client’s case or drafting any documents relating to any proceedings containing any contention which you do not consider to be properly arguable
The majority of applications for judicial review which reach the paper application stage are refused permission. Of those, approximately 20% are rejected by the court as ‘totally without merit’ (TWM). TWM applications have risen sharply in recent years, with the majority of these decisions involving a challenge under Article 8 of the European Convention on Human Rights.
It is not clear why TWMs have increased so greatly. However, in order to comply with Principles 1 (upholding the rule of law and proper administration of justice), 4 (client’s best interests) and 5 (proper standard of service) and Outcome (1.5), you should ensure that:
- you do not submit any application for judicial review without your client’s specific instructions. Bearing in mind the failure rate of such applications, it is important to discuss with your client whether the likely outcome justifies the expense involved (see IB (1.13)).
- where your client instructs you to apply for judicial review as a last resort in circumstances where there are no proper grounds for such application, you explain to your client that you owe duties to the court and cannot act on the client’s instructions where to do so would be an abuse of process (see Outcome (5.5) above).
- If you are relying on exceptional circumstances, you set out in full what those exceptional circumstances are. Failure to do so could result in the application failing and expose your client to unnecessary costs.
- you do not simply submit generic applications on behalf of your clients. There is a risk in doing so that the application will contain errors which put you at risk of failing to achieve Outcome (5.1). Moreover, your duty to provide a proper standard of service and to act in your client’s best interests means that you should ensure that each application properly takes account of that client’s circumstances and includes sufficient detail.
- staff preparing the applications have the necessary competence and legal knowledge. The courts have criticised the quality of some of the applications, including poor English; the lack of detail in the statements submitted; references to out-of-date cases and submitting applications out of time.
Your systems and procedures
You should have regard to the following Outcomes if you are the Colp for your firm, or you are a sole practitioner, manager or the head of an in-house legal department:
O(7.2) - you have effective systems and controls in place to achieve and comply with all the Principles, rules and outcomes and other requirements of the Handbook, where applicable
O(7.3) - you identify, monitor and manage risks to compliance with all the Principles, rules and outcomes and other requirements of the Handbook, if applicable to you, and take steps to address issues identified
O(7.6) - you train individuals working in the firm to maintain a level of competence appropriate to their work and level of responsibility
O(7.7) - you comply with the statutory requirements for the direction and supervision of reserved legal activities and immigration work
O(7.8) - you have a system for supervising clients’ matters, to include the regular checking of the quality of work by suitably competent and experienced people
Insofar as training is concerned, see also the Statement of Solicitor Competence and in particular, the requirements in section A.
Given that these are vulnerable clients, it is advisable to take additional care to ensure you meet the Outcomes referred to in this guidance. You may wish to consider whether there are additional steps you could take to monitor the potential risks which arise from this area of practice.
For guidance on any of the above matters, contact the Professional Ethics Guidance Team.
Use www.sra.org.uk/immigration to link to this page.