Immigration work - Guidance
Immigration work - Guidance
Published: 23 November 2022
This guidance is to help you understand your obligations and how to comply with them. We will have regard to it when exercising our regulatory functions.
Who is this guidance for?
All solicitors, registered Foreign lawyers (RFLs), registered European lawyers (RELs) and firms we authorise and those they supervise to undertake immigration work.
For the purposes of this guidance, the term 'solicitor' includes RELs and RFLs and the term 'you' is used interchangeably to describe individual solicitors or firms, depending on the context.
Purpose of this guidance
To help you understand:
- Where you can work if you wish to undertake immigration work.
- How our supervision rules apply in the delivery of immigration work.
- How your obligation to provide a proper standard service applies in the delivery of immigration work.
- Your obligations to support the effective administration of justice when undertaking or supervising immigration work.
Under the Immigration and Asylum Act 1999 (IAA) you must be a 'qualified' person (section 84(1)) to provide immigration and asylum advice and services to the public in England and Wales.
Solicitors, RELs and RFLs with a valid practising certificate and SRA-authorised bodies are 'qualified' under the IAA.
1. Where you can work
Under your SRA authorisation as a solicitor you can provide immigration advice and immigration services through:
- An SRA-authorised body.
- An authorised non-SRA firm that is a qualified person under the IAA, such as a firm regulated by the Bar Standards Board or CILEx Regulation to provide immigration work.
- As an employee, for your employer or work colleagues.
- Through a non-commercial service such as a law centre which is registered with the Office of the Immigration Services Commissioner (OISC) or is otherwise a qualified person under the IAA.
If you are a solicitor who undertakes immigration work as an employee, you may only supervise other people to carry out this work on your behalf if they are also qualified people under the IAA. In these circumstances they are not considered to be 'qualified' solely by virtue of being supervised by you.
If you are an SRA freelance solicitor you cannot undertake immigration work in that capacity.
Solicitors working in OISC regulated organisations
To work from a commercial OISC-regulated organisation you must be regulated as an individual by OISC, or otherwise qualified to provide such services under the IAA 1999. For example, by being authorised by another qualifying regulator, such as the Bar Standards Board.
To work from a non-commercial OISC-regulated organisation you do not need to be regulated as an individual by OISC. However, you may only supervise other people working in your non-commercial OISC regulated organisation if they are also qualified people under the IAA. In these circumstances, they are not considered to be 'qualified' solely by virtue of being supervised by you. In certain circumstances OISC can give consent in writing to a named individual being supervised by you where they are not 'qualified', for example where you are supervising trainee solicitors or those undertaking qualifying work experience.
The OISC's guidance OISC regulation and solicitors sets out what you need to do when you are working in an OISC-regulated organisation and requirements that you will need to meet. Specifically, you:
- may continue to refer to yourself as a solicitor, REL or RFL
- must meet OISC's regulatory requirements and co-operate with OISC as required.
If you are working from an OISC-regulated organisation and there is a conflict between the OISC and our regulatory arrangements, OISC's requirements prevail over ours.
2. Supervision arrangements for immigration work
If you are a supervising solicitor, you must effectively supervise work being done for clients. You are also accountable for work being carried out through those you supervise or manage to provide legal services.
Where supervision takes place in a firm we regulate, the Code of Conduct for Firms says you must make sure that:
- The service you provide to clients is competent and delivered in a timely manner, and takes account of your client's attributes, needs and circumstances.
- Your managers and employees are competent to carry out their role, and keep their professional knowledge and skills up to date - as well as understanding of their legal, ethical and regulatory obligations.
- You have an effective system for supervising clients' matters.
You should have regard to our effective supervision guidance when supervising immigration work.
We expect a supervisor to communicate directly with each person they are supervising often enough to ensure that the supervisor:
- Has clear oversight of work being done while it is live, at all key stages.
- is readily available to support the person doing the work.
- Can provide robust assurance that legal and regulatory requirements are being met.
If you are a solicitor supervising immigration work you should have some knowledge of each matter being progressed by the person doing the work and/or should monitor a meaningful sample of their work. This applies even where the person you are supervising does not have a contract of employment with you or your firm.
Our effective supervision guidance sets out the risk factors that supervisors and firms should consider when deciding how to supervise legal services. When applying the risk factors to supervising immigration work, you should consider the challenges immigration and asylum clients can face, for example, language barriers, vulnerability and lack of financial means. Solicitors and firms should also consider the significant impact that poor or defective advice can have in this area, for example deportation with limited scope for redress.
When supervising immigration work, these risks will impact on areas such as how many people individual solicitors can supervise. Where work is high risk, such as asylum, a supervisor might need to have some awareness of every file. Our effective supervision guidance sets out the factors you should consider when deciding on the span of your supervision.
The risks involved in delivering immigration work will also impact on when supervisors should check work, and what checks should involve. For example, where work is complex the supervisor should consider if they need to have sight of the whole course of a matter. Our effective supervision guidance sets out how to decide on checking work.
If you are supervising immigration work in an organisation regulated by another approved regulator or by the OISC, you will need to make sure you comply with any requirements or restrictions on supervision that are placed on that organisation by those regulators.
Working in this area of law can impact on the wellbeing and mental health of a firm's staff and put them at higher risk of experiencing vicarious trauma. Effective supervision can play an important part in supporting the wellbeing of staff. Our guidance on the workplace environment provides more information about supporting the wellbeing of staff. The guidance also links to our Workplace Culture Thematic Review , which includes examples of good practice that firms can adopt.
Case study: Supervision
This is a summary of real matter that was reported to us.
OISC notified us of a complaint from a client about immigration services provided by an individual who claimed to be supervised by a solicitor. We decided to investigate.
We contacted the solicitor to ask how they were supervising the individual as the supervision was taking place outside of a contract of employment. The solicitor claimed that because of the competence of the individual being supervised they did not need close supervision.
We investigated and found that the solicitor could not demonstrate or evidence to us that any effective supervision was taking place. For example, there was no evidence that files or documents had been reviewed or signed off by the supervising solicitor.
We worked with the solicitor to ensure that he was clear about his obligations around effective supervision and provided guidance about the rules that apply when supervising immigration work.
Checking the regulatory history of people to be supervised
Principle 2 requires you to act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.
There are several regulators who oversee immigration work. It is possible that someone wishing to carry out work under the supervision of you or your firm has been sanctioned in this area by us or another regulator.
You should ensure that either you, or the organisation you are working for, has checked the regulatory history of those undertaking immigration work under your supervision, including where they are not directly employed by you or your firm. You or your organisation can do this by looking at disciplinary information on our website or those of the Bar Standards Board, CILEx Regulation and OISC.
You should also be satisfied that standard background checks have been carried out of anyone who you intend to supervise. For example, references from previous employers have been obtained and Disclosure and Barring Service checks have been undertaken.
Supervising immigration work carried out by someone who has been disqualified under paragraph 4 of Schedule 6 to the IAA or prohibited from practising by another approved regulator is unlikely ever to be appropriate under Principle 2.
If, having considered the circumstances involved, you decide to supervise an individual who has been subject to disciplinary action by another regulator, you should put in place appropriate arrangements to mitigate the risks related to this.
This might include working with the individual to reflect on the incident that caused the disciplinary action, identifying appropriate arrangements to reduce the likelihood of a recurrence, putting in place enhanced supervision arrangements for the individual, for example, close face-to-face support, and documenting and recording this activity clearly.
If we identify that you, or those carrying out work under your supervision, have breached our Principles or Codes, a key factor when we are deciding what to do next will be whether the behaviour forms part of a pattern of repeated misconduct or regulatory breaches. This means that we will take any adverse findings by other regulatory bodies into account when deciding whether to take regulatory action. We will also consider the extent to which the risks related to those adverse findings have been mitigated by you.
3. Providing a proper standard of service to clients
Solicitors and firms must take account of client’s attributes, needs and circumstances and must not abuse their position by taking unfair advantage of clients or others.
At an initial meeting with an immigration client, you should discuss the legal issues, costs and what further documentation the client needs to provide. You should consider the extent to which your client might be able to engage with the information and advice you are providing and adapt your approach accordingly. For example, to not overwhelm them, you might need to have a short initial meeting and then follow up with a further meeting or call.
Clients seeking immigration advice can be vulnerable or become vulnerable as their matter progresses. This can be because of their personal background or situation, their personal attributes, or circumstances, such as physical and/or mental health issues, or because of limited financial means. Assessing a client's vulnerability will help you identify what support a client might need. For example, if they need help to interpret and translate information, and whether you could refer them onto relevant support agencies.
Providing information in a client-centred way
Solicitors are required to give clients information in a way they can understand and both solicitors and firms are required to make sure that clients receive the best possible information about how their matter will be priced, both up-front at a first meeting with a new client and while doing any work for them.
It will not always be appropriate to provide information about costs and services only in a standard format. If a client does not have strong spoken English, or struggles to understand English, you should consider what further steps you might need to take to support the client when providing information.
For example, you can make sure that documents are written in plain English and have them translated, or use an interpreter, if required. Asking a client’s family or friends to help with interpretation or translating documents can help with understanding of administrative matters, such as costs, but should not be relied on for substantive issues about a case, for example, explaining why an application has been refused.
You should check directly with the client so that you can be satisfied that they understand the advice you have given and the information about costs you have provided.
Being clear about your method of charging
- How their matter will be priced (both at the time of engagement and when appropriate as their matter progresses).
- The likely overall cost of the matter.
- Any other costs, such as disbursements.
Where you are a firm undertaking immigration work (excluding asylum applications), paragraph 1.3 of the SRA Transparency Rules requires you to provide the basis and the calculation of charges, including any hourly rates or fixed fees, and VAT.
Under paragraph 1.3 (d) of the SRA Transparency Rules, you must also describe and provide costs information about disbursements. If necessary, you should explain that the cost of disbursements might change, for example where you need to pay third parties in a foreign currency, then fluctuations in the exchange rate are likely to impact on final disbursement costs.
It is possible that clients will want to pay by cash as they might not have access to a bank account. You should be sensitive to and mitigate the risks associated with cash payments. Cash payments can be harder to document and evidence than other payment methods so can lead to discrepancies with clients about the money that has been paid or is owed for a matter. Firms should be able to demonstrate that they have appropriate records of cash payments from clients.
It will be easier for firms to record and provide receipts for cash payments where these payments take place in an office. Cash payments taken outside of an office, without receipts, risk vulnerable clients being taken advantage of.
If there is no alternative to taking a cash payment outside the office, you should make sure that there are appropriate procedures and checks in place for this. For example, firms can put arrangements in place so that fee earners do not take payments outside the office unless accompanied by another representative of the firm and can also make sure that they always provide receipts.
Overcharging is always unacceptable, but it can cause particular hardship for immigration clients who might have limited funds and restricted employment rights. You must make sure that your charges are fair. If you overcharge, you would be in breach of the Code, and your client can also seek redress from the Legal Ombudsman.
Being clear about other funding options
Some clients might be eligible for Legal Aid to fund their advice. You should consider this and advise clients accordingly about their options when you first contact them, even if the business you are working for does not undertake work on this basis.
If funding the case is an issue, you could assess whether the client might benefit from unbundling some aspects of the legal service. You should also assess other support available to the client and whether they can undertake the unbundled elements of the case.
Dealing with complaints
Solicitors and firms are required to inform clients about their right to complain and how to go about it. Our transparency rules also require firms to publish their complaints process on their website.
Some immigration services clients might be concerned that making a complaint could impact the way you are dealing with their matter or the progress of an application to the Home Office. Clients may also find it difficult to query your method of charging, your bill or raise concerns about your service because of language barriers.
You should be sensitive to these concerns by:
- Asking an interpreter, where possible, to explain the complaints process in the client's own language at an early stage of your engagement with them.
- Providing clients with reassurance that if they do make a complaint, it won't impact their case and that there will be no legal repercussions or detriment to the client or the matter
- Building trust with clients so they feel they can complain.
- Engaging in constant communication with the client to explain the process and prevent any misunderstanding.
You should also ensure that clients of those you are supervising (whether or not through a contract of employment) are made aware of their right to complain and how to go about it.
As with all complaints, you should try to resolve issues promptly. You should make sure that you understand the nature of the client's complaint fully and communicate your response in a way that the client can understand. You should also respond appropriately to any third-party intermediaries who the client involves in their case, such as citizens advice or a local councillor.
Your obligations to report regulatory breaches
If you become aware of an issue with a client's previous legal adviser you should consider your obligations under paragraph 7.7 of the Code for Individuals and your firm’s obligations under paragraph 3.9 of the Code for Firms to report promptly to us (or other regulators, as appropriate) any facts or matters that could amount to a serious breach of regulatory arrangements.
Our thematic review of immigration and asylum services includes a case study about reporting a previous legal adviser of an immigration client to us.
Training and competence
All solicitors must be able to demonstrate the steps they have taken to maintain their competence. Where you are a solicitor who manages individuals in the provision of immigration work, you must make sure that they are competent to carry out their role and that they keep their professional knowledge and skills up to date.
Firms are also required to make sure that their managers and employees are competent and have the right knowledge and skills to carry out their role.
Immigration and asylum law can be a complex, fast-paced and politically sensitive area of law, so it is important that solicitors and firms and those they supervise meet our competence obligations by keeping professional knowledge and skills in this area up to date on an ongoing basis and by making sure that staff working in this area do the same.
For individual solicitors this means regularly reflecting on:
- the nature of your practice, the types of clients you advise and their needs.
- Any developments in and changes to immigration and asylum law.
- Any feedback, which you should seek regularly from your clients, peers and those you supervise and/or are supervised by.
- Any other indicators of the quality of your advice and services, for example feedback from file reviews of your cases.
You should then use this information to identify your learning and development needs and put in place a plan for addressing those learning and development needs. You should record and evaluate your progress in addressing your learning and development needs. Our continuing competence resources provide further information to support you with this.
4. Supporting the effective administration of justice
Principle 1 requires solicitors and firms to act in a way that upholds the constitutional principle of the rule of law and to uphold the proper administration of justice. Paragraphs 2.1 – 2.7 of the Code for Individuals and paragraph 7.1 (a) of the Code for Firms set out duties to the courts, which include only making submissions that are properly arguable and not wasting the court’s time.
Poorly drafted applications or totally without-merit cases can lead to inefficiencies in the courts system and wasted court time as well as increased costs and lengthy delays for the client.
You should provide your client with a realistic assessment of the prospect of success of their case and make sure that your client fully understands the strengths and merits of their case. You can do this by discussing this verbally, providing a written record of this and keeping a copy of the record on file. You should not charge fees to make applications that have no realistic prospect of success.
The Law Society's practice note ‘Immigration judicial review’ provides information on the process and procedure involved in challenging immigration decisions by judicial review and advice on best practice.
Where you are supervising immigration work (whether or not through a contract of employment), you should be mindful of making sure that applications for judicial review drafted by those you supervise are of sufficient quality and that cases have merit.
Case study: Judicial reviews
The Law Society practice note: Immigration judicial review
For further assistance contact the Ethics Guidance helpline.