Suzanne McCarthy, the current Immigration Services Commissioner
The Office of the Immigration Services Commissioner (OISC) is currently consulting on the regulation of immigration advisers. Or, more accurately, the de-regulation of immigration advisers.
It is illegal to give immigration advice in the UK unless the adviser is a member of an exempted profession (mainly solicitors and barristers) or is registered with the OISC at one of three levels. Level 1 does not involve giving advice as such, merely pointing an immigrant in the right direction or filling in simple forms. There is a test to pass to register at Level 1: an online multiple choice test done in the security and privacy of your own home. Meaning, of course, that anyone can take the test for you or even if you do it yourself you can look up the answers at your leisure. Level 2 allows the adviser to actualy give advice. Level 3 enables the adviser to carry out advocacy in the immigration tribunal.
It is all a bit more complicated than this, in fact, but life is too short to go into it further. The scheme is certainly not a simple one, and the OISC has struggled for the last decade to get the public, community groups, advisers and immigrants to understand it all. Now, the OISC is proposing to tear it all up, confuse the hell out of everyone again, merge levels 1 and 2 and allow current level 3 advisers to undertake judicial review applications in the new unified tribunal. As far as I can see from the consultation paper, there will be virtually no bar to anyone giving full-on immigration advice other than the at-home multiple choice ‘test’ and there will be no bar to OISC advisers undertaking judicial review work other than a simple advocacy test.
Now, I was an OISC adviser for years. There’s certainly nothing wrong with OISC advisers. I’ve seen terrible, terrible work by immigration solicitors and excellent work by OISC advisers. But the idea that an OISC adviser would be adequately equipped to do JRs after an advocacy test by the OISC is ridiculous. And the idea that the OISC is basically giving up on preventing the ignorant from giving immigration advice is very dangerous. It will reverse the admittedly limited progress the OISC has made into closing down dodgy immigration agents and consultants.
If the OISC was serious about regulation they would concentrate on improving their screening and application process, their visits, enforcement action and audits and basically get on with it. This looks like a classic governmental response: failing to do the job properly despite having perfectly good powers in place, blaming the legal framework and fiddling repeatedly with the rules to move the goalposts. We see it often enough in immigration law already, thank you very much. The proposals will do nothing to prevent or close down bad advisers. Instead this will distract the OISC and the regulated advice sector for a couple of years while simultaneously making it easier to give incompetent advice.
If you are concerned about the regulation of immigration advisers and the quality of advice given to immigrants, you may wish to respond to the consultation.
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I am an OISC registered advisor, and I completely agree. The one thing that we get drummed into us is that we shouldn’t advice beyond our competence, and I can’t see how any OISC advisor who has not had specialist advocacy training, experience and, frankly, done a BVC and a pupilage, can possible represent at JR adequately. I know I couldn’t, and I wouldn’t take that risk with my clients.
The proposals are troubling. Alongside the idea of letting us do JR work, there are proposals to make those of us who are level 3 and want to continue representing at the AIT but no higher take extra exams and (of course) pay a higher fee. For many, myself included, it’s sort of like making Alex Ferguson take his FA badges despite years as a successful manager…
The OISC is flawed, but it is better now that there is some regulation. But I do think that money spent on this restructure could be spent on enforcement and prosecution of dodgy or unregulated advisors. Or improving the CPD.
“… the idea that an OISC adviser would be adequately equipped to do JRs after an advocacy test by the OISC is ridiculous.”
I work for a company that has 5 solicitors, or should I say, 5 OISC advisors registered at level 3, but who all hold practising certificates. All are incredible lawyers, and are regulated by the OISC rather than the SRA by choice, for administrative reasons.
The statement above suggesting that they are not equipped to do JRs simply because they are regulated by the OISC is quite frankly ludicrous.
Your colleagues sound quite unusual, I think you’ll agree. As I understand it, though, if they hold practising certificates then they are regulated by the SRA. There are substantial differences between the regulatory schemes, though, it is true. OISC advisers are far more lightly regulated. For example, there is no real ethical code, there is no ethical ‘hotline’ and it is only very recently that there was any continuing training requirement. There is no obvious way for OISC advisers to get trained up to new levels and there is no apprenticeship element to it, which is how really good solicitors become really good. In contrast, it really doesn’t take a lot to get OISC regulated. That does not mean there are not some very good OISC advisers, though, as I made very clear in the post.
“….. the idea that an OISC adviser would be adequately equipped to do JRs after an advocacy test by the OISC is ridiculous.”
I am one affected by this and find myself arguing from both sides.
Do you know what the HOPOs are going to do? They too do not have JR experience in the sense proposed.
That’s an interesting question. We don’t know. Many reps would probably rather keep Treasury Solicitors involved if only because (with no disrespect to HOPOs intended) they have better lines of communication to the powers that be within the Home Office and are usually quite willing to concede where the Claimant has a good case.