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What is Immigration advice?

Immigration advisers provide advice and services on:

• claims for asylum
• applications for entry clearance or leave to enter or remain in the United Kingdom (UK)
• immigration employment documents
• nationality
• citizenship
• residence
• deportation or removal
• bail applications and appeals against deportation

It is a criminal offence for a person to provide immigration advice or services in the UK unless their organisation is regulated by the Office of the Immigration Services Commissioner (OISC) or is otherwise covered by the Act.

 

Sources: http://www.oisc.gov.uk/how_to_become_an_immigration_adviser/

 

OISC levels

The three levels of immigration advice that the OISC uses are as follows:

• Level 1 - Initial advice
• Level 2 - Casework
• Level 3 - Advocacy and representation.

 

Levels and types of work

Advisers working at a particular level do not need to be competent in all the categories of work permitted at that level. For example, at Level 2, someone providing immigration advice and/or services on nationality issues does not have to be competent at Level 2 in EU and EEA work. However, all advisers at Levels 2 and 3 must be competent in all areas permitted at Level 1, regardless of the areas of their competence at Level 2 or 3. This means, for example, that a business immigration specialist working at Level 3 is expected to be competent in nationality or EEA work at Level 1.

Also, advisers do not need to undertake all aspects of the work permitted to obtain permission to provide advice or services at a particular level. For example, at Level 2, an adviser is allowed to lodge appeals but does not have to do this in order to be permitted to work at this level.

 

Sources: http://www.oisc.gov.uk/how_to_become_an_immigration_adviser

/guidance_on_competence/

 

Work permitted at Level 1

At this level, applications permitted within the Immigration Rules are listed below. Where cases become complicated or an application is refused, an adviser must refer a client to a higher level adviser as soon as possible. A case may become complicated, for example, where the Home Office questions the validity of evidence or calls a client in for an interview. Level 1 advisers can work on Leave to Remain applications only where the client has outstanding leave. An adviser at Level 1 must establish whether a client already has a more qualified legal representative. Where this is so, the Level 1 adviser must check with that adviser before carrying out any work and copy relevant information to that adviser. The type of work that might be carried out in these circumstances will always be administrative, e.g. notifying the Home Office of a client's change of address.

 

Sources: http://www.oisc.gov.uk/how_to_become_an_immigration_adviser/guidance_on_competence/oisc_level_1/

 

Work permitted at Level 2

At this level, more complex applications in all categories are permitted as well as applications outside the Immigration Rules and applications under Home Office concessionary or discretionary policies. An adviser at this level can submit One-Stop Notices and lodge appeals on initial grounds but must then refer the case to a higher level adviser.

The following additional work is permitted at Level 2:

• applications to the UKBA, including asylum and human rights applications and concessionary or discretionary applications
• Case Resolution/Legacy Cases and Active Review
• applications for Humanitarian Protection
• representing clients in correspondence with the UKBA and at UKBA interviews
• representations to the UKBA in support of cases
• drafting client statements, including asylum statements
• submitting One-Stop Notices
• lodging appeals (only in exceptional circumstances where immediate referral is not possible)
• applications for temporary admission and Chief Immigration Officer's bail
• family reunion applications
• representations regarding ongoing immigration or asylum casework to MPs
• instructing a barrister or advocate for advice and to draft appropriate grounds of appeal (where permitted by the Bar Council)

 

Sources: http://www.oisc.gov.uk/how_to_become_an_immigration_adviser/guidance_on_competence/oisc_level_2/

 

OISC Level 3 - Advocacy and representation

 

Work permitted at Level 3

Some advocacy work is permitted at Level 2, for example a Level 2 adviser may make written and oral representations to the UKBA. However, it is only possible to represent clients at appeal hearings before an immigration judge at the AIT at Level 3. Level 3 work is any work done pursuant to the lodging of the notice of appeal against refusal, as well as the conduct of specialist casework, e.g. challenging existing case law and third country asylum cases. It requires a high level of knowledge of immigration law and practice, including a thorough conversance with relevant case law, human rights legislation and also asylum law where applicable. Level 3 advisers should also be aware of rights and procedures connected with judicial/statutory review, although they are not permitted to represent clients in proceedings in higher courts, nor to instruct counsel to do so.

Work permitted at Level 3 includes:

• conduct of specialist casework
• preparation of cases in the AIT, including drafting full grounds of appeal
• representing clients before the AIT
• instructing a barrister or advocate to appear at the AIT (where permitted by the Bar Council)

 

Competence requirements

Advisers at this level, in addition to the competences required at Levels 1 and Level 2, need to demonstrate the following:

Knowledge

1. Detailed knowledge of immigration, asylum and nationality law, including:

• grounds for complex applications in the areas of work in which advice/services are provided
• UKBA and AIT practice in the consideration of appeals and complex cases
• UKBA concessionary/discretionary policies in complex cases
• grounds of appeal to the AIT, including human rights and race relations grounds.

2. Detailed knowledge of relevant rights of appeal, time limits and procedures in the AIT, up to and including full hearings before the AIT, and sufficient awareness of rights and procedures in relation to judicial/statutory review to make appropriate referrals to a solicitor.

3. A sufficiently thorough knowledge of relevant case law and precedents to identify and make good use of appropriate case law to support a client's case, anticipate and respond effectively to the citing of precedents by the immigration authorities, and to do so during a hearing where necessary. Also sufficient knowledge and skill to be able to challenge existing case law where appropriate.

4. A sufficiently thorough knowledge of the types of evidence needed to support complex cases and appeals up to AIT level and how to obtain them.

5. A sufficiently thorough knowledge of the European Convention on Human Rights (ECHR), the Human Rights Act 1998 (HRA), the Race Relations (Amendment) Act 2000 and other relevant international law relating to immigration and asylum cases to be able to make effective and appropriate representations using this legislation in complex cases and appeals up to AIT level.

6. Clear understanding of the limits to the adviser's knowledge and competence and of how to refer cases on. This includes a general knowledge of immigration, asylum and nationality law and procedure to ensure that a client can be referred on for advice in areas in which the adviser is not qualified at Level 3. Advisers at Level 3 must be competent in all areas of work permitted at Level 1.

Skills and aptitudes

Interviewing and advising

The ability to explain clearly to the client in plain language the progress of their case, including the progress of any appeal, the outcome of the hearing, the implications for the client and the options open to them. Also to advise on the merits of further appeals and take clear instructions from the client as to how they wish to proceed.

Drafting

The ability to draft in clear, written English, making use of case law and human rights legislation where appropriate:

• complex applications
• complex letters, statements and representations
• full grounds of appeal to the AIT
• witness statements
• skeleton arguments and other relevant documents for AIT cases
• instructions to a barrister or advocate
• statements and other relevant documentation for higher court work.

Analytical and advocacy skills

Where the adviser wishes to represent clients at hearings before the AIT, sufficient verbal and written advocacy skills to do so effectively, including the ability to:

• make clear, cogent oral and written representations in the course of legal proceedings
• identify when it is appropriate to apply for an adjournment of a hearing
• identify the salient points in an argument and respond to them effectively, in the course of a legal hearing where necessary
• re-evaluate evidence in the light of representations from the UKBA
• anticipate and respond effectively to the citing of precedents by the immigration authorities, in the course of a hearing where necessary
• challenge existing case law where appropriate
• make effective and appropriate representations in appeal proceedings using ECHR, HRA, the Race Relations (Amendment) Act 2000 and other relevant international law relating to immigration and asylum cases
• accurately assess the merits of referring a case to a solicitor for judicial/statutory review proceedings.

While Level 3 advisers may have the ability to draft statements and other relevant documentation for higher court hearings, they must not represent or seek to represent clients in higher courts. The Court and Legal Services Act 1990 and the Solicitors' Act 1974 govern rights of audience in higher courts. These Acts deny a right of audience to those who are not legal professionals except in certain circumstances, such as where a judge has allowed a right of audience as a McKenzie Friend. An OISC-regulated adviser, who by definition provides immigration advice and/or services in the course of a business, must not seek to appear as a McKenzie Friend. OISC-regulated representatives must not seek to appear unless they have rights of audience under the primary legislation noted above.

Record-keeping and case management

Excellent record-keeping and case management skills, including the ability to:

• collate a well organised and well presented hearing bundle
• manage a busy schedule, including a diary of required attendances at legal hearings, and deal effectively with conflicting priorities while protecting the client's best interests
• maintain a clear record of case conferences with counsel and the client, including any discussion of the options open to the client, the merits of any appeal, the implications for the client and any further instructions taken

 

Sources: http://www.oisc.gov.uk/how_to_become_an_immigration_adviser/guidance_on_competence/oisc_level_3/