Guidance for immigration practitioners

Fresh guidance to specialist solicitors has been approved by the Law Society's immigration law committeeThis guidance supersedes that published two-and-a-half years ago in the Gazette [see [1999] Gazette, 13 January, 32] and in the current Guide to the Professional Conduct of Solicitors, 1999, eighth edition (the Guide).Independent organisations of non-solicitor immigration advisers may seek associations/ arrangements with firms of solicitors to avoid registration with the Immigration Services Commissioner on the basis that they undertake all of their immigration advice or services work 'under the supervision of' a solicitor.

Solicitors must be alert to this possibility, and the consequences for themselves of practising in any way which breaches professional rules and standards.

Practitioners are also referred to a recent notice (see [2001] Gazette, 17 May, 49) indicating that concerns relating to immigration advisers and organisations which may have failed to register with the Immigration Services Commissioner should be sent to the Office of the Immigration Services Commissioner, 6th Floor, Fleetbank House, 2-6 Salisbury Square, London EC4Y 8JX or telephone 020 7211 1500.The following guidelines, approved by the Law Society's immigration law committee in June 2001, constitute an amplification of the standard of practice that the Society considers essential for compliance with the rules of professional conduct when undertaking immigration, nationality and asylum work and contain best practice guidance.The guidelines may be taken into account by the Office for the Supervision of Solicitors in its investigation and determination of complaints - including those made by third parties - alleging inadequate professional service and/or professional misconduct arising from immigration, nationality or asylum work.

They may also be taken into account by the Immigration Services Commissioner in any exercise of his powers in relation to a complaint alleging breach of the Society's rules of professional conduct.The guidelines apply to solicitors and registered European lawyers (RELs) and to registered foreign lawyers when in practice with solicitors/RELs, and to anyone, including non-solicitors, supervised by solicitors or RELs.

References to solicitors in the guidelines includes RELs.GuidelinesGeneral duties(1) Solicitors are expected to maintain the highest traditions of professional service in the conduct of activities as advisers and representatives in the field of immigration, nationality and asylum law, and practice-related matters.

In particular:(a) They should give sound advice having familiarised themselves with the relevant law, the immigration rules (including details of any published concessions outside the rules), and the principal published materials that relate to the issue in question (for example, the best practice guides published from time to time by the Immigration Law Practitioners' Association/the Law Society/Refugee Legal Group, and the published determinations of the Immigration Appeal Tribunal, etcetera).(b) They should at all times show sensitivity to the particularly vulnerable position of those seeking immigration advice.

Practitioners should pay due regard to the related difficulties faced by such a client, and should ensure that the client fully understands the implications for his or her position of any decision or proposed course of action, making full use of an appropriate interpreter, who should be appropriately monitored and used for translation purposes only, as necessary.(c) They must not deceive or deliberately mislead the immigration authorities or the courts or knowingly allow themselves to be used in any such way.(d) They should consider whether, by virtue of their knowledge, skills and experience, they are competent to act in the particular case, and must not take on cases outside their area of competence or beyond their caseload capacity.(e) They must maintain proper records of their professional dealings, including records of the matters set out below.Costs information(2) Solicitors must observe practice rule 15 and the solicitors' costs Information and client care code in relation to the giving of advance costs information, general information for clients and complaints handling (see chapter 13 p.265-275 in the Guide.(3) At the outset, the question of whether the client is eligible for any level of Community Legal Service funding (legal help/controlled legal representation/legal representation) must be explored and discussed with the client.

It is good practice to make the client aware of the existence and range of any services for free representation.(4) Where a charge is to be made to a client for the provision of legal services, a written estimate of the costs should be supplied to the client at the outset of the matter to which the charge relates, with a description of the work to be done to a specified stage and the method of calculation of such fee (unless the fee is fixed) and the likely overall cost including disbursements and VAT.

Where the fee is likely to exceed the estimate given or requires variation, a written revision of the estimate and mode of calculation should be given as soon as it becomes apparent that the original estimate is likely to be exceeded or requires revision, and in any event before it is in fact exceeded.Appeals (5) In the conduct of appeals, a solicitor must take all reasonable steps to comply with the rules of procedure and with practice and court directions both to protect the interests of the client and to meet obligations to the court which includes the immigration appellate authorities.(6) A solicitor must not terminate a retainer except for good reason and upon reasonable notice, recording the reasons for terminating the retainer.

Where, for good reason, whether the client has Community Legal Service funding or otherwise, the solicitor determines his/her retainer, it must be with as much notice to the client as possible in all the circumstances.

Issues of merits, funding and arrangements to provide advocacy must be addressed at the earliest possible date so as to avoid damage either to the client's interests or to the effective operation of the court.

Such advice as may be appropriate should be given to the client for alternative representation.

Notice of withdrawal from representation must be promptly given to the court in such a manner as to minimise prejudice to the client.

(7) If a practitioner is without funds to cover a hearing it is unacceptable for the solicitor to terminate the retainer so close to the date of the hearing as to prevent the client having any opportunity of seeking to find alternative representation, or to hinder the court in adequately disposing of matters pending.

Lien (privately funded)(8) If the client terminates the retainer just before a hearing date and a successor solicitor is appointed, the Society recom-mends the papers be released to the successor solicitor, subject to a satisfactory undertaking as to costs being given in lieu of the exercise of a lien.Lien (CLS funded)(9) (a) Subject to the need to comply with the requirements of the general civil contract in relation to legal help and controlled legal representation, a solicitor who has acted in a CLS funded matter may call for an undertaking from a successor solicitor either:(i) to return the papers promptly at the end of the matter to enable a bill of costs to be drawn up; or(ii) that the successor solicitor will include the former solicitor's costs in a bill to be assessed, collect those costs and then pay them over to the former solicitor.(b) If the client subsequently acts for himself or herself, it is not misconduct for a solicitor to retain the file to get a bill drawn and assessed, but the client must be allowed access to the file and to take copies of the papers at the client's expense.Standard of work (10) A solicitor should not normally agree to represent a client where adequate preparation of a case is not possible, but in cases of urgency the solicitor may agree to act or continue to act for the purpose of applying for an adjournment.

Where an adjournment is refused, the solicitor must consider whether continuing to act compromises effective standards of representation.

If so, the solicitor should then not participate further in the hearing.Supervision(11) Solicitors must observe practice rule 13 in relation to supervision and management of a practice (see Chapter 3 p.66 of the guide and annex 3C at p.113 of the guide).

A breach of practice rule 13 amounts to professional misconduct.

Solicitors must ensure that all staff are properly supervised.(12) There is a general duty to ensure that a practice is properly supervised and managed, supported by examples of evidence that could be called upon should a failure of that duty be alleged.

Every practice must have at least one principal who is a 'solicitor qualified to supervise' as defined in practice rule 13.

Every office must have at least one solicitor qualified to supervise with that office being their usual place of work.

When the solicitor qualified to supervise at an office is away for any reason suitable arrangements must be in place to ensure that duties to clients and others are fully met.(13) Solicitors must be confident that non-solicitor staff are of good standing and repute and have proper knowledge and experience of the work for which they are being recruited.

Non-solicitor staff must also be properly supervised.

Supervision is overseeing and control within a practice of such persons' activities under a supervising solicitor's direction.(14) Solicitors must exercise great care in the recruitment of non-solicitor staff whom it is intended will undertake immigration work so as to avoid employing unsuitable staff.

Before employing non-solicitor staff thorough enquiries should be made as a matter of course about the prospective employee's background, for example, enquiring as to whether the person is subject to an order under section 43 Solicitors Act 1974 through the Law Society's regulation and information services or has been the subject of any disciplinary charge upheld by the Immigration Services Tribunal; and references should be sought.(15) Non-solicitor staff include legal executives and trainee legal executives, paralegals, clerks from time to time working away from the office, for example, attending with clients at Home Office interviews, attending clients at detention centres or at court; persons working out of solicitors' offices even if only in the office for a few hours each week; and any person paid by a solicitor to undertake immigration work or where there is any arrangement, however vague, between a practice and a non-solicitor, for the purposes of gain.

Even if it could be argued that there is not strictly an employer/employee relationship, for example if a person is an independent self- employed contractor working in the name of the firm, that person is the responsibility of the principal/s when engaged to carry out work on behalf of the firm and proper supervision must be exercised.

(16) Persons qualified to provide immigration advice or immigration services under part V of the Immigration and Asylum Act 1999 include those authorised to practise as solicitors in England and Wales by the Law Society or those working 'under the supervision' of such persons.

The Office for the Supervision of Solicitors will treat failure to supervise properly as professional misconduct.

In considering any complaint received by the Office of the Immigration Services Commissioner in connection with an alleged failure of a solicitor to properly supervise, the commissioner will also apply the Society's rules relating to supervision and these guidelines.

The term 'non-solicitor staff' should not be taken to include barristers practising at the independent bar (out of chambers).

Application of the guidelines(17) Solicitors are subject to all the rules of professional conduct and any contractual terms.December 1998 - updated February 1999 and June 2001