Immigration - supervision and work

Guidance issued by the Law Society's standards board - September 2002

1.

Introduction

1.1 Solicitors who work in the field of immigration are providing a valuable service in a free and democratic society.

Those needing immigration advice and services are often some of the most vulnerable people in our community.

They, therefore, require particular protection from incompetent or unscrupulous advisers.

1.2 The Law Society has become concerned about circumstances where solicitors may (possibly unwittingly) be lending their names as supervisors of non-solicitor firms which provide immigration advice and services.

1.3 The Society is equally concerned about the possibility that some solicitors may be allowing their firms' names to be used by unqualified advisers without realising that this is permissible only if the adviser is working within the solicitor's practice under proper supervision.

1.4 There is also concern that solicitors should not breach the rules which ban the making of unsolicited approaches to members of the public, and which ban solicitors from rewarding those who introduce clients to their firms.

1.5 Practitioners should be aware that the Society views breaches of the rules of conduct as being a potentially serious matter and that, depending on the circumstances, the matter may be referred to the Solicitors Disciplinary Tribunal (which has powers to fine, suspend or strike off).

1.6 The purpose of this guidance is to bring the issues to solicitors' attention so that they may be on their guard and avoid breaching their professional obligations.

This guidance was approved by the Society's standards board in September 2002, with the agreement of the Society's immigration law committee.

The Office of the Immigration Services Commissioner (OISC) has provided useful input into this guidance and the Society is grateful for its assistance.

2.

Background

2.1 The Immigration and Asylum Act 1999 (the Act) established a new regulatory regime for persons who provide immigration advice or services.

From 30 April 2001, it became a criminal offence for advisers to provide immigration advice or services unless (broadly):

l They are registered with OISC or supervised by a registered person; or

l They are authorised to practise by a designated professional body or supervised by an authorised person.

2.2 The Law Society is a designated professional body, and, therefore, neither individual practising solicitors nor solicitors' firms are required to be registered with OISC.

2.3 Registered foreign lawyers (RFLs) are also authorised by the Law Society if - but only if - they are partners in a multi-national partnership (MNP), directors of a company which is a recognised body, or members of a limited liability partnership (LLP) which is a recognised body.

3.

Solicitor asked to supervise the work of a non-solicitor immigration adviser

3.1 The Society is concerned by reports of solicitors being requested to supervise the work of non-qualified immigration advisers in circumstances where it appears that this is merely a device to avoid the immigration adviser needing to register with OISC.

The Society considers that the purpose of the Act was to exempt from a requirement to register with OISC solicitors and staff supervised as part of their practice.

It was not intended to allow solicitors to provide nominal supervision to non-solicitor businesses.

Supervision of immigration work for the purpose of the Act must be an internal function and form part of the management structure of the firm.

It is not possible for a supervisor to fulfil this task properly unless that person works as a part of the firm.

The Society takes a similar view regarding the provision of other 'reserved' activities - such as conveyancing and probate.

3.2 Solicitors need to be aware, therefore, that this kind of involvement with a non-solicitor organisation is likely to involve a breach of the Solicitors Practice Rules 1990, in particular:

l Practice rule 1 (basic principles);

l Practice rule 4 (employed solicitors); and/or

l Practice rule 5 (providing services other than as a solicitor).

3.3 Practice rule 1 sets out a solicitor's fundamental duties, which include preserving his or her integrity and the good repute of the profession.

Practice rule 4, broadly, prevents a solicitor working in a non-solicitor firm doing, or taking responsibility for, work for the public.

Practice rule 5 prevents a practising solicitor from becoming involved in the running of a non-solicitor business which provides legal services.

3.4 Practitioners approached to supervise the work of a non-solicitor immigration firm are strongly advised to refuse to become involved.

4.

Supervision of staff in a solicitors' practice

4.1 The Society is also asked, from time to time, for advice concerning the supervision requirements when a solicitors' practice employs staff, whether qualified or unqualified, who deal with immigration work.

The staff may be employed under a contract of service or a contract for services.

Solicitor principals must comply with practice rule 13 with regard to the supervision and management of their practice.

See also principle 3.07 and annexes 3C and 21G in the Guide to the Professional Conduct of Solicitors, 1999, eighth edition.

Solicitor principals, as a matter of professional conduct, must ensure that staff (whether employed under a contract of service or a contract for services):

l Are competent to carry out the work; and

l Are appropriately supervised.

4.2 'Supervision' in the context of practice rule 13 refers to the professional overseeing of staff and the professional overseeing of clients' matters.

Operationally, supervision may be delegated within an established framework for reporting and accountability.

However, ultimate responsibility remains with the principals.

The Society acknowledges that work may properly take place away from the office (for example, when staff visit clients, attend court etc, or if a person normally works away from the office, such as a teleworker) but it is important that systems of supervision and management encompass these situations.

4.3 Practice rule 13, however, also prohibits a non-solicitor immigration practitioner from operating, as a member of a solicitors' practice, from a separate office, unless a solicitor who is qualified to supervise is employed at that office.

4.4 In addition, solicitors should be aware that unqualified staff working on immigration matters must be supervised by a solicitor (or by an RFL principal or by a person registered with OISC) in order to comply with the requirements of the Act.

This can only be done if the unqualified staff, even if employed under a contract for services, are working within the firm's practice, and not if they are working independently.

The Society takes a similar view as regards the provision of other 'reserved' activities - such as conveyancing and probate.

4.5 Solicitors and RFLs working in MNPs should also be aware that an MNP which provides immigration services must have at least one solicitor partner who is qualified to supervise under rule 13.

4.6.

Before taking on an immigration adviser, solicitors would be wise to check with OISC (6th floor, Fleetbank House, 2-6 Salisbury Square, London EC4Y 8JX, tel: 020 7211 1500) as to whether anything adverse is known about a particular individual.

OISC will require an individual's consent before disclosing certain information so it would be prudent to obtain that individual's consent to disclosure.

4.7 If an adviser intends to work on a part-time basis, practitioners are recommended:

l To check that the adviser's activities will be covered by the firm's qualifying insurer so as to ensure that they are not in breach of the Solicitors Indemnity Rules; and

l To provide a letter for the adviser to show to third parties (such as immigration adjudicators) confirming that the adviser represents the solicitor's firm in a particular matter; inviting a third party who might have any concerns to contact the supervising solicitor (providing details); and inviting the third party who might still have concerns to check the information given on the letterhead with the Law Society (Information Services section, tel: 0870 606 2555).

5.

Arrangements for introduction of clients

5.1 Solicitors are reminded that it is a breach of practice rule 2 to 'cold call' (that is, make unsolicited visits or telephone calls to a member of the public) for business, whether this is done by a member of the solicitor's staff or by someone else on the solicitor's behalf.

'Cold calling' would include, for example, making unsolicited approaches to people arriving at ports of entry.

5.2 Solicitors are also reminded that it is generally a breach of practice rule 3 for a solicitor to make payments to persons for the referral of work.

6.

Further information

6.1 Practitioners' attention is also drawn to Guidelines for immigration practitioners - practice information which was issued by the Society's immigration law committee in June 2001 (see [2001] Gazette, 5 July, 42, and available at: www.guide-on-line.lawsociety.org.uk in chapter 12, annex 12C).

6.2 Solicitors or RFLs who have any queries about their professional responsibilities are invited to contact the professional ethics division for confidential advice, at Ipsley Court, Berrington Close, Redditch, Worcestershire B98 0TD, DX 19114 Redditch; tel: (direct line) 0870 606 2577, fax: 020 7320 5897 or e-mail: professional.ethics@lawsociety.org.uk