Knocking on haven's door

Andrew Towler looks at the problems facing immigration lawyers and finds that the Law Society and the government have come together to force out unregulated advisers who abuse the system

The recent case involving Afghani couple Farid and Feriba Ahmadi and their two children, in which the whole family were refused asylum by the Home Office and deported to Germany, has again thrust immigration into the news.

The government was heavily criticised by campaigners for the Ahmadis for allowing 'legalised child abuse' and the extent of passion was highlighted by supporters' threats to throw themselves in front of any aeroplane carrying the family out of the country.

This is only the latest in a long line of immigration issues to hit the headlines - and law firms have not escaped unscathed.

Problems were recently highlighted in a report by the Office of Immigration Services Commissioner (OISC), the government body that regulates all immigration advisers in the UK not already governed by a designated professional body (DPB) such as the Law Society.

The report stated that in the past year 178 complaints were received about advisers regulated by DPBs, of whom 90% were solicitors.

As a result, the Law Society and the OISC is putting together a memorandum of understanding to improve adviser regulation.

In fact, in a 1998 interview with the Gazette, Jack Straw - then Home Secretary - criticised immigration solicitors for 'ripping off the system' and suggested he would pass the names of 38 law firms to the Office for the Supervision of Solicitors (OSS) for unscrupulous behaviour.

However, an OSS spokesman says the office was never informed of the firm's identities and no complaints were lodged.

Jawaid Luqmani, partner at London firm Luqmani Thompson & Partners and treasurer of the Immigration Law Practitioners Association, says it is a combination of factors that has made life difficult for immigration lawyers.

'The legal aid spend on immigration has increased considerably recently and some solicitors are taking the money but not actually doing the job properly,' he says.

'There is also some degree of lazy thinking and planning by lawyers, but this is a minority and I don't believe there is evidence to say most are milking the system.'

OISC commissioner John Scampion says he does not lay the blame for these figures solely at the door of solicitors.

'The field of immigration and asylum has broadened in a short space of time and there are far more solicitors working now than there were ten years ago.

Thus, a lot of solicitors are on a learning curve in this area and there is a wide spread of ability,' he says.

One of the problems highlighted by the report concerned advisers, who failed to obtain OISC regulation, incorporated themselves into law firms, and were therefore then regulated by the Law Society.

'Substandard advisers getting involved in these arrangements is a very real problem,' says Mr Scampion.

'Both the OISC and the Law Society recognise the potential for abuse here and we are working together to combat it.

We have a mutual interest in the issue as sometimes the adviser will be in the wrong and the solicitors unwitting, and other times the firms will knowingly breach the rules.'

Mr Luqmani echoes the need to clamp down on the practice.

'The OISC code of standards is not hugely onerous, so you must ask why, if an adviser is competent, they are hiding behind law firms.

The Law Society has issued guidance that it would be professional misconduct to harbour an adviser not regulated by the OISC.'

When such arrangements occur between non-regulated advisers and law firms, there is an obvious overlap of interests and governance between the Law Society and the OISC.'The real danger is that there will be no effective regulation at all,' says Mr Scampion.

'We are working on a memorandum of understanding with the Law Society so that any complaints about solicitors or firms we receive are passed over to them and in return we get a work in progress report and any relevant complaints passed to us.'

Julia Onslow-Cole, partner and head of global immigration at CMS Cameron McKenna, has as good a view of the situation as anybody, being a consultant to the OISC advisory panel and an assessor on the Law Society immigration panel.

'The onus should definitely be on solicitors to be vigilant about who is joining their firms,' she says.

'It gets very messy if there isn't a clear division between the OISC and Law Society - the system is being abused and it should be a fundamental duty for solicitors to check their own staff.'

Mr Luqmani concurs: 'The OISC and Law Society must decide as a partnership how to tackle the problem.

There is need for a clear and transparent protocol so everybody can see where the fault lines lie between the two.'

Maria Fernandes, partner at London firm Fernandes Vaz and chairwoman of the Law Society's immigration committee, says: 'This is a genuine point of concern and we have to look at the issue of who the complaints should go to, because I don't think the public know.

The OISC has received a number of complaints about immigration solicitors, but the number received by the OSS is low - public awareness must be increased.'

Ms Fernandes says as part of its regulation the Society is encouraging solicitors to join its immigration law panel.

'We want the panel to become a quality mark and are pushing for membership to become compulsory if you want a legal aid contract to practice immigration law.'

Myrtle Walter, an assistant solicitor at Folkestone firm Gambrills, says the introduction of contracting for legal aid work has helped oust bad immigration advisers from the field.

'Prior to franchising there was no control over immigration solicitors and it was a free-for-all,' she says.

'Most clients are vulnerable and ignorant asylum seekers with little money and are easily abused by solicitors.

But civil contracting has brought control and quality to those doing the work and the abuse is being phased out.'

Despite these good omens, Ms Walter says her firm is considering closing its immigration department.

'Unfortunately, it just isn't cost-effective anymore.

There is no limit to how much you can do - if you do asylum work for one person they often pass friends and family on to you - but the legal aid available doesn't make it viable.'

Ms Onslow-Cole, whose firm deals with business immigration as opposed to asylum, concurs with Ms Walter in so far as the market is looking more positive again.

'We are phenomenally busy at present,' she says.

'The US market is picking up again and despite reports of increased redundancies in the City, we are processing more work permits than ever.'

As for how the regulation of advisers should be handled in the future Ms Onslow-Cole says the Law Society has 'a daunting task ahead'.

She explains: 'Changing its rules will be tricky, but I get the impression the Law Society is concentrating its mind more on this area as an issue.'

Mr Scampion is realistic about the impact the OISC has made since its inception in May 2001.

'I think we have made a reasonable start,' he says.

'We haven't been wholly successful yet, but we have taken tough lines on standards of conduct and action against people who show no willingness to improve.

We are going in the right direction though and we are beginning to show signs of success.'

And Mr Scampion is positive about the OISC's relationship with DPBs.

He says: 'There have been practical difficulties and we have come across hurdles from time to time.

But we will continue to build our relationship and seek out ways of working more closely with organisations such as the Law Society to improve our mutual interest in this area of work .'