Evidence submitted by the Office of the
Immigration Services Commissioner (AIA 33)
INTRODUCTION
1. The OISC is an independent non-departmental
public body (NDPB) headed by the Immigration Services Commissioner.
The Commissioner's general duty is to promote good practice in
the giving of immigration advice.
2. The OISC was set up under the Immigration
and Asylum Act 1999. Part V of that act makes provision for the
regulation of immigration advisers and immigration service providers.
Since 1 May 2001 it has been unlawful for any person to provide
immigration advice by way of business in or from the United Kingdom,
unless they are registered to do so by the OISC, or are solicitors,
barristers or legal executives regulated by their own Designated
Professional Body (DPB) or European equivalent, or have otherwise
been exempted from registration. The OISC has been given responsibility
for creating a regulatory scheme. Its tasks include:
— regulating immigration advisers in
accordance with the Commissioner's Rules and Code of Standards;
— receiving and handling complaints
about immigration advisers;
— maintaining and publishing the register
and list of advisers; and
— processing applications for registration
or exemption from immigration advisers.
— Regulation of immigration advice
provided by designated professional bodies, such as solicitors,
by passing complaints onto their respective regulatory bodies
and monitoring their complaint handling processes.
THE RATIONALE
BEHIND THE
ESTABLISHMENT OF
THE OISC
3. The Government's main aim in setting
up the OISC was to root out unscrupulous advisers who were believed
to be preying on the vulnerable and to promote good practice in
the immigration advice sector. This was to be achieved by intervention
to improve the standard of advice given and by offering clients
a forum for complaints about poor service.
THE OISC'S
TASK OF
REGULATION
4. Within the framework of Section V of
the 1999 Act there is considerable scope as regards the means
adopted for the design and implementation of a regulatory scheme.
The OISC must seek to ensure that those who provide immigration
advice or services:
— are fit and competent to do so;
— act in the best interests of their
clients;
— do not mislead any court, tribunal
or adjudicator; and
— do not seek to abuse immigration
or asylum procedures.
5. The means used by the OISC to achieve
these ends include:
— audit of advisers' procedures and
competence by caseworkers;
— investigation of complaints against
anyone providing immigration advice or services;
— investigation and prosecution of
advisers believed to be operating illegally;
— the facilitation of support and training
sessions, both internal and external;
— issuing guidance to advisers.
OISC REGULATION
6. The fundamental duty of the OISC is to
promote good practice in the provision of immigration advice and
services. The manner in which we have chosen to do this is through
responsible regulation. There are four main elements to our approach:
— Through the audit process we diagnose
the strengths and weaknesses of individual advisers, and identify
means by which they may come to meet the required standards.
— Through the investigation of complaints
we monitor the incidence of poor advice provision and bad practice
among immigration advisers, and take appropriate action.
— Through participatory regulation
the OISC is an active participant in issues of concern to the
immigration advice sector.
— The OISC also spreads good practice
through the dissemination of information.
7. Under statute, we offer registration
to those organisations that provide advice on a for-profit basis
and list voluntary sector or not-for-profit organisations as exempt
from paying the application fee. Registration at present is on
an annual basis, whilst exemption lasts until such time as it
is withdrawn.
REGULATION THROUGH
AUDIT
8. Through application and audit advisers
are permitted to practice at levels ranging from Level 1, dealing
with simple applications through to Level 3, that deal with the
most complex applications and advocacy. The OISC does not see
the audit process as simply a matter of determining whether an
organisation meets the standards of fitness and competence required
of advisers, but rather as a dynamic process. In this our approach
differs from other regulators that tend to regulate through complaint.
Increasingly, our experience over the last two and a half years
has shown that we cannot rely on complaints alone to identify
shortcomings in the performance of advisers, as there may be a
reluctance to go through the complaints procedure for various
reasons. Accordingly, our increasingly refined audit process that
rigorously tests both fitness and competence will be our main
tool of effective regulation. In working with our regulatory scheme
we have become more pro-active, looking at organisations before
they enter our scheme, periodically while they are within it and
getting alongside people and working with them towards the broad
goal of raising standards of service and spreading awareness of
relevant immigration issues.
REGULATION THROUGH
COMPLAINTS
9. We have tried to ensure that clients
of immigration advisers should be aware of what constitutes bad
practice and are able to complain directly to the OISC although,
in the last year, the total number of complaints against OISC
regulated advisers remained unchanged, we were pleased to note
that there was an increase in the percentage of complaints that
came directly from the aggrieved clients themselves. Almost 50%
of complaints were from clients about OISC advisers as opposed
to 42% for complaints against advisers regulated by DPBs or advisers
operating illegally.
PARTICIPATORY REGULATION
Community Awareness Programme (CAP)
10. CAP is our external affairs initiative.
This initiative is targeted at raising awareness of our scheme
and the work of the OISC through interacting with different communities.
The primary aims of the CAP are:
— to establish, develop and maintain
channels of communication between the OISC and those who have
a vested interest in the immigration advice and services sector;
— to raise our awareness of the immigration
advice and services sector;
— to increase the sector's awareness
of the role and work of the OISC;
— to further develop our understanding
of the sector, especially the small community-based organisations
and to encourage them to come forward for regulation.
11. It is anticipated that the above aims
would impact on the OISC by increasing applications, complaints,
investigations and ultimately prosecutions.
12. The positive results of both OISC CAP
and OISC advertising are evident as the public are the greatest
source of information for both complaints and investigations.
The aim is to build on the advertising campaign in England, by
undertaking CAP initiatives focused outside London to ensure an
increase in awareness about the role of the OISC on a national
basis.
THE CURRENT
POSITION
13. To date we have registered 172 for profit
organisations and exempted 969 not for profit organisations. Put
in context, this is compared to over 10,000 solicitors firms in
England and Wales. We cannot rest content with this, given that
we know from our work to date that there are a substantial number
of advisers still to be brought into the scheme.
14. There are no accurate figures as to
how many solicitors firms provide immigration advice, but there
are currently 511 solicitors contracts in immigration and 92 not
for profit organisations, 33 of these are within our scheme, five
of them are large contracts, with the RLC and IAS for example.
We cannot rest content with this, given that we know from our
work to date that there are a substantial number of advisers still
to be brought into the scheme.
15. As our knowledge of the field has increased
we have come to understand how wide our remit is and the corresponding
need to focus resources, to identify problem areas, and to assess
risk. Quite apart from the problems of identifying what types
of organisations fall within the scheme there is the need to work
more closely with communities to gain the confidence of small
organisations and to find more pro-active and innovative ways
to make the requirements of the regulatory scheme more accessible.
16. In the current business year we intend
to identify 400 organisations that are potentially providing immigration
advice or services whilst unregulated by the OISC. Of those 400
we expect to generate 200 organisations that will either come
forward for regulation or provide evidence that they no longer
provide immigration advice or services. This is in addition to
possibly 600 organisations that will come forward to be regulated
by us in December of 2003 that provide advice or services in connection
with work permits.
17. We have also aimed to refine our audit
process, moving from a focus on organisational standards to one
that incorporates the audit of the quality of advice being provided.
This stems from the belief that whilst examining organisational
standards is of value, it is of far greater value to directly
examine the advice given and the care taken in pursuing the client's
interests.
THE REGULATION
OF IMMIGRATION
ADVISERS
18. We believe that a number of organisations
are unintentionally continuing to provide advice without applying
to the OISC. This may be because they are still not aware of the
requirement to be regulated by us. In other cases there may be
high staff turnover, especially in the voluntary sector, resulting
in an application not being taken forward, or where immigration
is only a peripheral part of their work. When identified, steps
are taken to bring them into the scheme. Means used include advertising
nationwide on the bus networks and at strategic London Underground
stations, and raising awareness through various Community Awareness
Programme (CAP) initiatives. The latter include information-sharing
workshops and the publication of articles in the local and community
press. We have also simplified the application form, hoping to
lower as far as possible the bureaucratic hurdles for organisations
that are new to our requirements.
19. Inevitably there are other organisations
that are aware of the legal requirement to register with the OISC
but which have tried to evade regulation. Where our investigations
unit has detected organisations of this type we send them information
about the OISC and invite them to apply for registration or exemption.
20. Some types of organisations offering
immigration advice have been exempted by Orders made by the Secretary
of State under Section 84(4)(d) of the 1999 Act:
Statutory Instrument 2001 No. 1403: The Immigration
and Asylum Act 1999 (Part V Exemption: Educational Institutions
and Health Sector Bodies) Order 2001 exempts from the scheme
state institutions of higher education and their students' unions,
and health sector bodies and those giving advice for or on behalf
of these bodies.
Statutory Instrument 2001 No. 3025:The Immigration
and Asylum Act 1999 (Part V Exemption: Relevant Employers) Order
2002 exempts from the scheme employers who offer advice and
services only to their employees or prospective employees in relation
to work permits.
BRINGING NEW
ORGANISATIONS INTO
THE SCHEME
21. The OISC does a great deal to help organisations
join the Scheme and to improve their procedures and quality of
advice once they have done so. We run support seminars to aid
organisations in completing their application forms, and assign
each a caseworker at the beginning of the process to assist them
with the completion of the application pack and its submission.
Subsequently we offer support and training in the law and in organisational
standards. Last year some 200 new registered and exempt organisations
were listed on the OISC website.
THE AUDIT
PROCESS: QUALITY
AND COMPETENCE
22. The effectiveness of regulation by other
regulators relies on prior qualification, the training of members
and upon the administration of their complaints. Our process at
the OISC differs markedly from this, as it is dependant in great
part upon audit. We undertake periodic audit based inspections
of OISC registered advisers before they can renew their annual
registration. We ask all advisers to satisfy us as to their knowledge
and competence in immigration before practising. It is for the
advisers to satisfy us that they are fit and competent to provide
immigration advice or services. The must continually satisfy us
of this in order to continue to do so.
23. We carry out two specific types of audit,
a pre-registration audit and a full premises audit. The pre-registration
audit is carried out on most new organisations to ensure that
they meet our standards. These tend to centre on organisational
standards as most start-ups will not have files available to review.
Our caseworkers also discuss with prospective advisers areas of
immigration law, seeking to assess their knowledge and familiarity
with procedure. The second type of audit that we carry out are
full audits looking at the competence of advisers and the quality
of advice provided to their clients. This is done through discussion
with the advisers and examining case files.
24. We intend to carry out pre-registration
premises audits as a matter of course on organisations newly applying
to the OISC. Increasingly, we are attempting to identify issues
of concern or opportunities to further good practice at the application
stage, so that we are able discuss these with advisers at the
premises audit prior to granting approval. In many cases approval
will now be dependent on an adviser's ability to take further
action to improve quality of service and advice given.
THE NEW
AUDIT PROCESS—TESTING
QUALITY
25. Over the past year we have succeeded
in changing the emphasis of our audit process from assessing organisational
standards to assessing the quality of advice given. We have devised
a series of tools to test the knowledge of our advisers and their
ability to apply the law. We have also developed a risk assessment
strategy, based on an assessment of our advisers after audit,
to assist us to identify areas of maximum and minimum concern.
It is through the targeting of our audit process that we shall
make the scheme more cost effective.
26. Where improvements are required, the
main areas of concern relate to training and issues of good practice.
In furthering good practice we encourage high standards in file
management, attendance notes, and the recording of all relevant
information on file. Training is particularly likely to be an
issue where advisers are seeking to move up a level, or have applied
at a level for which they do not at present have the expertise.
Caseworkers will require advisers to undertake appropriate training
before granting approval, or seek evidence of supervision or the
availability of second tier advice while the training is completed.
To ensure that advisers keep up to date we refer them, for example,
to Internet sites which detail changes in immigration rules and
procedures, and highlight useful legal precedents.
A PARTNERSHIP APPROACH
27. Caseworkers work in a way that allows them
to look at each individual organisation—respecting how it
works; its particular needs, aims, stage of development and its
particular cultural focus. Caseworkers work within agreed boundaries,
governed by internal systems that relate to the Commissioner's
Rules and Code of Standards, but are open in their approach and
reasonable in their decision-making. Where possible we work with
advisers—unless the adviser proves to be uncooperative,
unscrupulous or dishonest.
28. The advantages of these new processes
include the following:
— better knowledge about those coming
under regulation of OISC;
— improved standard of advisers admitted
into our scheme;
— no increase in the number of complaints
about unscrupulous or incompetent advisers; and
— dissemination of the message to other
advisers or would-be advisers of the standards we require.
USE OF
EXTERNAL EXPERTS
29. The OISC employs a team of external
consultants who are noted experts in immigration law and procedures.
They are used on an ad hoc basis by caseworkers to accompany them
on audits and to assist in the testing competence, particularly
where the outcome is likely to be contentious. Use of experts
serves to enhance the OISC's credibility and accountability in
decision-making, and their reports are used to provide objective,
independent evidence in respect of competence, for example where
an application is to be refused, or where registration or exemption
is to be withdrawn, or where it is proposed to lower the level
at which an adviser is allowed to practise.
CONSEQUENCES OF
THE AUDIT
PROCESS
30. Information resulting from audits by
OISC caseworkers can result in a variety of outcomes:
Status Quo: The majority of audits result in
the adviser's status being confirmed but suggestions being made
to improve the quality of the service provided. No action is taken
against the adviser as they have shown themselves fit and competent
to continue providing immigration advice or services.
Commissioner's complaints: Under paragraph 5(4)
to Schedule 5 of the 1999 Act the Commissioner is enabled to initiate
a complaint relating to fitness and competence of advice given
or alleged breaches of the Commissioner's Rules or Codes of Standards
in the same way as a complaint had been made under the OISC complaints
scheme. To date we have seldom made use of this formal procedure
since advisers normally co-operate with our caseworkers and make
improvements voluntarily.
Refusals: In 2002-03 15 registered applications
were refused by caseworkers, which includes six continued application
refusals) and 26 exempt applications (as opposed to 16 registered
and 30 applications in 2001-02). The main reasons for the refusal
of applications for registration were that the adviser was incompetent
and/or unfit or non-compliance with OISC requirements. Main reasons
for the refusal of applications for exemption were non-compliance,
lack of Professional Indemnity Insurance, incompetent and unfit
advisers.
Changes of levels: During the initial application
stage, caseworkers are increasingly approving applications at
a level lower than that applied for having taken into account
the knowledge and competence of the applicant. In addition organisations
coming forward for renewal of their registration are having their
levels of operations scrutinised and amended where appropriate.
We also get applications from organisations whose advisers wish
to be raised a level, for example, due to training they have undergone.
THE OISC AND
THE DESIGNATED
PROFESSIONAL BODIES
31. The Designated Professional Bodies are
named in s.86 (1) Immigration and Asylum Act 1999 as:
(b) The Law Society of Scotland;
(c) The Law Society of Northern
Ireland;
(d) The Institute of Legal Executives;
(e) The General Council of the
Bar;
(f) The Faculty of Advocates; and
(g) The General Council of the
Bar of Northern Ireland.
32. As a general principle, the effectiveness
of regulation by the DPBs rests upon prior qualification and training
of members and on the continuing professional development requirement
made of them, and also upon the administration of their complaints.
The DPBs do not require a periodic audit based inspection of their
members or of the organisations they work in, as is now required
of OISC registered advisers before they can renew their annual
registration. Nor does any DPB ask its members to satisfy them
as to their knowledge and competence in immigration before practising,
as will ultimately be asked of registered advisers under the OISC
scheme.
33. In overseeing the regulation of immigration
advice or services by the DPBs we are under two specific duties:
— To report on the effectiveness of
regulation overall.
— To report on instances of ineffective
regulation.
34. 40% of all complaints received by the
OISC concern solicitors. We have developed a system to look at
complaints with the Office for the Supervision of Solicitors and
are constantly reviewing our working relationship with them and
other DPBs.
THE WAY
AHEAD
35. We will continue to develop our quality-based
approach to audit, by refining the indicators we use, by continuing
to use experts, both external and internal, and by adopting a
more prescriptive approach to training requirements. We aim to
develop our approach to assessment of competence through the introduction
of competence testing. In the course of the year caseworkers have
put a lot of effort into developing and testing these new approaches
and we now need to consolidate our findings into a flexible but
well-defined process. In doing this we recognise the importance
of our work on quality for those we regulate and for others who
have an active interest in giving legal advice.
36. As part of our efforts to develop quality,
competence and consistency in our work, we have appointed an Audit
Project Co-ordinator responsible for helping organisations achieve
consistency in the quality of immigration advice and services
they provide in the UK, whether these organisations are registered
or exempted by the OISC.
37. Two of our major tasks are, to provide
systems and tools enabling our caseworkers to assist advisers
in improving competence and client care and in recommending the
best course of action to their clients. Second, to monitor closely
the implementation of the new systems and the proper use of the
given tools in order to ensure that they are functional and useful,
and will help us achieve consistency and quality on a national
scale.
38. We are co-ordinating this in the process
of devising a set of written assessments to test adviser competence.
These assessments will provide valuable data as to the areas of
knowledge, skills and resources for each adviser and will identify
their training and development needs. The OISC caseworkers will
start implementing these assessments as of October 2003 during
premises audits.
COMPLAINTS
Processing complaints
39. Paragraph 5 of Part 1 of Schedule 5
to the 1999 Act details the responsibilities of the Commissioner
to deal with complaints regarding the fitness and competence of
persons offering immigration advice or services. Complaints may
be from clients, from other advisers, or from members of the public.
In certain cases the Commissioner may instigate investigations
on his own behalf.
THE RELUCTANCE
TO LODGE
COMPLAINTS
40. OISC caseworkers undertaking audits
ensure that advisers implement their internal complaints procedure
and encourage clients to complain to the OISC if they have previously
received incompetent advise. Nonetheless we are aware that there
are various factors that may inhibit clients from complaining
to the OISC. These include:
— Disclosure of Complainant's identity.
— Attendance as a Witness.
41. Given these constraints on those who
might otherwise make complaints, the imperative to have an efficient
and effective audit process is all the greater. For it is through
the audit process that the OISC can directly act to raise standards
or identify incompetent or unscrupulous advisers.
FUTURE PARTNERSHIP
WITH THE
DPBS
42. In three important ways the regulation of
solicitors and barristers has moved towards the principle of asking
them to show their fitness to practise and their competence other
than through the investigation of complaints.
43. Solicitors in England and Wales who
hold Legal Services Commission contracts for publicly funded work
are subject to continuing peer review based audit by the Legal
Services Commission, an increasingly stringent finance and competence
based inspection—a form of regulation, though not by a Designated
Professional Body. It is a major scheme and involves a significant
number of solicitors but is outside the remit of this report.
However, the linkages between the Legal Services Commission and
the Law Society of England and Wales in following up cases where
the Legal Services Commission have taken action against solicitors
failing under their scheme is an appropriate regulatory matter.
44. The Law Society of England and Wales
and The General Council of the Bar of England and Wales both operate
accreditation schemes under which members are invited to demonstrate
their knowledge and expertise in immigration practice, both in
written and oral submission, supported by case studies. I am grateful
to the two bodies for the opportunity they have given me to see
their schemes in detail. Though somewhat different in their emphases,
I have been impressed by the rigour of the examination they make
of the practitioners coming forward and intend to use this experience
when I come to introduce my own variation of a testing regime
for newly applying advisers. However, the schemes are voluntary
and, so far, have been used by a very small proportion of members
in each branch of the profession, although I do understand that
the Legal Services Commission may introduce a requirement for
accreditation drawing on the experience of the Law Society scheme
as a pre-requisite to funding for certain immigration publicly
funded work—this principle is an undoubted advance in the
regulation of solicitor immigration work.
45. I understand that the Law Society of
England and Wales are extending their Standards Practice Unit
in order to enable them to visit solicitors, offering support
and guidance. As yet, it is not clear how this will apply to immigration
advisers, but it is anticipated that this will take a significant
part of their resources. And for those members who practise outside
the legal aid scheme—a significant sector of the profession—it
is potentially an effective regulatory measure.
DELIVERY OF
SUPPORT AND
TRAINING
46. In 2002-03, following a survey of support
and training needs, we have moved to a more strategic approach
to training and support. In the course of the year we subsidised
registered organisations to attend JCWI and ILPA courses. Some
47 organisations—over a third of the registered sector—took
advantage of this. Feedback from these courses in turn indicated
areas of the law where the registered sector had particular training
needs.
47. We also commissioned two very experienced
immigration practitioners and trainers from the immigration advice
sector to draft and deliver training on the Nationality, Immigration
and Asylum Act 2002 across the country. This was a particularly
ambitious project in that it was intended to provide material
of relevance to OISC-regulated advisers at all levels and in all
categories of law.
48. Following the very positive evaluation
of the previous year's Immigration Training and Development Project
we worked on a continuing programme this year that included a
course in immigration at level two and aim to run 30 courses in
total. We have also funded the Northern Ireland Law Centre to
run training in immigration at level one following the successful
training they ran in 2002.
49. In autumn 2002 we started to run regular
application support seminars for organisations that wanted to
apply to the OISC. These courses covered the application process
and requirements
DISSEMINATION OF
INFORMATION
50. During the course of the last year we
began to turn our attention to the importance of disseminating
information about good practice. To this effect we are working
in partnership with the immigration advice sector. The need is
to address the issue of what is good immigration advice not only
through promoting good practice, and ensuring fitness and competence,
but by informing those who need immigration advice what good advice
is.
51. Immigration detainees are in a particularly
vulnerable and isolated position, and the problems they face in
accessing immigration advice, and in assessing good quality immigration
advice, has been brought to the attention of the OISC from a number
of sources, including AVID, immigration advice providers in the
voluntary sector, and her Majesty's Inspector of Prisons. In order
to do this we worked in partnership with other regulatory, professional,
and funding organisations in the immigration advice sector: ILPA,
LSC, the Law Society of England and Wales, and the Law Society
of Scotland to produce a leaflet "Legal Advice for people
who are detained by the Immigration Service."
52. This leaflet, currently available in
15 languages in addition to English, informs detainees:
— of their right to legal advice and
who may provide this;
— of how to find a legal representative,
and that free advice is available;
— what to expect from a legal representative.
53. The leaflet was launched on 27 March
2003. It will be issued to all immigration detainees in removal
centres, advertised widely and used by visitors groups and other
support and advice agencies. It is available on the prison intranet
and the OISC website.
54. We hope to replicate the partnership
initiative in future, for example, in producing a leaflet for
asylum seekers that would be relevant throughout the asylum process,
but particularly at the induction phase, and help to resolve the
problem of touting.
THE COSTS
TO PUBLIC
FUNDS OF
SUPPORTING NEW
APPEALS STRUCTURES,
SUCH AS
THE ASYLUM
SUPPORT ADJUDICATORS,
AND OF
SUPPORTING THE
EXTENSION OF
LEGAL AID
55. We have been consulted on proposed changes
to publicly funded immigration and asylum work. Our response to
this particular consultation has been submitted separately however
with specific regard to the extension of legal aid we would state
the following. Currently legal aid is provided to solicitors and
certain voluntary sector organisations. The rationale for this
appears to be the amount of control that the Legal Services Commission
(LSC) can exercise over the regulation of representatives. Hitherto
it has been considered that the Office for the Supervision of
Solicitors (OSS) has exercised sufficient control to enable the
LSC to be content that solicitors firms are not making unwarranted
demands on public funds. What we have shown previously is that
there is now a system in place to exercise control over non-professionally
qualified advisers. Our Level three advisers appear regularly
at the Immigration Appellate Authority and Tribunal (IAA/T). Through
a system of quality-based audits and complaint investigation there
is now a regulatory framework established that is analogous to
that exercised by the OSS. Non-professional advisers charge fees
that are comparable to solicitors and there is no reason in logic
why such advisers should not, with appropriate consideration,
have the facility of legal aid extended to them. Indeed there
is at least one adviser on our books that has a relationship with
firms of solicitors "contracting out" to him the role
of advocate before the IAA/T. Furthermore, there are some large
voluntary sector organisations that have franchises and are already
part of our scheme. The rationale that these advisers are non-professionally
qualified and therefore not deserving of having public funds extended
to them does not bear close examination. These advisers are specialists
with in many cases extensive experience in the sector. It appears
inequitable to continue with such a tortuous distinction, when
advisers that are not legally qualified and within our scheme
are so closely monitored.
56. Our response to the current proposals
regarding the limitation of legal aid funding in immigration and
asylum cases has been addressed to the Department for Constitutional
Affairs as part of their consultation process. Some of the main
areas of concern are:
— We are of the opinion that five hours
preparation time before the first decision may in many instances
be inadequate.
— The importance of quality advice
appears to be at odds with current proposals.
— Within the limited time available
advisers could potentially be forced to take short cuts and not
fully examine all aspects of their client's case.
As a regulator we have prided ourselves on our
concentration on the quality of advice or services, hence current
proposals present a conflict for those we regulate. Many of the
more reputable advisers will be forced to give up this area of
practice rather than compromise their professionalism, thereby
leaving a vacuum to be filled by those that are prepared to give
a less rigorous service. Even if this were not the case, it will
mean an exponential increase in work for those that do not provide
legal aid advice. Advisers within the OISC scheme tend to charge
less than those within the professions, it is probable that they
will get a disproportionate amount of extra work that many, especially
in the voluntary sector, are not equipped to handle.
57. Further, it is proposed that the five-hour
legal aid can be extended if there has been a complaint lodged
with the OISC. We have grave concerns that this will lead to an
increase in spurious complaints to us in an effort to circumvent
this rule. This will divert our resources away from the areas
most needed.
58. The quality-based approach that we have
adopted is a progressive way of improving the competence of those
that appear at appeals. This however cannot be improved if advisers
are overwhelmed with too much new work, but without the means
to address the greater demand. It may be that this is simply shifting
the perceived problem from one area to another, and not as a solution
to the problem itself.
AVAILABILITY AND
PROVISION OF
LEGAL ADVICE
AND INTERPRETATION
59. In our view it is misleading to believe
that the UK is totally covered by non-legally qualified advisers.
The majority of advisers providing Level 3 advice are based in
London and the South East. Level three advisers are the only ones
permitted by our scheme to appear before the IAA/T. There are
15 hearing centres sited around the country, four are in London
and the South East, but there are centres located for example
in Stoke-on-Trent and North Shields. There is a paucity of Level
three advisers outside of London and the South East. To illustrate
the point, there are 29 advice organisations within a 50-mile
radius of North Shields, of those however, there are only two
that have been authorised to provide Level three advice. Both
of these are from the voluntary sector. What it is indicative
of is that there may be a lack of service provision in that particular
area. It may of course be said that free-market forces will soon
address this and for profit advisers may move into this area,
however despite dispersal since July 2000, there has not yet been
a consequent rise in of advisers in this area. Whilst solicitors
may provide the majority of representation in this area and some
London firms may carry on representation after dispersal, the
danger is that there will be many that will fall through the gaps
and receive no representation at all. This will lead to an increasing
number of appellants appearing before the IAA without adequate
representation. Whilst there is a presumption against adjourning
such cases, the inequities of the situation and the extra demands
made on judicial time are readily apparent. The position therefore
is that there is a danger of having too many people chasing too
few advisers and quality of advice may be driven down.
60. With reference to interpretation services,
the extension of legal aid to cover such services is at odds with
current proposals. OISC regulated advisers are required to engage
an interpreter where there are language difficulties. When doing
so they are expected to use objective criteria and be aware of
any issues that would not best serve their client. The reality
of the situation however is that many of the advisers within the
scheme especially those of the smaller community-based organisations
already have the requisite language skills. It would be impractical
and onerously expensive to require them to engage an independent
interpreter. It is at this stage also impractical to suggest that
our advisers only use those interpreters accredited by the Institute
of Linguists.
John Scampion CBE
Immigration Services Commissioner
5 September 2003
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