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Legal Services Bill [HL]


Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 1 — Qualifying regulators

327

 

      (4)  

In subsection (2)(c) the reference to persons who are also authorised by the

applicant to carry on activities which are reserved legal activities includes,

in relation to any application by the Law Society, registered foreign lawyers

(within the meaning of section 89 of the Courts and Legal Services Act 1990).

6     (1)  

After considering—

5

(a)   

the application and accompanying material,

(b)   

any other information provided by the applicant,

(c)   

any advice duly given and representations duly made by virtue of

paragraph 4, and

(d)   

any other information which the Board considers relevant to the

10

application,

           

the Board must decide whether to grant the application.

      (2)  

The Board must give notice of its decision to the applicant (“the decision

notice”).

      (3)  

Where the Board decides to refuse the application, the decision notice must

15

specify the reasons for that decision.

      (4)  

The Board must publish the decision notice.

      (5)  

Paragraph 15 of Schedule 4 (period within which decision must be made)

applies in relation to a decision notice under this paragraph as it applies in

relation to a decision notice under paragraph 14 of that Schedule.

20

Effect of application

7     (1)  

Where an application is granted under paragraph 6, the decision notice must

specify that the applicant is a qualifying regulator for the purposes of Part 5

of the Immigration and Asylum Act 1999 (c. 33).

      (2)  

Where an application is granted under paragraph 6, the proposed

25

regulatory arrangements are at the same time treated as having been

approved by the Board.

      (3)  

But if the application was made in reliance upon paragraph 3(3)(b), the

applicant’s status as such a qualifying regulator and the approval of its

proposed regulatory arrangements under sub-paragraph (2) are conditional

30

upon the Lord Chancellor making an order under Part 2 of Schedule 4

designating the body as an approved regulator in relation to one or more

reserved legal activities.

Loss of qualifying regulator status

8     (1)  

Where a qualifying regulator—

35

(a)   

ceases to be an approved regulator, or

(b)   

ceases to be a designated qualifying regulator within the meaning of

section 86A of the Immigration and Asylum Act 1999 by virtue of an

order under subsection (3) or (4) of that section,

           

it also ceases to be a qualifying regulator.

40

      (2)  

But sub-paragraph (1) is without prejudice to a body’s ability to make a

further application under paragraph 3.

 

 

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 2 — Amendments of the Immigration and Asylum Act 1999 (c. 33)

328

 

      (3)  

If a body in the list in paragraph 2 ceases to be a qualifying regulator by

virtue of sub-paragraph (1), the Lord Chancellor must, by order, remove it

from that list.

Part 2

Amendments of the Immigration and Asylum Act 1999 (c. 33)

5

9          

The Immigration and Asylum Act 1999 is amended in accordance with this

Part of this Schedule.

10         

In section 82(1) (interpretation of Part 5), after the definition of “designated

professional body” insert—

““designated qualifying regulator” has the meaning given by

10

section 86A;”.

11         

In section 83 (the Immigration Services Commissioner), after subsection (6)

insert—

“(6A)   

The duties imposed on the Commissioner by subsections (3) and (5)

apply in relation to persons within section 84(2)(ba) only to the

15

extent that those duties have effect in relation to the Commissioner’s

functions under section 92 or 92A.”

12    (1)  

Section 84 (provision of immigration services) is amended as follows.

      (2)  

In subsection (2)—

(a)   

after paragraph (b) insert—

20

“(ba)   

a person authorised to provide immigration advice or

immigration services by a designated qualifying

regulator,”, and

(b)   

in paragraph (c)(ii) after “(b)” insert “or (ba)”.

      (3)  

After subsection (3) insert—

25

“(3A)   

A person’s entitlement to provide immigration advice or

immigration services by virtue of subsection (2)(ba)—

(a)   

is subject to any limitation on that person’s authorisation

imposed by the regulatory arrangements of the designated

qualifying regulator in question, and

30

(b)   

does not extend to the provision of such advice or services by

the person other than in England and Wales (regardless of

whether the persons to whom they are provided are in

England and Wales or elsewhere).

(3B)   

In subsection (3A) “regulatory arrangements” has the same meaning

35

as in the Legal Services Act 2007 (see section 21 of that Act).”

13    (1)  

Section 86 (designated professional bodies) is amended as follows.

      (2)  

Omit subsections (1)(a), (d) and (e) and (4)(b).

      (3)  

In subsection (5)(a) omit “England and Wales or”.

      (4)  

In subsection (6)—

40

(a)   

omit paragraph (a), and

(b)   

in paragraph (b) for “it” substitute “the order”.

 

 

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 2 — Amendments of the Immigration and Asylum Act 1999 (c. 33)

329

 

      (5)  

In subsection (8) after “that a body” insert “(other than a body in England

and Wales)”.

14         

After section 86 insert—

“86A    

Designated qualifying regulators

(1)   

“Designated qualifying regulator” means a body which is a

5

qualifying regulator and is listed in subsection (2).

(2)   

The listed bodies are—

(a)   

the Law Society;

(b)   

the Institute of Legal Executives;

(c)   

the General Council of the Bar.

10

(3)   

The Secretary of State may by order remove a body from the list in

subsection (2) if the Secretary of State considers that the body has

failed to provide effective regulation of relevant authorised persons

in their provision of immigration advice or immigration services.

(4)   

If a designated qualifying regulator asks the Secretary of State to

15

amend subsection (2) so as to remove its name, the Secretary of State

may by order do so.

(5)   

Where, at a time when a body is listed in subsection (2), the body

ceases to be a qualifying regulator by virtue of paragraph 8(1)(a) of

Schedule 18 to the Legal Services Act 2007 (loss of approved

20

regulator status), the Secretary of State must, by order, remove it

from the list.

(6)   

If the Secretary of State considers that a body which—

(a)   

is a qualifying regulator,

(b)   

is not a designated qualifying regulator, and

25

(c)   

is capable of providing effective regulation of relevant

authorised persons in their provision of immigration advice

or immigration services,

   

ought to be designated, the Secretary of State may, by order, amend

the list in subsection (2) to include the name of that body.

30

(7)   

If the Secretary of State is proposing to act under subsection (3) or (6),

the Secretary of State must, before doing so, consult the

Commissioner.

(8)   

If the Secretary of State is proposing to act under subsection (3), the

Secretary of State must, before doing so, also —

35

(a)   

notify the body concerned of the proposal and give it a

reasonable period within which to make representations, and

(b)   

consider any representations duly made.

(9)   

An order under subsection (3) or (6) requires the approval of the

Lord Chancellor.

40

(10)   

If the Legal Services Board considers that a designated qualifying

regulator is failing to provide effective regulation of relevant

authorised persons in their provision of immigration advice or

immigration services, the Legal Services Board must make a report

to this effect to—

45

 

 

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 2 — Amendments of the Immigration and Asylum Act 1999 (c. 33)

330

 

(a)   

the Secretary of State, and

(b)   

the Lord Chancellor.

(11)   

In this section—

“qualifying regulator” means a body which is a qualifying

regulator for the purposes of this Part of this Act by virtue of

5

Part 1 of Schedule 18 to the Legal Services Act 2007 (approved

regulators approved by the Legal Services Board in relation

to immigration matters);

“relevant authorised persons”, in relation to a designated

qualifying regulator, means persons who are authorised by

10

the designated qualifying regulator to provide immigration

advice or immigration services.”

15    (1)  

Section 90 (orders by disciplinary bodies) is amended as follows.

      (2)  

In subsection (2), for paragraph (a) substitute—

“(a)   

appearing to the Secretary of State to be established for the

15

purpose of hearing disciplinary charges against—

(i)   

members of a designated professional body, or

(ii)   

persons regulated by designated qualifying

regulators; and”.

      (3)  

In subsection (3) after “body” insert “or designated qualifying regulator”.

20

      (4)  

In subsection (5)—

(a)   

after “means” insert “—

“(a)   

”, and

(b)   

after “that body” insert “, or

(b)   

a person who is authorised by the designated

25

qualifying regulator concerned to provide

immigration advice or immigration services.”

16         

In section 166(4) (orders requiring approval by Parliament), after paragraph

(d) insert—

“(da)   

section 86A(3),”.

30

17    (1)  

Schedule 5 (the Immigration Services Commissioner) is amended as follows.

      (2)  

In paragraph 3 (code of standards)—

(a)   

after sub-paragraph (3)(a) insert—

“(aa)   

a person who is authorised by a

designated qualifying regulator to

35

provide immigration advice or

immigration services;”,

(b)   

in sub-paragraph (3)(b) after “paragraph (a)” insert “or (aa)”,

(c)   

after sub-paragraph (6)(a) insert—

“(aa)   

each of the designated qualifying

40

regulators;”, and

(d)   

omit sub-paragraph (6)(b).

      (3)  

In paragraph 4 (extension of scope of the code)—

(a)   

omit sub-paragraph (2)(b),

(b)   

in sub-paragraph (3)(a) omit “England and Wales or”, and

45

(c)   

omit sub-paragraph (4)(a).

 

 

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 3 — Transitional provision

331

 

      (4)  

In paragraph 5 (investigation of complaints)—

(a)   

in sub-paragraph (3), for the words from “but” to the end

substitute—

   

“but not if the complaint is excluded by sub-paragraph

(3A).”,

5

(b)   

after that sub-paragraph insert—

   “(3A)  

A complaint is excluded if—

(a)   

it relates to a person who is excluded from the

application of subsection (1) of section 84 by

subsection (6) of that section, or

10

(b)   

it relates to a person within section 84(2)(ba).”

Part 3

Transitional provision

The transitional period

18    (1)  

In this Part of this Schedule references to “the transitional period” are to the

15

period which—

(a)   

begins with the day appointed for the coming into force of section 13

(entitlement to carry on reserved legal activities), and

(b)   

ends with the day appointed by the Lord Chancellor by order for the

purposes of this paragraph.

20

      (2)  

Different days may be appointed under sub-paragraph (1)(b) for different

purposes.

      (3)  

An order may be made under sub-paragraph (1)(b) only on the

recommendation of the Board.

Barristers etc

25

19    (1)  

During the transitional period, every barrister is deemed to be authorised by

the General Council of the Bar to provide immigration advice and

immigration services.

      (2)  

That authority is exercisable in accordance with, and subject to, the

regulatory arrangements of the General Council of the Bar.

30

      (3)  

A person is not authorised under sub-paragraph (1) unless the person has in

force a certificate issued by the General Council of the Bar authorising the

person to practise as a barrister.

20    (1)  

During the transitional period, every registered European lawyer registered

with the Inns of Court and the General Council of the Bar is deemed to be

35

authorised by the General Council of the Bar to provide immigration advice

and immigration services if the registered European lawyer is entitled to

provide immigration advice and immigration services under his home

professional title by virtue of the European regulations.

      (2)  

That authority is exercisable in accordance with, and subject to, the

40

regulatory arrangements of the General Council of the Bar (as they apply to

the registered European lawyer by virtue of the European regulations).

      (3)  

In this paragraph—

 

 

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 3 — Transitional provision

332

 

“European regulations” means the European Communities (Lawyer’s

Practice) Regulations 2000 (S.I. 2000/1119);

“home professional title” and “registered European lawyer” have the

same meaning as in the European regulations.

Solicitors etc

5

21    (1)  

During the transitional period, each of the following is deemed to be

authorised by the Law Society to provide immigration advice and

immigration services—

(a)   

every qualified solicitor;

(b)   

every registered foreign lawyer (within the meaning of section 89 of

10

the Courts and Legal Services Act 1990 (c. 41));

(c)   

every legal partnership (within the meaning of paragraph 7(4) of

Schedule 5);

(d)   

every body recognised under section 9 of the Administration of

Justice Act 1985 (c. 61).

15

      (2)  

That authority is exercisable in accordance with, and subject to, the

regulatory arrangements of the Law Society.

      (3)  

“Qualified solicitor” means a person who is qualified under section 1 of the

Solicitors Act 1974 (c. 47) to act as a solicitor.

22    (1)  

During the transitional period, every registered European lawyer registered

20

with the Law Society is deemed to be authorised by the Law Society to

provide immigration advice and immigration services if the registered

European lawyer is entitled to provide immigration advice and immigration

services under his home professional title by virtue of the European

regulations.

25

      (2)  

That authority is exercisable in accordance with, and subject to, the

regulatory arrangements of the Law Society (as they apply to the registered

European lawyer by virtue of the European regulations).

      (3)  

In this paragraph—

“European regulations” means the European Communities (Lawyer’s

30

Practice) Regulations 2000 (S.I. 2000/1119);

“home professional title” and “registered European lawyer” have the

same meaning as in the European regulations.

Legal Executives

23    (1)  

During the transitional period, a person who is authorised by the Institute of

35

Legal Executives to practise as a member of the profession of legal

executives is deemed to be authorised by that Institute to provide

immigration advice and immigration services.

      (2)  

That authority is exercisable in accordance with and subject to the regulatory

arrangements of the Institute of Legal Executives.

40

      (3)  

A person is not authorised under sub-paragraph (1) unless the person has in

force a certificate issued by the Institute of Legal Executives authorising the

person to practise as a legal executive.

 

 

 
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