Statutory guidance

OISC Guidance on Competence 2021 - Introduction

Updated 1 July 2021

1. Introduction

The Immigration Services Commissioner has a duty to ensure that those who provide immigration advice or immigration services are fit and competent to do so. This Guidance on Competence (Guidance) sets out the standards advisers must meet to be considered competent. This is the seventh edition of the Guidance. The Guidance comes into force on 1 July 2021.

This Guidance must be read alongside the Commissioner’s Code of Standards (Code), which sets out the standards that OISC advisers and their organisations must meet.

This Guidance contains lists of the type of advice that can be given at each Advice Level. These lists are not exhaustive.

2. What do we mean by competence?

Advisers must demonstrate a sufficient level of skills, knowledge and aptitudes that shows that they are able to provide good quality advice and services. The detailed competence requirements are contained in the sections in later parts.

The OISC assesses competence in a variety of ways and at different times.

Application process - We assess competence initially during the application process. Applicants are required to submit a Competence Statement. This document requires applicants to provide information that demonstrates how they meet the competence requirements. They may do this on the Statement by, for example, indicating the number of years’ experience they have, the professional development they have undertaken and what resources they have in order to keep updated on changes in law and procedures. Information on the Competence Statement is available on the OISC website.

In addition, applicants will normally be required to take a formal written competence assessment in order to demonstrate their level of knowledge and how to apply this to a client’s particular situation. Applicants may also be subject to a pre-registration audit. At such an audit the OISC will consider the suitability of the organisation’s policies and processes but may also discuss and review competence issues.

Post registration audit— An audit provides an opportunity to consider the fitness and competence of the organisation’s work. During, and as part of an organisation’s audit, OISC staff will examine client files to assess adviser competence. The OISC can call upon expert immigration consultants if necessary in order to look into an adviser’s competence in greater depth. Where an adviser cannot demonstrate their competence through work reviewed at audit, the OISC may take regulatory action which could include requiring the adviser to take another competence assessment.

Continuing Professional Development (CPD) – All registered advisers are required to comply with the Commissioner’s CPD scheme. Organisations should consider the CPD requirements of each registered adviser against the competence requirements outlined within this document relevant to their Level and Categories of authorisation. Organisations should plan and record their advisers’ CPD activities accordingly.

Complaints - In investigating complaints made about registered organisations, OISC staff will consider whether the adviser complied with The Code of Standards, to include whether competent advice was given and appropriate action taken by an adviser on the client’s matter.

3. Are you providing immigration advice or immigration services?

The definitions of ‘immigration advice’ and ‘immigration services’ are set out in section 82 of the Immigration and Asylum Act 1999 (as amended).

Immigration advice:

• relates to an individual; and

• is given in connection with a relevant immigration matter.

Immigration services means making representations on behalf of a particular individual:

• in civil proceedings before a court, tribunal or immigration judge in the United Kingdom in correspondence with a Minister of the Crown or a government department.

If your work is restricted only to signposting or the provision of general information, you do not need to apply to the OISC for registration. Examples of this are:

• directing individuals in need of immigration advice to a regulated adviser; or

• providing general information or leaflets on the immigration and asylum systems.

Please contact us if you have any questions about whether you are required to be regulated by the OISC.

McKenzie Friend

OISC regulated advisers, who by definition provide immigration advice or services in the course of business, must not seek to appear before any tribunal or court in relation to a person’s immigration matter, as a McKenzie Friend.

4. OISC Advice Levels

The OISC has divided immigration advice and services into three levels depending on the type and complexity of the work involved. The competence requirements increase with the intricacy of the work. A summary of the work permitted at each OISC level is given in later parts. Details of the types of work permitted at each level begins in a later section.

The three OISC levels of immigration advice and services are as follows:

• Level 1 – Advice and Assistance

• Level 2 – Casework

• Level 3 – Advocacy and Representation

4.1 Categories of Work within the levels

There are three categories of work, ‘Immigration’, ‘Asylum and Protection’ and ‘Judicial Review Case Management’. These include the following:

4.2 Immigration:

• Applications for, or for the variation of, entry clearance or leave to enter or remain in the UK

• Unlawful entry into the UK

• Nationality and citizenship under UK law

4.3 Asylum and Protection:

• Applications for Asylum and Humanitarian Protection

• Family Reunion applications

4.4 Judicial Review Case Management (JRCM):

Use of the Bar Standards Board’s (BSB) Licensed Access Scheme to appoint barristers who can undertake both the litigation and advocacy elements of a Judicial Review application on behalf of their clients.

Only Level 3 advisers are eligible to apply for approval in this category.

While advisers do not need to be competent in all categories at their particular Level, all Level 2 and 3 advisers must have a sufficient awareness of all remedies that may be available to their client regardless of the areas of their competence at Level 2 or 3. This means, for example, that a Points Based System (PBS) specialist working at Level 2 or 3 must be aware of remedies that fall within the categories of both Immigration, and Asylum and Protection at Level 1.

Advisers regulated to provide advice and services at a particular Level are not required to do everything that can be done at that Level. For example, while a Level 3 adviser can appear at appeals before Immigration Judges they do not have to do this to be an authorised Level 3 adviser.

Authorised advisers are reminded of Code 3, which states:

‘Organisations and advisers must only act according to, and within, their authorisation’.

Thus, for example, an adviser authorised at Level 2 in the category of ‘Immigration’ may carry out bail and detention work for immigration cases. However, they cannot do so for bail and detention work in ‘Asylum and Protection’ cases. Similarly, an adviser authorised at Level 3 in ‘Immigration’ who is also authorised to do JRCM work, can only do this work in relation to ‘Immigration’ cases. They cannot do JRCM work in relation to ‘Asylum and Protection’ cases, unless they are also authorised in ‘Asylum and Protection’ at Level 3.

5. Working under supervision

Code 9 sets out the only basis on which an adviser may operate beyond his or her granted Level or Category of authorisation. This Code states ‘An organisation is permitted to have persons operating above their authorised Level or in Categories for which they are not authorised, but within the Level and Categories granted to the organisation, if the Commissioner has given written authorisation of the organisation’s supervision arrangements’.

Details of the processes for seeking such authorisation can be found on the OISC website.

6. Regulated advisers and third parties

The OISC recognises that advisers may need to use the services of third parties to represent their clients and their interests properly. Where the instructed adviser needs to obtain additional advice, opinions and other professional services, they will need to do so in accordance with Codes 34-39. There are three main areas where an adviser may consider involving third parties. These are in using:

• Experts and Interpreters;

• Barristers or members of the Faculty of Advocates;

• Other OISC registered advisers or a firm of solicitors.

6.1 Experts and Interpreters

A client’s case may require obtaining academic, medical or other expert opinion or advice, or the skills of an interpreter. If asked to act, these third parties do so on behalf of the adviser as their agent. The adviser must instruct the expert or interpreter directly, and will continue to have responsibility for the conduct of the matter throughout.

6.2 Barristers or members of the Faculty of Advocates

Level 1 OISC advisers must not seek to instruct barristers or members of the Faculty of Advocates. Only OISC regulated advisers at Levels 2 and 3 can instruct barristers in England and Wales or members of the Faculty of Advocates in Scotland to pursue their client’s interests. What these advisers can specifically instruct a barrister or member of the Faculty of Advocates to do depends on their authorised advice Level. Such instructions must be given through the BSB’s Licensed Access Scheme or OISC advisers may instruct Advocates in Scotland under its Direct Access Scheme. There are no similar arrangements with barristers in Northern Ireland.

Level 2 advisers may seek advice or an opinion from a barrister or a member of the Faculty of Advocates on the merits of their client’s case and how best to pursue the matter. They cannot, however, appoint a barrister or member of the Faculty of Advocates to act as their client’s advocate before a tribunal or other court.

Level 3 advisers may instruct a barrister or a member of the Faculty of Advocates in the same way that a Level 2 adviser can, and, in addition, may also instruct them to appear as their client’s advocate before Immigration Judges. To do this the Level 3 adviser must hold a licence granted to them by the BSB or instruct advocates through the Direct Access Scheme in Scotland. In all matters including instructing a barrister or member of the Faculty of Advocates to appear before the tribunal, the OISC regulated adviser continues to have control of the matter and responsibility for its conduct.

Only OISC advisers authorised in the category Judicial Review Case Management, may instruct a barrister to represent their client in Judicial Review proceedings. As OISC advisers are not permitted to undertake either litigation or advocacy in Judicial Review matters (due to restricted rights of audience under the Legal Services Act 2007) they must instruct only barristers who are authorised by the BSB for the conduct of both litigation and advocacy in Judicial Review matters. Members of the Faculty of Advocates in Scotland cannot be instructed on such matters through the Direct Access Scheme.

6.3 Other OISC Advisers or a firm of solicitors

OISC regulated advisers may outsource aspects of their client’s case to other suitably authorised advisers or a firm of solicitors while retaining responsibility for the matter. In doing so they must however ensure they act in compliance with Codes 38 and 39.