Statutory guidance

Guidance on Competence 2021 - Level 2 - Casework

Updated 1 July 2021

1. Work permitted at Level 2

At this Level the adviser is authorised to handle more complex applications within the Immigration Rules as well as applications outside the Rules and applications under UKVI’s concessionary or discretionary policies. Advisers may make detailed written representations to UKVI which require legal argument and request UKVI to exercise discretion in their decision making. They may advise clients who have entered or remained in the UK illegally or in breach of their conditions of entry or leave to remain.

A Level 2 adviser can submit a section 120 Notice and lodge appeals on initial grounds, but must then refer the case to a Level 3 adviser or other authorised person. They cannot conduct cases requiring specialist casework e.g. challenging existing case law and third country asylum appeals.

Level 2 advisers can undertake all of the work that can be done by a Level 1 adviser operating in the same category, and, in addition, do the following if authorised in the categories of Asylum and Protection and/or Immigration:

1.1 Asylum and Protection

• applications to UKVI, including asylum and human rights applications and concessionary or discretionary applications
• fresh claims on human rights grounds
• Case Resolution/Legacy Cases and Active Review
• applications for Humanitarian Protection
• representing clients in correspondence with UKVI and at UKVI interviews
• representations to UKVI in support of cases
• drafting client witness statements, including asylum statements
• submitting section 120 Notices
• lodging notices of appeal and statements of additional grounds
• applications to the Secretary of State for bail
• Family reunion applications
• Settlement (protection route) applications
• instructing a barrister or member of the Faculty of Advocates for advice and to advise on drafting appropriate grounds of appeal (where permitted through the BSB Licensed Access Scheme or the Faculty of Advocates Direct Access Scheme).

1.2 Immigration

• applications to UKVI, including human rights applications and concessionary or discretionary application
• applications for Humanitarian Protection
• representing clients in correspondence with UKVI and at UKVI interviews
• representations to UKVI in support of cases, including cases where the qualifying criteria may be open to interpretation
• complex applications under Appendix EU, for example applications by person without valid leave at the time of application, late applications where grounds are deemed to be above level 1 (see OISC Guidance note on EUSS Applications), applications made by persons with retained and derivative rights and Surinder Singh applications
• drafting client witness statements
• submitting section 120 Notices
• lodging notices of appeal and statements of additional grounds
• applications to the Secretary of State for bail
• instructing a barrister or a member of the Faculty of Advocates for advice and to advise on drafting appropriate grounds of appeal (where permitted through the BSB Licensed Access Scheme or the Faculty of Advocates Direct Access Scheme).

2. Work not permitted at Level 2

Level 2 advisers authorised in either category cannot undertake the following work:

• substantive appeals work including paper appeals work and making representations to, or appearing before, courts or tribunals
• applications before the First-tier Tribunal for bail
• applications for Judicial Review or any form of representation related to Judicial Review, including issuing a pre-action protocol letter.

2.1 Competence requirements

Advisers at this Level, in addition to the competences required at Level 1 must demonstrate the following:

Knowledge

Advisers at Level 2 must be competent in all areas of work permitted at Level 1 in the category in which they are authorised. In addition, they must have:

1.Detailed knowledge of immigration and nationality law, including:

• grounds for applications and Fresh Claims
• UKVI concessionary policies
• grounds for lodging appeals including human rights grounds
• procedures for human rights applications, e.g. section 120 Notices
• the immigration rules on general refusal and automatic deportation
• administrative removal, removal directions and deportation orders
• major offences under immigration legislation
• the basis for exclusion of a person from the Refugee convention or Humanitarian Protection

2.A detailed knowledge of relevant rights of appeal, time limits and procedures up to, and including, the lodging of an appeal, and an awareness of relevant rights of appeal, time limits and procedures at the later stages of the appeal process.

3.A working knowledge of relevant case law and precedents, and how to access and use them effectively when making representations on a client’s behalf.

4.A detailed knowledge of the types of evidence needed to support appeals and applications outside the Immigration Rules, how to obtain such evidence and the relative weight to be attached to different types of evidence.

5.An awareness of further remedies such as Judicial Review.

6.A detailed knowledge of the European Convention on Human Rights, the Human Rights Act 1998 and other relevant law such as Section 55 of the Borders, Citizenship and Immigration Act 2009.

7.Where an adviser is working on asylum cases, a detailed knowledge of asylum law and procedures, including the 1951 Refugee Convention, its 1967 Protocol and the UNHCR Handbook for determining refugee status.

8.Where an adviser is working on asylum cases, a detailed knowledge of ‘safe third country’ procedures in assessing asylum applications.

9.Where an adviser is working on asylum cases an awareness of permission to work, the availability of welfare support and specific provisions for the processing of asylum claims made by vulnerable people including accompanied and unaccompanied children, mentally incapacitated individuals and victims of trafficking.

10.Where an adviser is working on bail and detention cases, detailed knowledge of the powers of the immigration authorities to grant bail, the procedures for obtaining bail and UKVI’s practice in the 18 consideration of cases, including an awareness of the factors that must be taken into account when detaining an individual for immigration reasons to include the adults at risk guidance published by the Home Office.

11 A clear understanding of the limits of their knowledge and competence, and an understanding and sensitivity as to when a client’s case has to be referred.

Skills and Aptitudes

1.Interviewing and advising

Sufficient verbal, interpersonal and written communication skills to be able to:

• ask relevant questions, employing different techniques to access necessary information
• obtain clear, detailed instructions, statements and case histories
• deal sensitively with vulnerable and/or traumatised clients and be aware of cultural, gender, sexuality and disability issues that may arise in some cases
• give clear, detailed advice based on relevant laws and policies
• explain complex legislation and policies in simple, clear language
• make clear, pertinent and effective oral and written representations to UKVI and other agencies on a client’s behalf.

2.Drafting

The ability to:

• make clear, pertinent and effective written representations in English on behalf of clients, including drafting grounds of appeal
• draft clear, detailed, structured and effective statements in English on behalf of clients
• produce any other necessary documents in English, which are comprehensive and readily comprehensible.

3.Analytical and advocacy skills

The ability to:

• identify the primary and secondary issues presented in a client’s case and the applicable laws or policies
• adequately assess the merits of cases presented19
• make clear, cogent oral and written representations in support of cases
• identify and use the most appropriate sources of up-to-date information including case law and other specialised subjects in support of cases
• identify the salient points in an argument and respond to them effectively
• identify the evidence required to support a case and to evaluate the relative weight of the evidence
• represent a client effectively at UKVI interviews
• identify where referral to other professionals may be appropriate and to instruct relevant experts
• where applicable, obtain and effectively challenge reasons for detention, using human rights legislation, where appropriate.

4.Record-keeping and file management

The ability to:

• maintain clear, accurate records of UKVI interviews and legal proceedings
• maintain clear, comprehensive and well organised case files and an organised and accessible file management system
• maintain clear, accurate and comprehensive records of contacts with the client or third parties and of other relevant matters.