Guidance

OISC regulation and solicitors

Published 30 August 2016

Section 84 (2) of the Immigration and Asylum Act 1999 (IAA 1999) allows persons to provide immigration advice and services without being regulated by the OISC if they are authorised to practise by a designated qualifying regulator.

This includes solicitors regulated by the Solicitors Regulation Authority (SRA), as the SRA derives its regulatory authority from the Law Society, a designated qualifying regulator.

1. Solicitors that do not require OISC regulation

Where a solicitor holds a current practising certificate and is working in a traditional law firm or an SRA regulated Alternative Business Structure (ABS), both the individual solicitor and the organisation are regulated by the SRA.

In this case neither the organisation, nor the individual solicitor or any non-solicitor advisers who are supervised by the solicitor (whether or not under a contract of employment), need apply to the OISC for regulation.

2. Solicitors that may require OISC regulation

2.1 Solicitors who work in organisations which do not meet the SRA Practice Framework Rules

Fee charging organisations and charities or other non-commercial advice services which do not meet the SRA Practice Framework Rules (4.16 & 4.17), may employ in house solicitors who can provide legal advice within the organisation without any requirement for the individual to be authorised by the OISC.

However, they cannot provide immigration advice and services to the public as solicitors, as this is beyond the scope of their regulation by the SRA. SRA Practice Framework Rules prevent solicitors delivering services to the public in that capacity unless working in an SRA authorised body subject to certain exemptions including rule 4.16.

If they wish to provide immigration advice and services to the public they must therefore make an application to the OISC to be authorised as part of an OISC registered organisation. If approved, they will be acting as an OISC registered adviser rather than as a solicitor.

This does not prevent a solicitor maintaining their practising certificate as they may work elsewhere in that capacity.

For example, they may work for an SRA regulated legal firm from Monday to Friday but volunteer at the weekend to provide advice for a small non fee-charging OISC registered organisation as an OISC adviser.

2.2 Solicitors who work in law centres and organisations which meet the SRA Practice Framework Rules

Solicitors working in law centres are regulated by the SRA as individuals. They do not need to apply to the OISC for registration. However, the law centre itself will need to be regulated as an entity and this may be by the OISC or the SRA (if the law centre chooses to become an ABS). This is the case even where all advisers at the law centre are SRA regulated solicitors.

Some charities and other non-commercial advice services (which meet SRA Practice Framework Rules) may be in a similar situation. They may have solicitors advising the public on immigration matters, regulated by the SRA as individuals. These organisations also need to have the entity regulated by either the OISC or by the SRA (as an ABS), irrespective of whether all advice providers are solicitors.

Where the law centre wants to have immigration advice and services provided by volunteers or employees who are not solicitors individually regulated by the SRA, (or as authorised by another designated qualifying regulator), then the individuals must apply for OISC registration.

This is because practising solicitors working in a law centre, while regulated by the SRA for the purposes of s. 84 (2) of IAA 1999 as individuals, are not permitted to supervise non-qualified individuals (whether or not under a contract of employment) in such an organisation.

Any work undertaken by the non-solicitors is not being conducted on behalf of the solicitor but on behalf of the law centre. This is the case not only for law centres but other charitable organisations and non-commercial advice services which have practising solicitors regulated by the SRA.

3. Applying for OISC registration

The OISC provides guidance on how to apply for registration.

Law centres, charities and other non-commercial advice services which meet the SRA Practice Framework Rules will need to apply to the OISC for registration of the organisation, unless it is an SRA regulated ABS.

The application will need to provide details of all those employed within the organisation to give immigration advice and services. However only those non-solicitor (or as authorised by another designated qualifying regulator) advice staff will need to apply to be OISC registered and must submit competence statements and declarations.

This may mean that an organisation staffed entirely by immigration advisers who are solicitors, may apply for OISC registration with no named applicant advisers. In such cases, the primary contact listed for the application may be an applicant adviser or a solicitor.

3.1 Level of registration

Normally under the OISC scheme the level of registration of the organisation is dependent upon and equal to the highest level of adviser registration at that organisation.

In the case of law centres, charities and other non-commercial advice services which meet the SRA Practice Framework Rules and that have practising solicitors providing immigration advice and services, the level awarded to the organisation as an entity will be level 3.

This is irrespective of the level of the non-solicitors. Solicitors practising in such a setting are not restricted in the work they do by the fact that the OISC regulates the organisation, and they may operate beyond OISC level 3 defined work as they would in an SRA regulated organisation.

3.2 Management

In these organisations solicitors may undertake normal line management or oversight responsibilities for non-solicitors and vice versa. Organisations are free to set up whatever reasonable management structures they wish to ensure the provision of quality assured immigration advice and services.

3.3 Training

Where such an organisation wishes to apply to the OISC to be authorised to train or instruct a particular member of staff for the purpose of preparing them to apply to become a registered OISC adviser, or raise an already registered adviser’s level, there are no restrictions preventing the supervisor in such an application being either a solicitor or non-solicitor adviser.

The OISC will consider such an application based on the relevant experience of the supervisor in the work of immigration law and practice.