Correspondence

Mckenzie Friends: OISC consultation response

Published 7 June 2016

This correspondence was withdrawn on 12 February 2024

Content no longer available.

The Office of the Immigration Services Commissioner (the OISC) would like to highlight the problems associated with McKenzie Friends advising on immigration matters. Although this relates principally to the tribunal system, these issues have ramifications for the courts as a whole. The OISC’s views may therefore be of assistance.

1. Background

Immigration and asylum advice or services are regulated by the (amended) Immigration and Asylum Act 1999 (“the 1999 Act”). This distinguishes immigration law from other areas where McKenzie Friends operate, such as family law.

In order to protect vulnerable individuals in the immigration system, Parliament requires anyone wishing to provide immigration advice or services (who is not already regulated as a barrister or solicitor) to be registered with the OISC.

In order to be registered, they must satisfy the Immigration Services Commissioner that they are fit and competent to provide such advice or services.

Organisations and individuals can be registered at levels 1, 2 or 3 once they have demonstrated their fitness and competence to practise. They are registered to work in the categories of immigration, asylum or both.

The level determines the complexity of the work an adviser is permitted to carry out. Level 1 advisers can provide basic one-off advice that is within the immigration rules. Level 2 advisers can carry out more complex matters but are not permitted to appeal Home Office decisions. Only level 3 advisers are permitted to appear in the First-tier Tribunal or the Upper Tribunal.

No OISC registered adviser is permitted to represent clients in judicial reviews and all OISC registered immigration advisers must adhere to the Commissioner’s code of standards.

Under section 91 of the 1999 Act, it is a criminal offence to provide unregulated immigration advice or services. Under section 92B of the 1999 Act it is also an offence to advertise such services. The OISC is responsible for prosecuting those who do so.

2. Mckenzie Friends in the Immigration and Asylum Chamber

The OISC specifically prohibits the advisers it regulates from acting as McKenzie Friends, as is made clear in the OISC’s guidance on competence (which sets out what regulated advisers can and cannot do at the three levels of authorisation).

This prevents a level 1 or level 2 adviser from circumventing the limits of their registration by appearing at a tribunal as a ‘McKenzie Friend’.

The OISC is very concerned that individuals are avoiding or may avoid regulation by purportedly acting as McKenzie Friends, whilst in fact providing immigration advice or services.

In several prosecutions, defendants have claimed that they were acting as McKenzie Friends, when they have clearly been providing immigration services as defined by the 1999 Act. This has not yet been a successful defence, but it implies that judges are allowing McKenzie Friends to represent clients in some cases.

In several cases, the involvement of a McKenzie Friend in an immigration or asylum matter has been concealed by an Anonymity Order. This prevents the OISC from contacting a Litigant in Person (LiP) in order to determine whether there may have been a criminal offence. It has not yet been possible to have any Anonymity Orders lifted.

The OISC is concerned that those purporting to assist vulnerable immigration clients by claiming to be McKenzie Friends are effectively frustrating the will of Parliament by avoiding the legislative requirement to be regulated.

The OISC’s assessment of the fitness and competence of those it authorises to operate, as well as the robust code of standards that all advisers must adhere to, provides clients, tribunals and courts with the assurance that such advisers satisfy Parliament’s intentions.

3. Consultation questions

Question 3: Do you agree that the present Practice Guidance should be replaced with rules of court?

Any rules or guidance should make clear the strict requirements in respect of those wishing to act in immigration and asylum cases.

The OISC should be notified whenever the Immigration and Asylum Chamber has granted a right of audience or a right to conduct litigation. (In other courts, it may be appropriate to notify the Solicitor’s Regulation Authority or the Bar Standards Board.)

Question 5: Do you agree that a standard form notice, signed and verified by both the LiP and McKenzie Friend, should be used to ensure that sufficient information is given to the court regarding a McKenzie Friend?

The OISC agrees. There should be a clear record of all McKenzie Friends appearing in the Immigration and Asylum Chamber. This will be necessary for the OISC to ensure that none of its registered advisers is acting as a McKenzie Friend and to determine which unregistered advisers are holding themselves out as McKenzie Friends.

The OISC appreciates that this may be complicated by Anonymity Orders in Immigration and Asylum appeals. However, these should not prevent regulators such as the OISC from knowing who has appeared as a McKenzie Friend before the tribunal.

Question 6: Do you agree that such a notice should contain a Code of Conduct for McKenzie Friends, which the McKenzie Friend should verify that they understand and agree to abide by?

Any code of conduct must make sure not to contradict Parliament’s intention that the regulation of immigration advice (other than by solicitors or barristers) is the OISC’s responsibility.

It should be clear that McKenzie Friends are not permitted to provide any immigration advice or services, as this is prohibited by the 1999 Act. The Act outlines what exactly would constitute such advice or services. The OISC is willing to provide further guidance if necessary.

Question 9: Do you agree that codified rules should contain a prohibition on fee-recovery, either by way of disbursement or other form of remuneration?

The requirement for immigration advisers to be regulated by the OISC is irrespective of whether a person charges a fee for their services or not.