Division B: Immigration Practitioners
The following guidance constitutes an amplification of the standard of practice that the Society considers essential for the compliance with the rules of professional conduct when undertaking immigration, nationality and asylum work and contains best practice advice. The guidance may be taken into account by the Society or by others in connection with the investigation and determination of complaints (including those made by third parties) alleging inadequate professional service and/or unsatisfactory professional conduct or professional misconduct arising from immigration, nationality and asylum work.
The following guidance applies to solicitors and registered European lawyers (RELs) and to registered foreign lawyers (RFLs) when in practice with solicitors/RELs, and to anyone, including non-solicitors, supervised by solicitors or RELs.
1. When engaged in the conduct of activities as advisers and representatives in the field of immigration, nationality and asylum and practice related matters you are expected to maintain the standards of the profession
(a) You should give
sound advice having familiarised yourself with the relevant law,
the immigration rules, and details of any published concessions
outside the rules.
(b) You should at all times show sensitivity to the particularly vulnerable position of those seeking immigration advice. You should pay due regard to the related difficulties faced by such a client, and should ensure that the client fully understands the implications of any decision or proposed course of action, making full use of an interpreter for translation purposes only as necessary.
(c) You must not deceive or deliberately mislead the immigration authorities or the courts or knowingly allow yourself to be used in any such way.
(d) You should consider whether, by virtue of your knowledge, skills and experience, you are competent to act in the particular case, and must not take on cases outside your area of competence or beyond your caseload capacity.
(e) You must maintain proper records of your professional dealings, including records of the matters set out below.
2. You must give advance information about fees and outlays.
3. The question of whether the client is eligible for advice and assistance under the "pink form scheme" should be explored and discussed with the client at the outset. If eligible for advice and assistance the client should be advised accordingly. If eligible for advice and assistance but the client does not wish to obtain advice and assistance, you should ensure that the client signs a written statement to the effect that the client understands the client's entitlement to legal advice and assistance but does not wish to apply for it. In that event or where the client is ineligible for legal advice and assistance and a fee is due to be charged, the best information possible about the likely overall costs should be supplied to the client, in writing, with a description of the work to be carried out to a specified and the method of calculation of such fee. Where the fee is likely to exceed the estimate a written revision of the estimate should be given.
4. Where a charge is to be made to a client for the provision of legal services, a written estimate of the costs should be supplied to the client at the outset of the matter to which the charge relates, with a description of the work to be done to a specified stage and the method of calculation of such fee (unless the fee is fixed) and the likely overall cost including outlays and VAT. Where the fee is likely to exceed the estimate given or requires variation, a written revision of the estimate and mode of calculation should be given as soon as it becomes apparent that the original estimate is likely to be exceeded or requires revision, and in any event before it is in fact exceeded.
5. In the conduct of appeals you must take all reasonable steps to comply with the rules of procedure and with practice notes both to protect the interest of the client and to meet obligations to the court. "Court" includes tribunal.
6. You must not withdraw from acting except for good reason and upon reasonable notice, recording the reasons for withdrawing from acting in the file. Where, for good reason, whether the client has been granted advice and assistance by the Scottish Legal Aid Board or otherwise, you decide to withdraw from acting for the client, it must be with as much notice to the client as possible in all the circumstances. Issues of merits, funding and arrangements to provide advocacy must be addressed as soon as reasonably practicable so as to avoid damage either to the client's interests or to the effective operation of the court. Such advice as may be appropriate should be given to the client for alternative representation. Notice of withdrawal from representation must be promptly given to the court in such manner as to minimise prejudice to the client.
7. If you are without funds to cover a hearing it is unacceptable for you to withdraw from acting so close to the date of the hearing as to prevent the client having any opportunity of seeking to find alternative representation, or to hinder the court in adequately disposing of matters pending.
Lien (privately funded)
8. If the client withdraws instructions just before a hearing date and a successor solicitor is appointed, the Society recommends the papers be released to the successor solicitor, subject to a satisfactory undertaking as to costs being given in lieu of the exercise of a lien.
Standard of work
9. You should not normally agree to represent a client where adequate preparation of a case is not possible, but in cases of urgency you may agree to act or continue to act for the purpose of applying for an adjournment. Where an adjournment is refused, you must consider whether continuing to act compromises effective standards of representation. If so, you should then not participate further in the hearing.
10. You must ensure that all staff are properly supervised. There is a general duty to ensure that a practice is properly supervised, managed, and compliant with any quality assurance criteria in force. Every office must have at least one solicitor or REL qualified to supervise with that office being that solicitor's or REL's usual place of work. When the solicitor or REL qualified to supervise at an office is away for any reason, suitable arrangements must be in place to ensure that duties to clients and others are met.
11. Solicitors and RELs must be confident that non-solicitor staff providing immigration, nationality or asylum advice to clients are of good standing and repute and have proper knowledge and experience of the work for which they are being recruited. Non-solicitor staff must also be properly supervised under a supervising solicitor's or REL's direction.
12. Solicitors and RELs must exercise great care in the recruitment of non-solicitor staff whom it is intended will undertake immigration work, so as to avoid employing unsuitable staff. Before employing non-solicitor staff thorough enquiries should be made as a matter of course about the prospective employee's background, including whether the prospective employee has been the subject of any disciplinary charge upheld by the First-Tier Tribunal (Immigration Services) ; and references should be sought.
13. Non-solicitor staff include paralegals; legal executives; clerks from time to time working away from the office, for example attending with clients at Home Office interviews, attending clients at detention centres or at court; persons working out of solicitors' offices (even if only in the office for a few hours each week); and any person paid by a solicitor or REL to undertake immigration work or where there is any arrangement, however vague, between a practice unit and a non-solicitor, for the purposes of gain. Even if it could be argued that there is not strictly an employer/employee relationship, for example if a person is an independent self-employed contractor working in the name of the practice unit, that person is the responsibility of the manager(s) of the practice unit when engaged to carry out work on behalf of the practice unit and proper supervision must be exercised. The term "non-solicitor staff" should not be taken to include RELs, RFLs, members of the Faculty of Advocates or trainee solicitors under a training contract registered with the Law Society of Scotland.
14. When you are instructing firms of solicitors in another part of the United Kingdom you are not responsible for supervision of the staff of such other firm or any person instructed by such other firm to carry out any part of such instructions. Paragraphs 10-13 of this guidance do not apply when a solicitor in another part of the United Kingdom is instructed.
15. Persons qualified to provide immigration advice or immigration services under Part V of the Immigration and Asylum Act 1999 include those authorised to practise as solicitors in Scotland by the Law Society of Scotland or those working under the supervision of such persons. The Society may treat failure to supervise properly as unsatisfactory professional conduct or professional misconduct. In considering any complaint received by the Office of the Immigration Services Commissioner in connection with an alleged failure of a solicitor or REL to supervise properly, the Commissioner may also apply this guidance.
Interrelation between Guidance and other Practice Rules etc
16. Solicitors and others engaged in immigration, nationality and asylum work remain subject to all practice rules, codes of conduct and any other professional or regulatory rules which may apply to them in any capacity and to and any contractual terms. In particular, solicitors and others should have regard to their obligation to communicate effectively with their client in terms of Rule B1.9 (Standards of Conduct - Effective Communication). In the context of the provision of immigration advice or immigration services this may well include an obligation to advise the client periodically that information is still awaited from the relevant authorities. They should also note the terms of Rule B1.14.2 (Standards of Conduct - Relations between regulated persons) which prohibits communication with a person known or believed to be the client of another regulated person save in certain limited circumstances. They should take reasonable steps to satisfy themselves that any person approaching them for immigration, nationality or asylum advice or services is not already represented by another solicitor, REL or RFL before accepting instructions from such person.