4.1 Qualified individuals

Any individual or organisation that wants to provide immigration advice must register with the OISC.

The Immigration and Asylum Act 1999 s.84(1) states that only a qualified person can provide immigration advice or services. It also defines a qualified person as someone who is (legislation.gov.uk, 1999):

• registered with the OISC
• authorised by a designated professional body to practise as a member of the profession whose members that body regulates
• acting on behalf of, and under the supervision of, anyone registered or authorised (whether under a contract of employment).

Most voluntary and community organisations and most businesses that offer immigration advice or services in the UK need to apply to the OISC for registration. These requirements are beyond the scope of this course, but you should always check that anyone employing you to provide immigration advice is registered to do so.

It is important to understand that anyone providing immigration advice who is not qualified and regulated by the OISC is committing a criminal offence. ‘Providing advice’ occurs when a person gives specific advice on an area of immigration law that relates to another’s circumstances, whether the provider is paid to do so.

Now listen to Audio 1, which explores this topic further.

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Transcript: Audio 1 Who can give immigration advice?

Edwin Parks

Hello, my name is Edwin Parks. I’m a senior lecturer at The Open University, and I have the pleasure today to be with Antonia Randall-Brandwood, who is a senior immigration adviser and with vast experience in representing immigration clients. Antonia: can only solicitors or barristers give immigration advice?

Antonia Randall-Brandwood

No. Solicitors and barristers can give immigration advice in their own capacity, regulated by the bodies that regulate solicitors and barristers. But the OISC is a specific body that regulates immigration advisers – so once you are registered with the OISC, you can give immigration advice.

Edwin Parks

So is that how I become a qualified immigration adviser – just simply registering at the OISC?

Antonia Randall-Brandwood

That’s a part of it. You would also need to have experience and knowledge in immigration law to be able to advise people correctly and pass the exam that you need to pass to become regulated by the OISC.

Edwin Parks

Now we’ve used the term – or the acronym – ‘OISC’. Could you explain who they are?

Antonia Randall-Brandwood

I can. So the OISC, they are an arm’s-length body of the Home Office, and they regulate immigration advisers at three different levels. The OISC is an acronym, and it stands for the Office of Immigration Services Commissioner. People sometimes call it ‘Oisc’, as well as the O-I-S-C.

Their powers are derived from the Immigration Asylum Act 1999. But as well as regulating and checking that advisers aren’t working outside their limits, they also offer advisers support and advice. Solicitors and barristers are both regulated by their own bodies, and they don’t have to be regulated or registered with the OISC to give immigration advice. Most other people, outside a solicitor or barrister, do need to be regulated under the OISC.

Edwin Parks

Antonia, imagine a situation in which someone gives free legal advice, and they don’t benefit in any way from giving that advice. Do they still need to be registered with the OISC?

Antonia Randall-Brandwood

That’s a really good question, Edwin. It’s particular about how you are giving that advice and how you’re holding yourself out. So if you’re holding yourself out as an immigration adviser, and you’re giving advice on a particular area to a particular person, then even if that advice is being given for free, you still need to be registered with the OISC.

Edwin Parks

Do I need any particular experience to apply to become an immigration adviser?

Antonia Randall-Brandwood

There isn’t actually a set list that you have to adhere to, but you must meet the competencies, and you must have all the knowledge and experience required in the syllabus and permitted work. Both of these are online, and you can look through them to see whether or not you think you meet that skill set and that knowledge.

You’re usually going to need some sort of practical experience of casework in a potentially legal capacity, and some immigration training, but it doesn’t have to be work that you’ve been paid for – it can be voluntary work. Some legal experience is also necessary. Again, it doesn’t have to be something specific to immigration – it could be experience in another legal sector.

You will be sitting an exam, so you do need to make sure that you have the required amount of knowledge to pass that exam. The OISC then also assess your examination result with your competencies to see whether or not they think that you are able to provide clear advice.

Edwin Parks

Could you explain, Antonia, how I make an application to register?

Antonia Randall-Brandwood

The first thing that you need to do when you’re going to register with the OISC is set up a limited company, because individuals can’t be registered with the OISC. You then need to look at all the necessary documentation on the OISC website that’s going to be submitted with that application. That includes a business plan, insurance, client care letters, and you need to have a business bank account.

You can then register the organisation, and at the same time register the advisers, with an application form and a competency statement. The OISC will then consider the application. They will then set an exam for the registered advisers, and once that exam has been set, they’ll consider the whole application.

Edwin Parks

Antonia, listeners will have read that there are different levels of advisers at the OISC. Could you explain what they are and why they are necessary?

Antonia Randall-Brandwood

There are three levels of registration, so each for a different adviser. You have Level 1, Level 2 and Level 3. This is to allow a range of advisers, both at the more simple level of cases at Level 1, right the way through to taking cases through to the tribunal.

Level 1 is the most common registration level, and every single adviser who’s regulated by the OISC must pass Level 1. Level 1 is non-complex cases within the Immigration Rules; however, that’s not to say that it’s simple work, or that it’s limited – it’s actually the vast majority of applications.

Level 2 deal with complex cases, such as human rights, or those with a more complicated family arrangement. They can also deal with asylum and bail within the Home Office. Level 3 is generally court work, and they can deal with appeals being taken to the tribunal and bail applications in front of the tribunal. A Level 3 adviser will need to be able to deal with advocacy, and also basic court work.

Edwin Parks

Thank you, Antonia, that’s very helpful. So let’s focus on Level 1. How can I find out what type of work is allowed on Level 1?

Antonia Randall-Brandwood

There are really two places, Edwin, where you can look at the type of work you’re allowed to do at Level 1. There’s the syllabus, which sets out all of the information that you need to know to be registered at Level 1; and there’s also the permitted work on the Home Office website. And I would really strongly advise you to look at the work you are not allowed to do: at Level 1, there is an awful lot of work you can do, but you just need to be aware of the work that you aren’t permitted to do.

Edwin Parks

Looking at the work you are allowed to do, what’s the most common type of application you will make at Level 1?

Antonia Randall-Brandwood

The most common application that you come across at Level 1 is a spouse visa application. This is when a British or settled person is in the United Kingdom, and they want to bring their partner over to live with them here. You may also come across a skilled worker visa, where you have someone who’s coming to work in the United Kingdom.

Visit visas are usually dealt with by the clients on their own, although you may have someone come to you when they’ve had a visit visa refused. Most student visas are also dealt with in-house by universities.

Edwin Parks

I want to turn now to the work that you should never do at Level 1. Could you just go over the types of work you should never do at Level 1 that come up in immigration?

Antonia Randall-Brandwood

Level 1 advisers don’t deal with asylum work. They also don’t deal with people who have overstayed their visa and are in the UK without leave to remain. They also don’t deal with appeals work, and they need to hand that on to a higher-level adviser.

Finally, it’s complex casework: so cases that involve a human rights element, or you think that they don’t fit within the Immigration Rules – make sure that you hand those on to a next-level caseworker.

Edwin Parks

So, Antonia, in complex casework, are there any other sorts of things that might indicate that the case you’re looking at is becoming complex?

Antonia Randall-Brandwood

It’s a really good question, Edwin. I think a complicated immigration history is something that should set off your alarm bells, and make you think, ‘Do I need to send this on to a higher-level adviser?’ Criminality is also quite often going to mean that they need to be passed on to that next-level adviser. If they currently have no leave to remain in the United Kingdom, that’s going to be evidence of a complicated case. And, again, if there’s any issues outside the Immigration Rules – if you can’t find the answer in the Immigration Rules – that’s going to be a complicated case.

Edwin Parks

So without mentioning names, can you just give us an example of a situation you’ve dealt with that had a complex immigration history?

Antonia Randall-Brandwood

A particular example I can think of is if someone has entered the UK legally on a visit visa, and then whilst they’re in the UK, their leave has expired. Perhaps then, they’ve had a relationship with somebody and had a child, and they now want to make an application to the Home Office to regularise their stay. That would be a complicated case, with some immigration history that’s quite questionable.

Edwin Parks

Can you think of any issue which is not covered by the Immigration Rules that you might come across as an immigration adviser?

Antonia Randall-Brandwood

So, Edwin, that’s quite a big question, because there are an awful lot of situations that fall outside the Immigration Rules. The Immigration Rules are a set code of standards that we’re trying to put all different people into, and often we fall outside them.

But an example that I could think of is if somebody’s been here without leave for perhaps seven years, and their family is all here, but for some reason they have managed to fall through the net. In those circumstances, there isn’t really a route within the Immigration Rules that would cover their situation, and so you’d hope that a higher-level adviser would be able to gather all the information, and put forward a case to the Home Office.

Edwin Parks

Thank you, Antonia. Just a last round-up question – or not so much a round-up question, it’s just something I’m curious about. How does OISC know you’re an immigration adviser?

Antonia Randall-Brandwood

So the OISC have a list of those who are registered with them and regulated by them. They keep that list of registered advisers to make sure that they are keeping an eye on all of those advisers. If you’re not on that list, you’re not registered by the OISC.

They do also carry out audits of those people who are on their lists, and make sure that they’re running their companies efficiently and effectively within the Code of Standards the OISC sets out. They do actually prosecute advisers who are working outside of their registration.

End transcript: Audio 1 Who can give immigration advice?

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Audio 1 Who can give immigration advice?