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Friday, 17 December 2010

The good, the bad, and the ugly of British immigration law

The Good, The Bad And The UglyImage by Kaptain Kobold via Flickr
By Howard Cheng

The Sunday Telegraph published an article on 6 December 2010 criticising the conduct of some immigration lawyers, although one wonders how much of the article is actually in what they don’t tell us in scaremongering techniques.  Anything to do with immigration is now easily a political soft target, especially those “evil lawyers” who are assisting the “evil illegal immigrants stealing our jobs”.

The article surmises at the end of the first paragraph that thousands of immigration advisers are “poorly-trained, under-regulated and sometimes break the law.”  Sadly, there have always been lawyers who are corrupt, and would bend the rules or break the law to assist their clients to win cases; however, this is not only limited to the field of immigration law.  It should be remembered that although there are those that bend the rules and break the law in any area of practice, the majority of lawyers abide by an ethical and professional conduct: as a lawyer, one has a duty to act in the best interest of the client, but there is an overriding duty to justice and to the Court.  This means that if a client admits to lying in order to further their case, your duty is to advise them to come clean and admit their misdemeanour, or you would have to cease acting for the client.  The acts of the corrupt minority should not be used to judge and taint the good and legitimate work which is done by the majority of immigration lawyers.

The Sunday Telegraph cited the case of Eustace Okere, stating that a Crown Court judge had called Mr Okere a criminal, and that his name had appeared during the trial of Portuguese-born Jorge Mouchinho and Falana McKenzie, from Trinidad, who were each jailed for 12 months for immigration offences.  The question is, does this actually make Mr Okere a criminal?  Mr Okere is currently under investigation by Nottinghamshire police and the OISC.  Just because a lawyer is undergoing investigation does not automatically equate to a suspension of practise.  This rings true in any other area of law, should an investigation regarding the conduct of a lawyer take place.  As the OISC confirmed, according to the Sunday Telegraph, they are “actively considering the continuation of HCI Immigration Consultants’ registration as an OISC regulated firm”, which would suggest that suspension can still be an option.  Mr Okere has also not been convicted of any offence.  Are we now supposed to assume that anyone being investigated is automatically deemed to have done something wrong: whatever happened to innocent until proven guilty?

The Sunday Telegraph pointed out that Mr Okere also charged an undercover reporter, posing as an African woman who had overstayed on a student visa, £100 in cash for a half-hour appointment to discuss how he could help her.  It is unclear whether the undercover reporter posed as a woman who was eligible for Legal Help, but if in her role-play, the undercover reporter posed as someone who was not eligible for legal aid, is there then anything wrong in Mr Okere charging for his legal services?

Although I will not deny that there are corrupt lawyers around (and I am not saying for certain whether Mr Okere is in the right or in the wrong), I would urge anyone who hears stories such as the one of Mr Okere to read between the lines.  Look at what the story tells us, and also what the story omits in facts.  Stories of bogus immigration lawyers always make for sensational reading, especially in poor economic times such as these.

The Law Society introduced the accreditation system for immigration lawyers in an attempt to regulate lawyers giving immigration advice, and hopefully maintain a standard of service for those who are vulnerable.  The accreditation scheme has allowed non-qualified lawyers to assist in giving immigration advice, as well as allowing non-lawyers to give immigration advice too.

I will concede that advisers who have come to do immigration work purely through the accreditation route do indeed undergo less training than solicitors.  Sometimes, the thorough legal training received by studying law (at undergraduate level, or at the GDL) and then moving onto the Legal Practice Course (LPC) or the Bar Professional Training Course (BPTC) will provide an adviser with a deeper insight of a case, as there are often overlaps between different areas of law.  For example, the recent decision of the Court of Appeal in the case of The Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 solved an immigration law issue using principles of constitutional law.

Perhaps then the way forward may by to look at the criteria before a qualified or non-qualified lawyer may be accredited to do immigration work: it may be that the accreditation programme is changed to include elements of constitution and administrative law, as well as the basics of the English legal system, also taking into account any modules or studies in law which have been carried out previously.  This would allow non-qualified lawyers to practise in a field (about which they feel passionate) where the only barrier to their practising would be the missing training contract or pupillage, which are rare and hard to come by nowadays.

The quality of advisers will no doubt impact upon the mounting Legal Aid bill faced by the Ministry of Justice, however, in assessing the impact upon Legal Aid in the immigration system from “poorly-trained” advisers, then surely we must also look at the quality of the decisions which come from the UK Border Agency (“UKBA”).  Before the freeze in Civil Service recruitment, the minimum qualification a UKBA caseworker was required to have was either a 2:ii degree or equivalent, or 2 A-levels or equivalent at grades A-C. How is it right to criticise the quality of training of immigration advisers, especially justifying the criticisms against a mounting Legal Aid bill, if the training and quality of UKBA caseworkers are not examined too?  After all, without a bad UKBA decision, there would be no need to immigration lawyers to work under Legal Aid to challenge the decisions.

I recently had a visa extension appeal before the Tribunal, funded under Legal Aid, merely because the UKBA caseworker did not add up the amount of monies shown in varying bank statements as evidence of adequate maintenance, and refusing my client’s application merely on that ground alone.  Let’s not forget to add the costs of the actual running of the Court, and for the UKBA presenting officer present at the Court hearing added on top of my Legal Aid bill.

Perhaps if legal aid for immigration cases were to be brutally slashed, as suggested in the latest Ministry of Justice consultation, and there were a mechanism for allowing victorious appellants in claiming back their legal costs, it would assist in training UKBA caseworkers properly as the UKBA budget soars due to appeal costs being awarded against them, which would in turn hopefully reduce the legal aid costs in other immigration and asylum matters.

There are definitely issues which need to be addressed in the accreditation process, but I would say it was highly unfair in criticising only the immigration advisers and not the UKBA in contributing to the mounting Legal Aid costs.  If reform has to be carried out on training of immigration advisers, then equally, it would be right to reform the training of UKBA caseworkers.

Certainly there needs to be a crackdown on disreputable immigration advisers who charge vulnerable clients an extortionate amount of money to “assist” them.  I do not think that anyone would dispute that need.  It is also right that with the Legal Aid cuts proposed, that we should ensure that people are getting the proper advice. Reforming the training process may assist in achieving even better quality of work amongst immigration lawyers.  Also giving a regulatory body with more powers can also be on the way to crackdown on bogus immigration lawyers.

Although training and regulation will help in assisting clients receive better quality advice, the major issue which is affecting a lot of lawyers is the Legal Aid system itself.  The adage that nothing is free rings true.  If one wants better quality of work, then there has to be some form of payment for it.  In looking at mechanisms for payment, we have to look to the Legal Aid system.  The fixed-fee system now in operation does not allow lawyers to be paid in the interim for work carried out: they are only paid in full on closure of a stage or of the matter.  This lack of cash flow is, in my opinion, creates an additional pressure on lawyers to close their files and bill their cases in order for there to be continual cash flow.  The lack of cash flow is what caused the sad demise of the Refugee and Migrant Justice.  Perhaps if lawyers were properly paid for the work they do, not even in increasing the amount paid, but to ensure that there is a regular cash flow, it may decrease pressures of concentrating on closing files, and even may reduce the potential for lawyers going rogue.

A combination of reform in relation to training, regulation, and payment has to be carried out simultaneous in order to increase the quality of work even further.  To increase the quality of service which the service users in the immigration system receive, we must also increase the quality of service provided by the UKBA itself, not merely using immigration lawyers, bogus or legitimate, as a scapegoat in order to avoid the real issues regarding methods of service improvements.

Howard graduated at University College London. He was called to the Bar by the Inner Temple and is a non-practising Barrister. He is a Level 2 Law Society Accredited Immigration Advisor, practising for a firm of solicitors in London. Previously, he has worked at Refugee and Migrant Justice, and the Immigration Advisory Service, specialising in appeals before the Tribunal, and the detained fast-track process.
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