There have been some excoriating judgements from the Upper Tribunal President, Mr Justice McCloskey in recent weeks; VA (Solicitor's non-compliance: counsel's duties) Sri Lanka  UKUT 00012 (IAC) and Shabir Ahmed and others (sanctions for non - compliance)  UKUT 00562 (IAC).
Both of these cases highlight the need for solicitors to be properly prepared for tribunal hearings, and to take their duties to the court seriously. Tribunal hearings are a difficult undertaking and it can take many years of experience to become proficient and able to properly case manage a long running appellate process.
It is also usually a big moment for a trainee solicitor, appearing on their own for the first time in the Tribunal. In Scotland the rule is that those trainees who have been ‘admitted’ to the legal profession may appear at the Tribunal, if ready to do so. They will have completed their first year of training and have been ‘admitted’ as a solicitor, on a restricted basis, as a second year of training follows. It is normally a good idea, even once that practising certificate has been obtained, for a trainee to be accompanied by an experienced practitioner.
Tribunal hearings can often take difficult turns and so it is usually better for an admitted trainee to have support over those first few hearings. When I took the decision to leave the Home Office and qualify as a solicitor, I was placed in the unusual situation of having had a good few years of experience presenting cases at the Tribunal on behalf of the Secretary of State, but not then being permitted to appear on behalf of our firm’s clients. Once I had my practising certificate (albeit a restricted certificate issued to those solicitors still training), I still appeared for the first few occasions with an experienced solicitor from our firm. I was glad of that support, since a solicitor’s duties are very different and more onerous than those which I had as a civil servant appearing at the Tribunal.
The legal basis for the right of audience at the Tribunal comes from the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 at paragraph 10:
10.—(1) A party may be represented by any person not prohibited from representing by section 84 of the 1999 Act.
The 1999 Act is the Immigration and Asylum Act 1999 which provides for the regulation of immigration law advice and services. The Act contains an offence regarding the provision of either services or advice by those not covered by section 84.
Section 84 states:
“Provision of immigration services.
(1)No person may provide immigration advice or immigration services unless he is a qualified person.
(2)A person is a qualified person if—
(a)he is registered with the Commissioner or is employed by, or works under the supervision of, such a person;
(b)he is a member or employee of a body which is a registered person, or works under the supervision of such a member or employee;
(c)he is authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body, or works under the supervision of such a person;
(d)he is registered with, or authorised by, a person in another EEA State responsible for regulating the provision in that EEA State of advice or services corresponding to immigration advice or immigration services or would be required to be so registered or authorised were he not exempt from such a requirement;
(e)he is authorised by a body regulating the legal profession, or any branch of it, in another EEA State to practise as a member of that profession or branch; or
(f)he is employed by a person who falls within paragraph (d) or (e) or works under the supervision of such a person or of an employee of such a person.”
It is important to note that the probation on providing services or advice outwith the ambit of section 84 only applies if the provision of such is in the course of a business carried on (whether or not for profit) by the person giving the advice or by another person. This therefore covers the provision of advice by for example, a family friend, which could even extend to representation at a tribunal, so long as it is not provided in the course of a business. See for example RK (entitlement to represent: s. 84) Bangladesh  UKUT 409 (IAC).
From Section 84 there are two main broad categories of permitted advisor. The first is those regulated by the Office of the Immigration Services Commissioner (OISC). The OISC permits individuals to train in immigration law, and reach various levels of assessed competence (level 1, 2 and 3), which then provides qualification in terms of section 84, without the need to qualify as a solicitor or advocate.
The second category of ‘qualified persons’ are those authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body. This covers:
(a)The Law Society;
(b)The Law Society of Scotland;
(c)The Law Society of Northern Ireland;
(d)The Institute of Legal Executives;
(e)The General Council of the Bar;
(f)The Faculty of Advocates; or
(g)The General Council of the Bar of Northern Ireland.
This then provides the basis for solicitors, barristers and advocates to appear. Further exemptions (with caveats) can be available for bodies in other EEA states, educational institutions and employers.
The Home Office has always been particularly alive to the problem of unqualified representatives appearing at tribunals or otherwise providing advice. Unqualified representatives, even those individuals who are undoubtedly experienced and well read as regards the law, do present an issue. The adherence to either the OISC’s standards or qualification as a legal professional provides a degree of assurance that the advisor is competent.
Published guidance by the Home Office displays the approach to be taken in cases where there is doubt over the representative’s authorisation
This includes particular scrutiny of whether the individual concerned is trying to pass themselves off as a solicitor.
Of some interest is the caveat within the 1999 Act that in addition to the practising member of a designated professional body, there is provision for a person who, not being qualified themselves, nevertheless works ‘under the supervision’ of such a person. Clearly this would have to be interpreted sensibly and the supervision both evidenced and robust, and within a workplace environment. It would not extend to unqualified persons providing advocacy at the tribunal without direct supervision. Indeed even if an experienced solicitor physically attended the tribunal with the unqualified person, this, bearing in mind the importance of proceedings and the judgements of the Upper Tribunal President above, would be a very brave step. It would also set a dangerous precedent and significantly diminish the importance of proper qualification under the 1999 Act.
Reference to the OISC’s relevant guidance is instructive. Only level 3 qualified advisors are entitled to provide advocacy at the Tribunal. The guidance does permit a lower qualified advisor to perform functions at a higher level as part of their training, but only if a supervisory plan is provided to the Commissioner and approved. The relevant guidance notes:
“Initially the adviser will need close supervision. The arrangements for supervision will vary depending on the training and experience of the supervisee. The supervisor should be physically located at the same premises as the supervisee. The supervisee should submit all work produced at the higher Level to the supervisor for examination and correction. The supervisor must actively monitor or oversee the work of the supervisee, and not simply serve as a source of advice. There must be a system in place for ensuring that action is taken, where necessary, and the entire process must be properly documented in writing and made available to the OISC for inspection, if required. There should be a system of staged progression involving a series of assessments of the supervisee’s performance to determine whether he or she is ready to move to the next stage. As the supervisee’s training progresses, the degree of supervision can be reduced.”
This kind of close supervision is mirrored to a large extent in the Law Society of Scotland’s approach to the training of solicitors.
Outside of this close supervision it would be very difficult to justify the appearance of an unsupported and unqualified representative at the tribunal, no matter how competent they appeared. Qualifying as a solicitor or an OSIC advisor are necessary steps, protecting both clients and the firm providing advice.