Closed Consultation

Our Standards and Regulations

1. The Solicitors Regulation Authority (SRA) is the regulator of solicitors and law firms in England and Wales. Our purpose is to protect the public by ensuring that solicitors meet high standards, and by acting when risks are identified.
2. Our Standards and Regulations came into effect on 25 November 2019. From this date solicitors, registered European lawyers (RELs) and registered foreign lawyers (RFLs) that we authorise to work in England and Wales have been permitted to provide unreserved legal services to the public from organisations that we do not regulate, as well as continuing to provide a full range of legal services to the public from law firms that we regulate. They may also now choose to work as SRA-regulated freelance solicitors.
3. The Standards and Regulations include some restrictions on the types of services that solicitors, RELs and RFLs can provide to the public in different scenarios. In particular, this includes the circumstances under which they are able to provide immigration services.

Immigration advice and services

4. Part V of the Immigration & Asylum Act 1999 (IAA) sets the requirements for the provision of immigration advice and immigration services across the United Kingdom. Section 84 of the IAA provides that only a qualified person may provide these services, and then sets out when a person is a qualified person.
5. The Office of the Immigration Services Commissioner (OISC) is also established by the IAA, with a remit to regulate the provision of immigration advice and services throughout the UK. The OISC operates a regulatory system for immigration advisers and organisations that provide immigration services. They currently regulate 1,612 organisations and 3,135 registered advisers, who provide immigration advice and services at three different levels of authorisation.
6. The Law Society for England and Wales is a designated qualifying regulator under section 86A of the IAA¹. This means that where we authorise a person to provide immigration advice and services under the IAA we, rather than the OISC, regulate any such services.
7. We authorise 153,306 practising solicitors, RELs, RFLs and Exempt European Lawyers (EELs), and 5,364 (or 3.5%) record on their 'mySRA' profile that they do some immigration work. In addition, 1,960 (19%) of the 10,263 firms that we regulate confirm that they do some immigration work².
8. In practice any solicitor, REL or RFL may choose to do immigration work as long as they meet all our ethical standards and regulatory requirements.

Providing immigration advice and services before 25 November 2019

9. Prior to 25 November 2019, solicitors, RELs and RFLs could provide immigration advice and services to members of the public from:
   • SRA-regulated law firms
   • authorised non-SRA firms (these are firms that are authorised by another approved regulator under the Legal Services Act 2007)
   • law centres and other non-commercial organisations authorised by the OISC³
10. They were also permitted to provide immigration advice when working in-house for other organisations not falling into the categories above. In those situations, solicitors, RELs and RFLs were not able to provide immigration services to the public or a section of the public, but only to their employer as permitted by Rule 4 of the SRA Practice Framework Rules 2011.

Providing immigration advice and services after 25 November 2019

11. Regulation 9.5 of the SRA's Authorisation of Individuals Regulations (AIRs) is not yet fully in force. As made, it would permit any solicitors, RELs and RFLs to do immigration work provided that the work is undertaken either through an SRA-authorised body, or an authorised non-SRA firm that is a qualified person under the IAA (such as an OISC regulated firm).
12. In effect this meant that if regulation 9.5 of the AIRs had come into force in its entirety, from 25 November 2019, the categories of organisation listed at paragraph 9 above would have been extended to also include fee-charging OISC-regulated organisations.
13. We consulted on this approach as part of our 'Looking to the future' proposals⁴ in 2016 and 2017, although it did not receive significant comment. The new arrangement was designed to complement the existing regulatory and legislative frameworks for immigration work carried out in England and Wales, by maintaining existing restrictions that mean solicitors are only authorised to provide immigration advice or services to the public from organisations regulated in accordance with the IAA's requirements.
14. However, following discussions during 2019 with the OISC we decided to introduce transitional provisions that placed the new provisions on hold.
15. The transitional provisions have been made so that solicitors, RELs or RFLs continue to be authorised to undertake immigration work under the same arrangements as were in place before 25 November 2019.
16. We now want to introduce a suitable long-term position in our Standards and Regulations.

17. Our regulatory arrangements need to work effectively alongside OISC's scheme of regulation. Solicitors and OISC-regulated advisers account for the majority of legal representatives actively working in the immigration advice sector, which as mentioned above consists of 3,135 advisers registered with the OISC, and 5,364 solicitors who record with us that they so some kind of immigration work. There are also approximately 1,500 further individuals authorised to undertake immigration advice by CILEx Regulation and the Bar Standards Board. It is important that we coordinate our respective regulatory frameworks so that they continue to prioritise the effective provision of immigration advice and services across England and Wales.
18. Our recent work with the OISC has focused on establishing a satisfactory position for solicitors, RELs and RFLs to be authorised by us to undertake immigration advice and services in a way which both we and the OISC agree provides appropriate protection and clarity for the public.
19. The IAA places a statutory duty on the OISC to ensure that organisations which they regulate to provide immigration advice and services are fit and competent to do so. We need to make sure that we continue to support the OISC to fulfil this duty.
20. We are therefore proposing to:
    • Amend the Standards and Regulations to only allow solicitors, RELs and RFLs to work at fee charging OISC regulated organisations if they are otherwise a qualified person under section 84 of the IAA, which usually will require them to register with the OISC. This ensures that the OISC retains full control of who they authorise to provide immigration advice and services to the public.
    • Amend the Standards and Regulations to formalise arrangements that mean any individuals being supervised by solicitors, RELs and RFLs in non-commercial organisations registered with the OISC will need to be authorised directly by the OISC or authorised by a designated qualifying regulator.
    • Begin a longer-term programme of activities focused on the immigration advice and services sector. This will help us to understand how our regulatory arrangements might need to evolve so that they are capable of quickly responding to risks within the immigration advice sector as they emerge.
21. We would like to get your views on the amendments to the Standards and Regulations and on our longer-term work.

Description

22. We are proposing to revise the provisions in regulations 9.5 to 9.7 of the AIRs to ensure that the OISC has full control of who they authorise to provide immigration advice and services to the public. The amended regulations are at Annex one.
23. The proposed amendments will require solicitors, RELs and RFLs authorised by us to become a qualified person under the IAA (usually by registering with OISC), should they wish to provide immigration advice and services to the public from commercial OISC regulated entities.
24. The proposed amendments will mean that, in situations where solicitors, RELs and RFLs are registered with the OISC to act as registered immigration advisers in OISC regulated organisations, they:
    • Will not be able to supervise individuals in OISC regulated organisations so as to make them a qualified person under the IAA.
    • Must adhere to the OISC's Code of Standards and regulatory requirements when they are providing immigration advice and services to the public from OISC regulated organisations.

What this will mean for solicitors, RELs and RFLs

25. Our proposed approach will mean that solicitors, RELs and RFLs will continue to be able to provide immigration advice and services to members of the public from:
    • SRA-regulated law firms
    • authorised non-SRA firms (meaning firms that are authorised by another approved regulator under the Legal Services Act 2007)
    • law centres and other non-commercial organisations authorised by the OISC.
26. To provide immigration advice and services to the public from fee charging OISC regulated organisations, solicitors will need to become otherwise qualified under the IAA, as will any individuals that they supervise. If they opt to do this through OISC registration, and if approved by the OISC, they will then be acting as an OISC registered adviser when undertaking immigration work from within those organisations. In those situations, solicitors will need to explain clearly to clients that they are acting in their capacity as an OISC registered adviser.
27. However, this will not prevent solicitors from maintaining their practising certificate, or RELs and RFLs from being registered with the SRA.
28. We also recognise that, while our Code of Conduct for Solicitors, RELs and RFLs applies to solicitors, RELs and RFLs wherever they work, there are some differences in approach between our regulatory framework and the OISC's Code of Standards. Our proposed rule amendment therefore makes it clear that, in situations where solicitors, RELs and RFLs act as an OISC registered adviser and are providing services from a commercial OISC regulated organisation, the OISC's Code of Standards prevails in any instances of conflict between the two codes. This reflects the principle of section 54 of the Legal Services Act 2007 that in instances of conflict, entity regulation overrides individual regulation.
29. The OISC's complaints scheme will be applied to situations where a complaint is made about solicitors, RELs and RFLs while they were acting as an OISC registered adviser and providing services from an OISC regulated organisation. We will continue to work closely with the OISC regarding complaints or concerns about the conduct of individuals that we regulate.
30. None of this will prevent solicitors, RELs and RFLs from continuing to provide immigration advice and services in any of the ways described above at paragraph 25. Solicitors, RELs and RFLs who are employed in-house will also continue to be able to provide immigration advice and services to their employers.
31. This means that solicitors, RELs and RFLS employed by non-commercial organisations regulated by the OISC will continue to be able to provide immigration advice and services from those organisations as they do now. However, our proposed rule amendment formalises arrangements that mean any individuals being supervised by solicitors, RELs and RFLs under those circumstances will need to be registered with the OISC or authorised by a designated qualifying regulator.

Delivering the amendment

32. We will:
    • apply to the Legal Services Board for approval of the amendments to our Standards and Regulations
    • (if approved) implement the amendments to our Standards and Regulations accordingly.

Proposed amendment

33. At Annex one we have set out the wording of our proposed amendment to our AIRs. If approved, this will replace regulations 9.5 and 9.6 of the AIRs.

Impacts of the amendment

34. Some of the potential impacts that we believe are associated with this part of our proposed approach are below.
35. We would like to hear what you think about these, as well as any other impacts you have identified.

Question 1: What do you think about our intended approach to our rules for providing immigration advice and services?

Question 2: Do you agree with the impacts we have identified for our approach to how we authorise solicitors to provide immigration advice and services? If not, please explain why.

Question 3: Are there any other potential impacts you think we need to take into account?

Description

36. The second half of our approach is to take forward a programme of activities focused on building a clearer evidence-base and understanding of risks to consumers in the immigration advice sector, informed by the views of our stakeholders.
37. We will then use insights from those activities to consider options to evolve our regulatory approach towards immigration advice and services. This will include developing approaches to respond to concerns (raised by stakeholders including the OISC and Justice's Working Party) about solicitor supervision arrangements.

Our proposed activities

38. Evidence-gathering and engagement activities we are aiming to take forward during 2020 include:
    • Carrying out a focused thematic review of regulated law firms in the immigration services sector (building on our previous investigation into the quality of asylum advice). This will look at several areas, including the quality of representation and supervision arrangements.
    • Continuing our work with the national charity Justice in delivering a co-ordinated response to their Working Party's 2018 report 'Immigration and asylum appeals - a fresh look'.
    • Continuing to work with stakeholders including the OISC, the Law Society's Immigration Law Committee, and the charity Refugee Action to explore the issues in the immigration sector and possible solutions.

Using the evidence

39. We will use evidence identified during these activities to evaluate options focused on improving the regulation of the immigration advice sector, and regulatory responses that are targeted with greater accuracy towards the risks that consumers can face when they need to access legal representation or advice about an immigration situation.
40. We might also identify consumer information requirements, and we will consider how we might approach these.

Outcomes

41. The outcomes of this work will be guided by the findings of our evidence -gathering processes mentioned above. However, we will focus on two areas in particular:

    Improving solicitor supervision arrangements – including:

    • developing options for creating new guidance resources for SRA-regulated firms, solicitors, RELs and RFLs that do immigration work, including clearer guidance about the regulatory expectations of supervision arrangements
    • exploring how we can tighten our regulatory arrangements to prevent those who have been disqualified from the OISC's scheme from seeking to provide immigration services from SRA-regulated firms.

    Helping consumers of immigration services to get better information - including:

    • exploration of bespoke information resources to help people using immigration services to understand the role of their legal adviser

Question 4: Are there other areas you think we should focus on? If so, what are they?

• We would like to hear what you think about our approach, and the areas we are proposing to focus on in the future.
• If you believe we should be considering a different approach or that we should have another area of focus, please tell us what this could be.
• We would also welcome any information you may have about the potential impacts of our approach. In particular, we are interested to hear what you think this could mean in practical terms for people who may need to take immigration advice in the future, or who may need to get legal representation regarding an immigration matter.

Question 1: What do you think about our intended approach to our rules for providing immigration advice and services?

Question 2: Do you agree with the impacts we have identified for our approach to how we authorise solicitors to provide immigration advice and services? If not, please explain why.

Question 3: Are there any other potential impacts you think we need to take into account?

Question 4: Are there other areas you think we should focus on? If so, what are they?

(this amendment is proposed as a replacement for the existing regulations 9.5 and 9.6 of our Authorisation of Individuals Regulations.)

Immigration work

9.5 If you are a solicitor, an REL or RFL you may undertake immigration work, provided that such work is undertaken:

1. through an authorised body;
2. through an authorised non-SRA firm that is a qualified person under the Immigration and Asylum Act 1999;
3. as an employee, for your employer or work colleagues; or
4. through a non-commercial advice service which is registered with the Office of the Immigration Services Commissioner or otherwise qualified under the Immigration and Asylum Act 1999

9.6 Where you undertake work under rule 9.5(c) or (d) above, this must be undertaken by you personally and not by another person on your or your employer's behalf unless such person is a qualified person under the Immigration and Asylum Act 1999 other than under section 84(2)(e) of that Act.

9.7 If you undertake immigration work through a body which is registered with the Office of the Immigration Services Commissioner or otherwise qualified under the Immigration and Asylum Act 1999 other than as permitted under 9.5(d), you must be registered as an individual with the Office of the Immigration Services Commissioner or otherwise qualified to do so under the Immigration and Asylum Act 1999 and will undertake such work in that capacity.

9.8 Where you are undertaking work under 9.7 above, in the event of any conflict between the SRA's regulatory arrangements and any requirements placed on you by the Office of the Immigration Services Commissioner, the latter shall prevail.

9.9 Nothing in this section restricts you from undertaking immigration work if you fall within section 84(6) of the Immigration and Asylum Act 1999.