Chapter 03 (pp 59 - 74)
Chapter 3: Immigration Advice
This chapter reflects the position as of 01/10/07
Page 59
Community Legal Service
Legal Services Commission Unified Contract (in force 1 April 2007) replacing the General Civil Contract (Solicitors and Not for Profit)
The new 'Unified Contract' does not contain the specialist quality mark (SQM) as a stand alone document. Many of the provisions of the SQM have, however, been integrated within the new contract itself. The Legal Services Commission has indicated that the SQM will continue to be used for all suppliers as a standard by which to assess management systems and as a best practice guide.
Page 60
'General Help including Casework' It should be noted that suppliers have not been able to undertake form filling for naturalisation or travel document applications since 1 April 2004 unless the work relates to advice where a point of law arises. This remains the position under the existing Specification(for which see below).
Page 60
'Specialist Help' For the time being, advice and assistance continues to be available to advisers from those organisations that have a contract with the Legal Services Commission to provide specialist support services in the form of a telephone advice line. The present arrangements will remain in force until March 2008. From April 2008 the Legal Services Commission intends to provide the consultancy services on revised terms. These terms have not yet been finalised.
Page 61
Other advisers
'Specialist (level 3)' was renamed 'Advocacy and representation' in May 2005.
Page 61
Northern Ireland
Since November 2003 legal aid funding has in fact been managed by the Northern Ireland Legal Services Commission. The Access to Justice (Northern Ireland) Order 2003 repealed the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.
Page 62
WHERE TO OBTAIN ADVICE
England and Wales
Community Legal Service (CLS)
The CLS Directory Line has been changed to 0845 345 4345
Page 62
Scotland
The section of the website in which immigration firms can be found has changed. The information can be found in the section entitled 'Find a solicitor'.
Page 63
Those who can provide advice
Note that persons who are qualified' are:
- Practicing solicitors, barristers or legal executives and those acting on behalf and under their supervision if they are regulated by one of the designated professional bodies.
Page 64
Those who can provide advice
The application forms for exemption and registration have been updated. Applications should be made on the 2007 version of the form. This can be downloaded from the OISC website. In certain circumstances, failure to use the correct form, can lead to closure of the application, and the loss of the relevant fee.
Page 64
OISC Rules and Code of Standards OISC Code of Standards 2006 (in force 2 July 2007) replacing OISC Code of Standards 2000.
The revised Code is similar in content to its predecessor but it has been updated to take account of commercial activities. It now includes a new section on practice management which deals with new issues such as fees, accounts and the advertising of services.
OISC Commissioners Rules 2006 (in force 2 July 2007) replacing Commissioners Rules 2000
The revised Rules still strongly resemble the previous Rules but they have been updated to place greater emphasis on financial accountability, management and professional services.
Note that if advice is provided on a one off basis, an individual will not be regulated, however where individuals advise regularly, even though it may be in a personal capacity, the OISC have confirmed that their regulatory powers arise (indeed the OISC has indicated that there have been prosecutions in this situation).
Page 65
Complaints to professional bodies
OISC complaints scheme 2006 (in force 1 June 2006) replacing OISC complaints scheme 2000.
The revised complaints scheme is similar to its predecessor. A key changes is that it has been confirmed that the criminal standard of proof applies in circumstances where there is an allegation of dishonest or illegal activity in relation to the provision of immigration advice or assistance. In addition, the previous rule requiring the written permission of a complainant before pursuing a complaint is abolished.
Pages 67-9
LEGAL AID FUNDING IN ENGLAND AND WALES
In July 2006 at the request of the Government, and following publication of a paper by the Legal Services Commission detailing its approach to legal aid, Lord Carter of Coles produced his review. His recommendations included the following.
- The use of fixed and graduated fees for civil work including immigration and asylum work.
- The bringing together of contracting arrangements for the not for profit, and the profit sector.
- An endorsement of the LSC strategy to deliver legal advice through Community Legal Advice Networks (CLANS) and Community Legal Advice Centres (CLACS).
- In the longer term, a shift to allocation of contracts for either CLANS or CLACS on the basis of a competitive tendering with contracts being awarded on the basis of quality, capacity and price. This is known as 'best value' tendering.
Following a period of consultation, the Legal Services Commission and the Department for Constitutional Affairs published a command paper 'Legal Aid Reform; The Way Ahead in November 2006' CM6993 (November 2006). This document set out a programme of reform which reflected many of Lord Carter's proposals including those detailed above. It also set out a broad time-table for the implementation of the measures.
On 1 April 2007, the first aspect of the reform programme was put in place, with the replacement of the General Civil Contracts for both solicitors and the not for profit sector by a single 'Unified contract'. The Unified Contract is accompanied by a new set of standard terms and conditions, and has now been accompanied by new Civil and Immigration specifications which replace the previous specifications under the General Civil Contract.
The Unified contract is similar to the General Civil Contract in that it regulates the relationship between suppliers and the Legal Services Commission. The contract also does the following:
- Brings solicitor and non solicitor agencies together so that they operate under the same terms.
- Introduces key performance indicators, and contains the capacity to introduce further indicators. From 2 October 2006, it has been a requirement for immigration suppliers that they should have a minimum success rate of 40% for immigration and asylum work combined, and 35% respectively in immigration and asylum. Other performance indicators relate to:
-
- the extent to which claims for exceptional payments need to be reduced by more than 10% on assessment;
- the extent to which claimed fixed fees exceed the amount payable under hourly rates;
- the extent to which suppliers meet matter starts allocated to them;
- the extent to which suppliers meet the minimum threshold for competence following peer reviews.
- Provides one contract to each organisation rather than a contract for each office.
- Introduces a new system for payments on account when legal aid certificates are issued so that payments are only issued through application rather than automatically, as is presently the case.
- Does not incorporate the specialist quality mark as such.
- Introduces a new clause giving the LSC the power to terminate a contract with a supplier on a no fault basis in circumstances that the LSC consider this 'necessary or desirable to do so in order to facilitate reform of the Legal Aid Scheme'.
- Introduces a new clause giving the LSC the right to unilaterally amend the contract documents at any time where it is considered desirable or necessary to do so to facilitate reforms that the LSC wishes to undertake.
The reforms detailed above, and future proposals have been controversial. Groups such as the Immigration Law Practitioners' Association argue that the above measures are likely to drive out large numbers of lawyers from publicly funded work as they are unlikely, in the long run, to be able to sustain the financial risks associated with the scheme. It suggests that this will ultimately lead to inability to fulfil the demand for legal advice.
There is also a pending legal action instigated by the Law Society before the Court of Appeal. This relates to the contractual clause of the unified contract which permits the Legal Services Commission to unilaterally amend the Unified Contract. The matter was heard in October. Judgment is awaited.
Page 69
The Legal Help Scheme
Paragraph B9.1 Funding Code, Rule 2.26 Unified Contract Civil Specification and Rule 11.69 Unified Contract Immigration Specification amending paragraph B3.3 Funding Code 2000.
Though it is not expressly stated in the Handbook, the rule that Legal Help cannot be provided in the same matter where it has previously been received from another solicitor or contracted supplier, save for in specified circumstances, has historically been a requirement for the provision of Legal Help. This requirement is set out in the new Funding Code but has also now been extended so that it is applicable not only to Legal Help, but to all Controlled work. New procedural requirements are also placed on practitioners when the specified exceptions apply.
Page 70
Costs limits and extensions
Unified Contract Civil and Immigration Contract Specifications, replacing General Civil and Immigration Contract Specifications 2004 (Solicitor and Not for Profit) (in force 1 October 2007); and The Community Legal Services (Funding) Order 2007(in force 1 October 2007 save for parts 5 and 8) replacing the Community Legal Service (Funding) Order 2000.
The above measures introduce a new 'graduated fixed fee' scheme which ties payment for work to the particular stage reached in an asylum or immigration case as opposed to the number of hours of work undertaken. The scheme applies to all immigration and asylum cases in which an application for controlled work is completed on or after 1 October 2007 though there are certain exceptions (see below). The scheme applies both to solicitors, and the not for profit sector.
The three stages to which payment is tied are set out within the Immigration Specification. The stages are as follows:
- Stage 1 - This refers to work undertaken under Legal Help and covers all steps up to and including granting Controlled Legal Representation or completing an application for review of a refusal to grant CLR. It therefore includes initial advice, drafting statements and advising on Home Office decisions.
- Stage 2a - This refers to cases in which CLR is granted but the case concludes before the main hearing. It covers all steps up to and including advice after the appeal and assistance including the drafting, lodging and preparation of appeals, re-application of the merits test and assisting in any review in relation to the withdrawal of CLR.
- Stage 2b - This refers to cases that involve representation at a main hearing. It covers the steps in 2a but, additionally, covers consideration of a determination and advice to a client and application of the merits test for reconsideration. It should be noted that payment cannot be made for both 2a and 2b as they are mutually exclusive
Exceptions to the graduated fee scheme - hourly payments
The new graduated fee scheme continues to operate side by side with an hourly payment scheme. There are five categories of cases that fall outside the graduated scheme and that remain subject to hourly payments. These five categories are as follows.
Controlled matters commencing before 1 October 2007. The graduated fixed fee scheme only applies to those controlled work matters which begin on or after 1 October 2007. It should however be noted that for cases beginning before this date, the relevant thresholds will automatically be extended to the new graduated limits that apply (for which see below).
Exceptional cases The term 'exceptional case' refers to a case where the value of the work undertaken under either stage 1 or 2, exceeds by three times the value of the graduated fee payable for the stage under the scheme. Exceptional cases are assessed at the end of the case and are also subject to a costs assessment.
Specific categories of case There are specified categories of case that fall outside the graduated fee scheme. These are as follows: (a) advice and representation for unaccompanied minors; (b) fresh claims for asylum made after 1 October 2007 and appeals arising from them where the original asylum claim was made before 1 October 2007; and (c) asylum claims made before 1 October 2007
Specified steps on cases Certain steps on cases will always fall under the hourly payment scheme. Steps that fall within hourly payments include advice in relation to form filling, advice and pre-action work before the issue of a Certificate for licensed work, applications for a Certificate, advice in relation to lodging an application for reconsideration of an appeal under Section 103A 2002 Act (where advice has not been received under Stage 2 of the graduated fee), Section 103B or 103E 2002 Act review and reconsideration applications and advice before attending at the Asylum Screening Unit where the case does not extend beyond the ASU.
Exclusive contracting arrangement Where the Legal Services Commission enter into an exclusive contracting arrangement with a supplier, this work will be remunerated on an hourly basis at a rate set by the Legal Services Commission. Work that is presently subject to exclusive contracting arrangements is set out at paragraph 11.94 of the Immigration Specification. It includes for example the work under the fast-track schedule.
The graduated fees introduced through the new scheme that apply in the case of Stage 1 Legal Help are set out below. It should be noted that casework fees are not extendable. Disbursement costs however are extendable on application to the Legal Services Commission.
|
Type of case |
Casework costs |
|
Asylum |
£450.00 |
|
Immigration |
£255.00 |
|
There is an extra add on in immigration and asylum cases for representation at Home Office interviews in certain limited circumstances (for which see rules 11.102-11.103, Immigration Specification) |
£290.00 |
|
Initial disbursements limit |
£400.00 |
The financial thresholds that apply in the case of hourly rates cases, for all suppliers, are set out below:
|
Type of case |
Casework costs |
|
Asylum cases where the matter progresses beyond initial advice |
£800.00 |
|
Immigration matters |
£500.00 |
|
Provision of initial advice in relation to an asylum application prior to attendance at Asylum Screening Unit following which the solicitor is no longer instructed (including disbursements) |
£100.00 |
|
Initial disbursement limit |
£400.00 |
With the exception of payments for initial advice in relation to asylum before registering a claim at an ASU (where the client ceases to instruct their representative) and the assessment of the merits of a Section 103A Review application ie application for reconsideration of £100, all of the costs limits are extendable on application to the Legal Services Commission.
In those cases in which it is possible to apply for an extension to a financial limit, extensions will continue to be granted by the Legal Services Commission where it can be shown that that the further work is both reasonable and necessary.
Page 71
The means and merits tests
Rule 11.129 Immigration Contract Specification 2007 (in force 1 October 2007) replacing paragraph 12.5.1 of the General Civil Immigration Contract Specifications (Solicitors and Not for Profit)
The effect of the above is that, from 1 October 2007, all suppliers possess devolved powers to refuse, grant, and withdraw Controlled Legal Representation.
Page 71-2
Prospects of success Paragraph 29.8 Funding Code 2007: Decision Making Guidance: Immigration replacing rule 13.2 of Immigration Contract Specification (Not for Profit) 2004.
While this still continues to be applicable, and while the examples given of poor prospects of success continue to apply, they now appear within the Funding Code.
Page 71-2
Refusal of CLR and appeals Rule 11.147 Immigration Contract Specification 2007 replacing rules 12.5.5.7 Immigration Contract Specification (Solicitors) 2004 and 13.5.5.8 Immigration Contract Specification (Not for Profit) 2004.
The effect of this above is to reduce the review period from 14 days to 5 days when CLR is refused or withdrawn. It should also be noted that the system of reviews in relation to withdrawal and refusal of CLR was changed in October 2006, following amendments to the General Civil Contract. Review matters are now considered by an Independent Funding Adjudicator rather than the Funding Review Committee.
Page 73
Costs limits Part B: Payment annexe to Unified Contract Civil Specification replacing General Civil and Immigration Contract Specifications (Solicitor and not for profit).
The applicable graduated fees under Stage 2 of Controlled Legal Representation are:
|
Type of case |
Stage |
Fee |
|
Asylum |
2a |
|
|
|
case concludes before substantive hearing |
£240.00 |
|
|
2b |
|
|
|
cases that are taken onto substantive hearing |
£600.00 |
|
Immigration |
2a |
|
|
|
case concludes before Substantive hearing |
£240.00 |
|
Immigration |
2b |
|
|
|
case taken on to substantive hearing |
£480.00 |
The following payments, for the work specified, are available in addition to the above fees:
|
Representation at an Oral Case Management Review Hearing |
£175.00 |
|
Representation at telephone Case Management Review Hearing |
£95.00 |
|
Representation at substantive AIT hearing (immigration) |
£250.00 |
|
Representation at substantive AIT hearing (asylum) |
£320.00 |
|
Additional hearing part heard or re-list hearing (asylum or immigration) |
£170.00 |
All disbursements and travel costs are outside the scheme. The limit on the disbursements for all asylum/immigration cases is £600.00. This is extendable on application to the Legal Services Commission.
The hourly rate thresholds under Controlled Legal Representation have also been Modified and are as follows:
|
Type of case |
Casework costs |
|
Asylum |
£1600.00 |
|
Non asylum |
£1200.00 |
|
Bail |
£ 500.00 |
These thresholds include disbursements and are extendable on application to the Legal Services Commission.
Page 73
Legal Representation (previously known as 'Legal Aid')
The position with regards to the issue of LSC certificates referred to in the JCWI Handbook remains. While devolved powers have been returned to all suppliers with effect from 1 October 2007, these powers are only applicable in relation to CLR unless suppliers have been notified otherwise. Those suppliers, however, who possessed devolved powers prior to 1 October 2007 for the purpose of granting emergency certificates continue to have this devolved power.
Page 73
THE IMMIGRATION AND ASYLUM ACCREDITATION SCHEME
The Immigration and asylum accreditation scheme is now fully operational. There are four key changes to the scheme:
- The introduction of a new level of accreditation. The category of 'Level 2 probationer' was introduced in April 2006. Level 2 probationers are those who are accredited at level 1 but are progressing to level 2.
- The introduction of further work restrictions. Details of these can be seen on the LSC website under 'immigration and asylum accreditation'.
- The transfer of the administration of the accreditation scheme from the Legal Services Commission to the Solicitors Regulatory Authority on 1 June 2007.
The requirement, introduced by rule 11.73 of the new Immigration Specification, that practitioners must also be registered with their relevant regulatory body for inclusion on their lists of accredited advisors (SRA register and OISC list of regulated advisers). Failure to register with the appropriate body will prevent an individual from being able to undertake publicly funded immigration or asylum work. It should also be noted that advisors can be suspended, or removed from these lists through inappropriate conduct or inadequate service. The effect of this would also be to remove their entitlement to conduct publicly funded work.
