Statutory guidance

Guidance on Competence 2021 - Level 1 - Advice and Assistance

Updated 1 July 2021

1. Work permitted at Level 1

Level 1 advisers are permitted to make applications that rely on the straightforward presentation of facts to meet a set of qualifying criteria. Such applications will not be discretionary or concessionary in nature and applicants will not have an immigration history which is likely to adversely affect the application in question.

Where a case becomes complicated or an application is refused an adviser must refer the client as soon as possible to an adviser authorised to practise at a higher Level. Level 1 advisers can work on Leave to Remain applications only where the client has extant leave*.

All work at Level 1 will be within the Immigration Rules or Nationality Law. However, some applications that fall within the Immigration Rules or Nationality Law are not classified as Level 1 work. This is because they require the presentation of additional representations or legal argument which are not Level 1 competencies.

*Some exceptions apply (See OISC Guidance note on EUSS Applications)

1.1 Asylum and Protection

Level 1 advisers authorised in Asylum and Protection can undertake the following work:

• notifying UKVI of a change of address
• straightforward applications to vary the conditions attached to leave granted, including conditions attached to bail granted by the Secretary of State, for example the right to work or study, restrictions on residence or reporting requirement
• straightforward applications for leave in line, or refugee status in line for the UK born children of refugees and people with humanitarian protection.

No substantive asylum work, such as making applications or appeals, is permitted at Level 1.

1.2 Immigration

Level 1 advisers authorised in Immigration can undertake the following work:

Applications for entry clearance, Leave to Enter or Leave to Remain

Basic applications that are within the Immigration Rules to include the following categories:

• visitors
• spouses/unmarried partners under the five-year route
• fiancé(e)s
• other dependent relatives
• Settled and Pre-settled Status application
• Points Based Immigration System applications
• Other work visas permitted under the rules (for example - UK Ancestry Visa or Frontier Worker Permit)
• Applications covering extensions of stay and settlement under Appendix ECAA, formerly covered by the European Communities Association Agreement (ECAA).
• Diplomats, their family members and domestic staff
• BN(O) Status Holder

Level 1 advisers making the applications listed above should satisfy themselves that their clients can succeed on the available evidence without relying on human rights grounds. Where such grounds exist it will be important that the claim is comprehensively argued, explained and documented and as such the case should be referred to a higher level adviser.

Level 1 advisers may make applications under Paragraph 276A of the Immigration Rules where there are no periods of overstaying outside the period relied upon or any other factors which would require further representations.

Level 1 advisers may deal with out-of-time applications made within 14 days of the client’s leave having expired, where there is good reason for the delay that was beyond the adviser’s or their client’s control.

Level 1 advisers may make some late applications under the EU Settlement Scheme in accordance with the OISC Guidance note on EUSS Applications.

An application under the Victims of Domestic Violence Concession to vary leave in order to gain access to public funds may be conducted by Level 1 advisers who are aware of the requirements for a DV application.

Administrative Review

Lodging and dealing with an application for Administrative Review for any Level 1 type application with the exception of applications refused on the basis of credibility or a fundamental issue of genuineness of documents, or relationships.

Varying conditions of leave

Straightforward applications to vary the conditions attached to leave granted. For example, an application to remove the condition related to ‘No Recourse to Public Funds’. Level 1 advisers may also apply to vary the conditions already set for clients on bail granted by the Secretary of State, for example the right to work or study, restrictions on residence, or reporting requirements.

Nationality and Citizenship under UK law

Basic applications for:

• registration of a child as a British Citizen
• naturalisation as a British Citizen
• confirmation of British Nationality status.

Reconsideration of Nationality Applications

Applications for reconsideration on the basis of Nationality may be undertaken by a Level 1 adviser where there has been a failure by the Home Office to recognise that required information was submitted or a decision has been made prematurely, but not where the decision is believed to be incorrect according to law.

2. Work not permitted at Level 1

Level 1 advisers cannot undertake the following work:

• applications related to illegal entrants, overstayers (excluding those applying within 14 days of their leave expiring where there is good reason for the delay and permitted EUSS work), removal or deportation from the UK. Only applications for an amendment to the conditions of bail are permitted
• family reunion applications
• Settlement (Protection Route) applications
• Complex applications under Appendix EU, for example applications by person without valid leave at the time of application (exceptions apply related to EUSS Applications), late applications where grounds are deemed to be above Level 1 (see OISC Guidance note on EUSS Applications), applications made by persons with retained and derivative rights and Surinder Singh applications.
• detention and applications for bail
• appeals, tribunals and court work, including Judicial Review Case Management.

A Level 1 adviser’s client must as soon as possible, be referred on to an adviser who is authorised at a higher Level in cases involving detailed representations and follow-up correspondence such as:

• applications for Leave to Remain on the grounds of 20 years’ residence in the UK
• applications for Further Leave to Remain on the basis of Family or Private Life under the 10 year route
• applications under Paragraph 276A where there are periods of overstaying outside the 10-year route and or which would require detailed representations in support of the application
• applications for settlement on the grounds of Domestic Violence (DV)
• applications for further leave to remain/ settlement in respect of adopted children
• applications that are not within the Immigration Rules
• applications in which human rights grounds should be raised
• applications for Judicial Review or any form of representation related to Judicial Review. Including issuing a pre-action protocol letter.

3. Competence requirements

Level 1 advisers must demonstrate competence in the following:

3.1 Knowledge

1. Sufficient knowledge of immigration and asylum law to identify:

• that a client is subject to immigration control
• possible immigration categories that might apply
• relevant forms, procedures and fees that apply
• the requirements of the Immigration Rules that must be satisfied in respect of a particular application
• knowledge of the types of evidence needed to support cases and how to obtain such evidence
• relevant time limits
• urgent situations
• published UKVI practice in the consideration of cases including UKVI Operational Guidance
• mandatory and discretionary general grounds for refusal within the Immigration Rules
• the operation of the statutory extension of leave to remain when an application is made
• the operation of extensions, variations and curtailments of leave and the conditions of leave
• processes available to challenge negative decisions related to Level 1 applications.

2.The adviser must have a clear understanding of the limits of their knowledge and competence, and an understanding and sensitivity as to when a client’s case has to be referred. This means that a Level 1 adviser will need to have:

• general knowledge of immigration and asylum work and procedures, particularly in relation to illegal entrants and overstayers, to ensure that a client is referred appropriately
• a good awareness of the European Convention on Human Rights, particularly Articles 3 and 8, and the Human Rights Act 1998

3.2 Skills and Aptitudes

1.The ability to draft letters and complete application forms clearly and accurately in English, particularly when corresponding with UKVI and other bodies, using the correct terminology and enclosing the appropriate evidence or a clear explanation as to why it has not been provided.

2.Sufficient verbal communication and interpersonal skills to:

• identify to whom an enquiry relates, establish their wishes and intentions and the relevant facts of the case
• communicate advice clearly to a client, giving reasons and explaining all options
• inform the client of what steps they and the adviser need to take, including any urgent action.

3.The ability to identify vulnerable clients and to make appropriate provision (including referral) for such clients.

4.The ability to identify the range of evidence needed to support an application.

5.The ability to identify appropriate resources (e.g. textbooks, internet) and to use them effectively.

6.Awareness of, and a commitment to follow, established good practice.

7.The ability to act with an appropriate sense of urgency.

8.The ability to maintain clear, comprehensive, accurate and structured records, in line with the requirements of the Code..