Statutory guidance

Guidance on Competence 2021- Level 3 - Advocacy and Representation

Updated 1 July 2021

1. Work permitted at Level 3

Level 3 work includes any work done following the lodging of the notice of appeal against refusal as well as the conduct of specialist casework, e.g. challenging existing case law and third country asylum cases. It requires a high level of knowledge of immigration law and practice, including a thorough understanding of relevant case law, human rights legislation and asylum law, where applicable.

Only advisers at Level 3 are allowed to represent clients at bail and appeal hearings before an Immigration Judge. Those authorised in the category of Judicial Review Case Management (JRCM) are permitted to instruct counsel to represent their clients in Judicial Review matters.

Work permitted at Level 3 includes:

• conduct of specialist casework
• preparation of cases at the First-tier and Upper Tribunal (Immigration and Asylum Chamber), including drafting full grounds of appeal
• representing clients before the First-tier and Upper Tribunal (Immigration and Asylum Chamber)
• instructing a barrister or member of the Faculty of Advocates to appear at the First-tier and Upper Tier (Immigration and Asylum Chamber) where permitted through the Licensed Access or Direct Access Scheme
• where authorised in the category of JRCM, instructing a barrister (with permission to litigate and advocate) through the BSB’s Licensed Access Scheme to represent clients in Judicial Review matters in the Upper Tribunal and Administrative Court.

1.1 Work not permitted at Level 3

Only advisers specifically authorised by the OISC in the category JRCM may pursue Judicial Review as a remedy for their clients. They must instruct a barrister who is licensed by the BSB to litigate and the instructed barrister will be responsible for taking all formal steps in relation to the application. Advisers authorised in JRCM may only manage cases for clients who seek Judicial Review that relate to either ‘Immigration’ or ‘Asylum and Protection’ if they are also authorised in this category of work at Level 3. Page 8 summarises the work advisers authorised in this category may do. Further details of work advisers can and cannot do, can be found in the Commissioner’s Practice Note on JRCM.

1.2 Competence requirements

Advisers at this level, in addition to the competences required at Levels 1 and 2 in the categories for which they are authorised, must demonstrate the following:

Knowledge

1.Detailed knowledge of immigration, asylum and nationality law, including:

• grounds for complex applications in the areas of work in which advice/services are provided
• UKVI and the First-tier and Upper Tribunal (Immigration and Asylum Chamber) practice in the consideration of appeals and complex cases and the relevant time limits for appeals
• The UKVI concessionary/ discretionary policies in complex cases
• Grounds of appeal to the First-tier and Upper Tribunal (Immigration and Asylum Chamber), including human rights grounds.
• The consequences of a successful appeal including the possibility of further challenges by UKVI.

2.Detailed knowledge of relevant rights of appeal, time limits and procedures at the First-tier and Upper Tribunal (Immigration and Asylum Chamber) up to, and including, full hearings before the First-tier and Upper Tribunal (Immigration and Asylum Chamber), and sufficient awareness of rights and procedures in relation to Judicial Review to make appropriate referrals to a solicitor or OISC adviser permitted to carry out Judicial Review Case Management (JRCM).

3.Where an adviser is authorised to carry out JRCM work, knowledge of processes related to Judicial Review including the Upper Tribunal Rules and Practice Directions/Statements. Knowledge of the substantive law principles that form the basis of Judicial Review challenges is also required as is knowledge of the professional obligations and rights of counsel and the professional rules on the instruction of counsel. Advisers operating in this area will be expected to be familiar with, and acting in accordance with, the Commissioner’s Practice Note on JRCM.

4.A sufficiently thorough knowledge of relevant case law to be able to identify and make good use of appropriate case law precedents to support a client’s case, anticipate and respond effectively to the citing of precedents by the Home Office and to do so during a hearing, where necessary. Advisers should also have sufficient knowledge and skill to be able to challenge existing case law, where appropriate.

5.A sufficiently thorough knowledge of the types of evidence needed to support complex cases and appeals up to the First-tier and Upper Tribunal (Immigration and Asylum Chamber) and beyond if permitted and how to obtain such evidence.

6.A sufficiently thorough knowledge of the European Convention on Human Rights, the Human Rights Act 1998, the Equality Act 2010 and other relevant law relating to immigration and asylum cases in order to be able to make appropriate and effective representations using this legislation in complex cases and appeals.

7.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 transferred to another OISC adviser or a solicitor. This means that a Level 3 adviser will need to have a general knowledge of immigration, asylum and nationality law and procedure to ensure that a client can be referred on for advice in areas in which the adviser is not approved at Level 3.

Skills and aptitudes

1.Interviewing and advising The ability to explain clearly to a client in plain language the progress of their case, including any appeal, the outcome of a hearing, the implications for the client and the options open to them. Also to be able to advise on the merits of further appeals or Judicial Review (including the risks related to costs and time) and take clear instructions from the client as to how they wish to proceed.

2.Drafting The ability to draft in clear, pertinent and effective English (making use of case law and human rights legislation, where appropriate), the following:

• complex applications
• complex letters, statements and representations
• full grounds of appeal to the First-tier and Upper Tribunal (Immigration and Asylum Chamber)
• witness statements
• skeleton arguments and other relevant documents for First-tier and Upper Tribunal (Immigration and Asylum Chamber) cases
• instructions to a barrister or member of the Faculty of Advocates
• statements and other relevant documentation to support Judicial Review applications.

3.Advocacy skills

Where the adviser wishes to represent clients at hearings before the First-tier and Upper Tribunal (Immigration and Asylum Chamber), sufficient verbal and written advocacy skills to do so effectively, including the ability to:

• make clear, cogent oral and written representations in the course of legal proceedings
• identify when it is appropriate to apply for an adjournment of a hearing and argue effectively for it
• identify the salient points in an argument and respond to them effectively in the course of a hearing, where necessary
• re-evaluate evidence in the light of responses or other information from UKVI or a change in country conditions or new case law
• anticipate and respond effectively to the citing of precedents by UKVI in the course of a hearing, where necessary
• challenge existing case law, if appropriate
• make effective and appropriate representations in appeal proceedings using the European Convention on Human Rights, the Human Rights Act 1998, the Equality Act 2010 and other relevant international law relating to immigration and asylum cases
• accurately assess the merits of taking forward an application for Judicial Review or referring a case to a solicitor or authorised OISC adviser for judicial review proceedings.

While Level 3 advisers approved in the category of JRCM are permitted to manage the client’s case through the Judicial Review process, they must instruct appropriate counsel to undertake both the litigation and advocacy elements of the application. They are not permitted to undertake any of the formal steps required by the Judicial Review Process. The Legal Services Act 2007 governs the rights of audience in Judicial Review matters. This Act denies a right of audience to those who are not legal professionals except in certain circumstances, such as where a judge has allowed a right of audience as a McKenzie Friend. OISC advisers, who by definition provide immigration advice and/or services in the course of business, must not seek to appear as a McKenzie Friend.

4.Record-keeping and case management

Excellent record-keeping and case management skills, including the ability to:

• collate a well-organised and well-presented hearing bundle
• manage a busy schedule, including a diary of required attendances at hearings, and deal effectively with conflicting priorities while protecting the client’s best interests
• maintain a clear, detailed and accurate record of case conferences with counsel and the client.