The OISC and Barristers
Published 12 June 2017
© Crown copyright 2017
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Section 84(2) of the Immigration and Asylum Act 1999 (IAA 1999) as amended, allows persons to provide immigration advice and services without being regulated by the OISC if they are authorised to practise by a Designated Qualifying Regulator (DQR). This includes barristers regulated by the Bar Standards Board (BSB), as the BSB derives its regulatory authority from the General Council of the Bar, a DQR.
1. Barristers that do not require OISC regulation
Where a self-employed barrister holds a current practising certificate and is working in a set of chambers, or as a sole practitioner, the barrister is regulated by the BSB. In this case, the barrister does not need to apply to the OISC for regulation.
In some circumstances, a barrister may supervise another person, in which case that person may be a ‘qualified person’ under the Act. In this situation, the person being supervised by the barrister does not need to be registered with the OISC.
In addition to regulating individual barristers, the BSB authorises and regulates entities, which may employ barristers or other lawyers to provide reserved legal activities and immigration advice and/or services. In this case, neither a practising barrister who works in the entity, nor the entity itself needs to be registered with the OISC, as they are both regulated by the BSB. Other individuals working in a BSB authorised entity can be a ‘qualified person’ under the Act if supervised by a barrister. Neither the entity, the individual barrister nor any person supervised by the barrister needs to apply to the OISC for regulation.
2. Barristers that may require OISC regulation
2.1 Employed barristers who work in an entity regulated by another approved regulator
Entities which are authorised by another DQR may employ barristers. If the entity is authorised by the Solicitors Regulation Authority (SRA) it will be regulated by the SRA to provide those services and neither the employed barrister nor the SRA-regulated law firm will need to be registered with the OISC. If the entity is not a ‘qualified person’ (i.e. regulated by a DQR that is entitled to do so under the IAA 1999) it is likely that it will need to register with the OISC and should contact the OISC if it wishes to do so. If an entity is a ‘qualified person,’ a barrister can supervise a non-qualified person working within it.
2.2 Employed barristers who work in a non-authorised entity
An employed barrister in a non-authorised entity is able to supply immigration legal services in the ways outlined in the BSB Handbook at rS38-39. The BSB Handbook prevents employed barristers in non-authorised entities from supplying legal services to members of the public, unless it is free of charge (or they work for a Legal Aid Agency). If the entity is providing immigration advice and/or services to the public it is unlikely that the entity will be a ‘qualified person,’ and may therefore need to be registered with the OISC.
The OISC requires non-authorised entities providing immigration advice and/or services to the public to be registered with the OISC. Therefore, if the entity is not authorised or otherwise registered with the OISC, it would not be appropriate for a barrister (or someone supervised by them) to provide immigration advice and/or services to the public through that company. If in doubt, a barrister should seek advice from the OISC.
2.3 Barristers who work in Legal Advice Centres on a voluntary or part-time basis, as outlined in rS41 and rS42 in the BSB Handbook
Barristers working in Legal Advice Centres on a voluntary or part time basis are treated for the purposes of the BSB Handbook as if they were employed by the Legal Advice Centre, and are able to supply legal services to clients of the centre.
The centre will be considered a Legal Advice Centre if it employs or has services of one or more solicitors conducting work pursuant to rule 4.16 of the SRA Practice Framework Rules 2011, or has been and remains designated by the BSB as suitable for employment or attendance of barristers.
If the barrister is employed by the centre (so that the services are being provided by the centre as an entity rather than the barrister in a self-employed capacity) it is likely that the body will need to be authorised by the OISC for barristers (or anyone supervised by them) to be able to provide immigration advice and/or services. If in doubt, a barrister should seek advice from the OISC.
If the barrister is volunteering through a Legal Advice Centre but taking instructions directly in a self-employed capacity, rather than through the centre, then they would be treated as a self-employed barrister (see above).
3. NOTE:
Employed barristers must be satisfied that the entity is entitled to provide immigration advice and services. This may involve the entity being registered with the OISC. It is a criminal offence to provide or offer to provide immigration advice and/or services without being regulated by the Commissioner (or other body as defined in Section 82(2) of the Act). Failure to register where required may be a breach of the BSB Handbook.