Non-practising Barristers and the Immigration Services Commissioner

A number of queries are arising over the status of non-practising barristers with respect to their rights to undertake immigration work. It is hoped that the following will clarify their status.

Section 84 of the Immigration and Asylum Act 1999 provides that only individuals registered with the Immigration Services Commissioner shall be permitted to offer immigration advice unless they are authorised to practise by a designated professional body or and under the supervision of someone so authorised. The Bar Council is an authorised professional body.

Barristers in independent practice and employed barristers are authorised to practice for these purposes under the same conditions that they are entitled to offer legal services generally.

Non-practising barristers (including pupils in their first six months) are not authorised to practise and, if they offer such services, must be registered with the Commissioner. It is arguable that barristers who have not paid their practising certificate fee are not authorised to practise either and should be registered.

A number of non-practising barristers were registered under paragraph 212 of the 6th edition of the Code of Conduct as offering legal services to the public. That rule contained a ban on representing clients in any court or tribunal. Some non-practising barristers were granted waivers of that ban to enable them to appear in certain Tribunals, including Immigration Tribunals and the Immigration Appeals Tribunal. It has been argued that this has given them an authorisation to practise for the purposes of the Act.

We believe that this argument is misconceived. The seventh edition of the Code of Conduct, which came into effect on 31 July 2000, takes a different approach to that of the previous edition. Under the current Code, non-practising barristers are placed in precisely the same position as lay people and, in particular, there is no prohibition on them exercising the rights of audience of lay people in tribunals and elsewhere provided that they do not hold themselves out as barristers. Thus any waivers which permitted barristers to appear in the Immigration Appeal Tribunal or the Immigration Tribunal became redundant on 31 July 2000. Even if it could be argued that there was some express authorisation under the sixth edition, that authorisation lapsed when the new Code came into effect because it was unnecessary.

Paragraph 1106 of the seventh edition provides transitional arrangements covering those who were registered with the Bar Council under paragraph 212. In effect, that paragraph allows such people to continued to use the title “non-practising barrister” provided that they continue to comply with sub-paragraphs (b) – (e) of paragraph 212 (which dealt with insurance and acting only in cases where they are competent). The transitional arrangements did not carry forward the prohibition on advocacy which was waived in certain cases under the 6th edition because the new approach to advocacy rendered it unnecessary.

In our view, paragraph 1106 does not provide any authorisation to offer immigration advice either. While it entitles non-practising barristers to offer legal services to the public using the title “non-practising barrister”, it contains no authorisation to undertake work which is restricted under the Immigration and Asylum Act (or, indeed, any other). Indeed, the very fact that such barristers are described and known as “non-practising” barristers suggests that there cannot be any authorisation to practise from the Bar Council.

In short, unless the barrister concerned has a practising certificate and is practising in ways permitted by the Code, he or she will need to be registered with the Office of the Immigration Services Commissioner if he or she wishes to offer immigration advice or representation.