A sore point

It is a subject approached by many immigration practitioners with consternation '“ legal representation under the UK Border Agency's Points Based System.

On 29 February 2008, the government launched a new five-tier system in line with Labour's immigration and asylum strategy geared towards keeping a close check on migrants coming to the UK and those already here by restricting qualification criteria. This involves imposing an immigration burden (to select low-risk migrants) on employers and education institutions (sponsors), and removing discretion from the decision-making process.

With the introduction of the Points Based System (PBS), the sponsorship system applicable to three out of the five tiers, and its staggering roll-out through to 2010, the role of immigration practitioners has been redefined in line with the needs of migrants and sponsors. Amid fears that lawyers would be out of a job due to eligibility under immigration law being objectified (and appeals limited), practitioners have had to adjust and adapt alongside the fledgling scheme.

PBS allows sponsors to appoint legal representatives. To become a sponsor, an organisation would have to undergo rigorous compliance checks and lawyers could be asked to assist along the way. In the months preceding the introduction of the sponsorship system in November 2008, immigration practitioners began questioning their ability to act impartially on behalf of their clients in the face of stringent prevention of illegal working measures laden with civil and criminal penalties. The crux of the problem is that, under the agency's published codes on 'audits' of prospective sponsors, 'approved' lawyers will normally be accepted by the agency in lieu of visits and checks by immigration officials, but these audits must specify the prospective sponsors' immigration failings to date. Lawyers may find themselves acting for prospective sponsors but primarily serving the interests of UKBA.

Ethical concerns

Lawyers were also concerned with the effect this arrangement might have on such ethical issues as conflict of interest, confidentiality, duty not to mislead, independence, general client care and on their professional indemnity insurance. Duties owed to clients and to the agency suddenly came into stark contrast.

Nevertheless, the new system presented an untapped potential for work and immigration practitioners rose to the challenge in drawing up lists of services they could provide to would-be sponsors in anticipation of UKBA compliance audits.

However, the announcement that legal advisers would be able to produce audit reports in support of licence applications called their position into question as such reports would effectively replace the work done by visiting UKBA officials and turn lawyers into auditors whose responsibility went far beyond their mere advisory capacity.

In September 2008, UKBA published a list consisting of two City law firms which were dubbed the agency's 'trusted partners', implying exclusivity. Other firms looked on in dismay. Were lawyers now being asked to do the government's bidding? The announcement caused a furore among practitioners who became involved in exchanges with UKBA.

The offending list was taken down and, in the spirit of 'fairness' and 'transparency', a small number of firms were invited to meet with UKBA to assess their suitability to be included on an extended list of 'accredited' organisations. The matter was taken seriously by the Law Society who reacted quickly and wrote to the Head of Immigration Group at UKBA, underlining the primary concerns.

'The Law Society has serious concerns about the UKBA accrediting solicitors in relation to the Points Based System,' the letter said. 'As you know, solicitors practising in England and Wales are obliged to comply with the Solicitors' Code of Conduct 2007, which provides, amongst other duties, that solicitors must not allow their independence to be compromised and must act in the best interests of each client. The Society is interested in ensuring that solicitors will not be placed in a position where duties owed to their clients may potentially conflict with solicitors' interests in acquiring and maintaining accreditation.'

It is unclear what assurances have been provided to the Law Society by UKBA since then to alleviate practitioners' concerns. Nevertheless, following the initial assessment, a small number of organisations were included on the extended list prefaced by a foreword.

While the wording of the foreword does not explicitly state so, the fact that prospective sponsors can choose to rely on an audit report produced by one of the accredited firms, which will then be accepted in lieu of an on-site visit by UKBA officials, seems to imply that the responsibility for application checks has been shared out between would-be sponsors and legal advisers. Yet none is assumed by UKBA.

With the sponsorship system in its third trimester, the ethical position for lawyers remains tentative and has not been followed up to produce clarity in guidance. The lingering concerns for many immigration practitioners remain unresolved and their apparent reluctance to expose themselves to risk is demonstrated by their refusal to represent PBS sponsors.