On 23rd November 2022, the SRA published the key findings of its ‘Immigration and asylum thematic review” and new Guidance for Solicitors undertaking immigration work which drew on the review. In this article, we will look at the SRA’s findings and the implications of the new practice guidance for immigration law firms and practitioners.
Why Did The SRA Carry Out An Immigration And Asylum Thematic Review?
During 2022, the SRA has been conducting a review to understand the challenges faced by different segments of the immigration law sector and to “investigate the nature, extent and impact of any concerns”. The review was driven by an understanding that those who need to use immigration and asylum law services can be severely affected by poor-quality legal advice. The report looked at the quality of immigration law services, their supervision, and their complaint handling. The SRA did this by conducting an online survey of law firms providing immigration and/or asylum services, visiting 38 of those law firms and reviewing 76 case files, amongst other things. The SRA also consulted with:
- the Law Society
- the Legal Ombudsman
- the Office of the Immigration Services Commissioner (OISC)
- the Immigration Law Practitioners’ Association, and
- Refugee Action.
What Did The SRA Conclude About The Quality Of Service Provided By Immigration Firms?
According to the findings of the review, the SRA are satisfied overall with the quality of service being provided, but found some areas that could be improved:
- Most clients are given the opportunity to review and amend key documentation relating to their matter, although this was not always recorded
- Firms and fee earners had a good level of understanding of what makes a client vulnerable, although few firms noted this on the file
- The strengths and weaknesses of a client’s case are not always recorded on the file
- Firms could do more to help clients understand the strengths and weaknesses of their case and the options available to them.
Based on these findings, it is clear that the lack of quality record-keeping in certain areas is of particular concern. The SRA has published new guidance for immigration solicitors to resolve these concerns; for example, in relation to the strengths and weaknesses of cases, the guidance states, “You should provide your client with a realistic assessment of the prospect of success of their case and make sure that your client fully understands the strengths and merits of their case. You can do this by discussing this verbally, providing a written record of this and keeping a copy of the record on file”. In addition, in relation to vulnerability, the SRA’s guidance reminds fee earners to assess the support needs of clients (e.g. if they need the help of an interpreter and/or translator).
What Did The SRA Conclude About Law Firm Supervision?
In relation to supervision, the SRA found that firms practising immigration need stronger evidence that supervision is taking place. They found that:
- A significant number of fee earners did not keep an up-to-date training record – as the SRA point out, however, keeping a training record is not a mandatory requirement, but it provides a way for fee earners to show they are meeting their competence requirements
- There were concerns about the scope, recording of audits, and sharing of outcomes when it comes to ‘file audits’, a commonly used method of supervision
- Due to the higher workload of immigration Heads of Department, it may impact their ability to supervise others
- Some firms practising immigration law had not considered the link between effective supervision and the identification of potential learning and development needs.
On the matter of supervision, the SRA’s new guidance now reminds fee earners in this area that if they provide supervision to others, they are accountable for the work delivered by those being supervised. Supervisors are reminded to have regard for the SRA’s effective supervision guidance when supervising immigration work. They state that those supervising immigration work, amongst other things, must
- Have clear oversight of work being done while it is live, at all key stages.
- Be readily available to support the person doing the work.
- Be able to provide robust assurance that legal and regulatory requirements are being met.
What Did The SRA Conclude About Law Firm Complaint Handling?
With regard to how firms practising immigration law handle client complaints, the SRA found that:
- Most firms complied with the requirements set out in the SRA’s Code of Conduct to provide information relating to complaints.
- Some firms and immigration fee earners were reluctant to report misconduct
- Most firms and immigration fee earners did not know how to report a matter, even though they have a duty to do so.
- Most immigration firms did not think that clients faced any barriers in making a complaint.
- Firms and fee earners were generally able to identify how to overcome potential barriers to handling complaints.
The SRA’s guidance reminds solicitors and firms in the area of immigration to inform clients about their right to complain. It also reminds them to be sensitive to the fact that clients may be worried that raising a complaint may impact how the solicitor handles their case or progresses their application with the Home Office. In order to be sensitive to these concerns, they recommend:
- Using the services of an interpreter to explain the complaints process in the client’s own language
- Reassuring clients that making a complaint will in no way impact their case
- Building trust with clients so they feel they can make a complaint
- Engaging in constant communication with the client to explain the process and prevent any misunderstanding
The new guidance for law firms practising immigration law is not necessarily ground-breaking, but it does provide many useful reminders for immigration practitioners to ensure they are meeting their SRA duties and obligations. Interestingly, under its guidance on ‘Supporting the effective administration of justice’, the SRA does make it clear that law firms “should not charge fees to make applications that have no realistic prospect of success”. It does not, however, explain what it means by “realistic prospect of success”. The SRA has now committed to a further review in the next 12 to 18 months to assess the impact of its new guidance on immigration firms and practitioners.
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