Angles on immigration
Professional Practice column: some issues relevant to immigration and asylum practitioners – and also to others
The recent Update conference on Immigration and Asylum Law provided a valuable opportunity to meet members working in this niche and complex area of law and to explore practice issues pertinent to solicitors in this field.
A number of scenarios were discussed, and in particular the following example which will resonate with practitioners across a number of disciplines.
Who is your client?
A family arrives at your office – mum, dad, son and grandparents. The son has just turned 21 and the family is keen to apply for entry clearance for his wife, who the family has arranged for him to marry. They want all the documentation organised so that when they travel over for the wedding, they can apply for her visa immediately after the ceremony to bring her back to the UK.
This issue will not just occur in immigration matters – consider the disabled 19-year-old daughter whose parents arrive at the office with instructions for her future care, or the elderly grandmother who turns up with her well-meaning children and grandchildren all keen to help organise her affairs.
It can be tempting to hear only the loudest or most senior voice in a scenario like this, and to accept the well-intentioned directions from the entourage as your instructions, but they are not all your client. Rule B1.3 of the Practice Rules requires solicitors to “give independent advice free from external influences or personal interests”, and so it is important that you give the client, the person directly affected by the instruction, the opportunity to be heard.
As an immigration practitioner, remember also that you are subject to additional guidance. This guidance, which can be found at Section F, Division B: Immigration Practitioners, was introduced in 2004. This constitutes an amplification of the standard of practice that the Society considers essential for compliance with the conduct rules when undertaking immigration, nationality and asylum work, and contains best practice advice. The guidance may be taken into account by the Society, or others, in connection with the investigation and determination of complaints (including those made by third parties) alleging inadequate professional service and/or unsatisfactory professional conduct or professional misconduct, arising from immigration, nationality and asylum work.
A condition of the Division B guidance for Immigration Practitioners is to “ensure that the client fully understands the implications of any decision or proposed course of action”. That being the case, it is particularly important that in a scenario with multiple parties attending at the office, you find the opportunity to clarify the impact and consequences of a course of action being instructed.
A practical solution to this, if you do not do so already, would be to implement a policy where the actual client meets with the solicitor alone. The Society’s Vulnerable Clients Guidance (Section B) may also be of assistance here, as a way to help identify where a client may be subject to influence which could impact on the validity of the instruction.
If the family in the situation cited were, for example, to be resistant to an individual meeting with you in their absence, that might give rise for concern and for further review. Making opportunities available for individuals to meet with you at a different time might also be helpful.
Recently, a member shared an example where a female client always attended at her office with her father. Ultimately the client called to request a Saturday meeting with the solicitor. It transpired that the client had done so in order that she could attend at the office unseen and alone. As a result, the client was able to disclose to her solicitor that she had previously been married, but that her father had no knowledge of this. It was a significant disclosure without which the matter being dealt with would have been seriously affected.
Advice from the Professional Practice team can have a cautionary edge to it; this is not on the basis that solicitors should always assume the worst, but rather because a pragmatic and managed process will afford you the greatest protection if there were to be a complaint. It will also likely win you the respect of your clients, who will value the opportunity to be heard.
Coral Riddell is head of the Professional Practice team at the Society. She is a solicitor with more than 10 years in private practice, having previously worked in construction and engineering law and commercial dispute resolution. She is also a director with the Scottish Arbitration Centre
Thanks are extended to Jamie Kerr and to Shereen Shafaatulla for their valuable input and support to this article, and to the Professional Practice team.