What happens if a person receives poor professional advice in relation to their immigration application to UKVI?


What happens if a person receives poor professional advice in relation to their immigration application to UKVI?

What happens if a person receives poor professional advice in relation to their immigration application to UKVI?  Strict but helpful, Mr Justice Lane clarifies the position. George Mavrantonis, Barrister

Those who are allowed to give immigration advice in the UK are strictly regulated by law. Under the Nationality, Immigration and Asylum Act 2002 only three distinct groups of legal professionals may provide a migrant with immigration advice: barristers regulated by the BSB, solicitors regulated by the SRA, and certain legal advisers regulated by the OISC.

As with every profession, some immigration professionals may knowingly or unknowingly provide an applicant with poor advice. Several firms, some being prominent, have recently been closed down by their respective regulators for professional or other misconduct. This can bring about a destructive domino effect on the migrant’s application to the Home Office – even their future livelihoods. Every experienced immigration practitioner will say that one of the most frequent explanations given by Appellants in Court in an attempt to explain why they have made fatal errors in their previous applications is often the following: my legal adviser told me so. This isn’t adequate. But when does bad immigration advice become sufficiently bad?

The Upper Tribunal has recently provided useful guidance on this matter in an attempt to elucidate the position since the old case of BT (former solicitors’ alleged misconduct) Nepal v Secretary of State for the Home Department [2004] UKAIT 311 which was promulgated more than a decade ago. Mr Justice Lane, President of the Upper Tribunal (Immigration and Asylum Chamber), in Mansur (immigration adviser’s failings) Bangladesh v Secretary of State for the Home Department [2018] UKUT 00274 (IAC), explained how a migrant can succeed in Court if he believes to be a genuine victim of poor professional advice.

Alleged poor professional advice, Mr Justice Lane stresses, cannot give an Appellant a stronger form of family and private life than he would have otherwise enjoyed. This is because poor professional advice must be weighed against the public interest in maintaining effective immigration control. “A person who takes such advice will normally have to live with the consequences”, the Tribunal concludes.

Nonetheless there is an exception: this arises only if the legal professional’s regulator (BSB, SRA or OISC in this case) finds that the legal professional blatantly failed to follow the migrant’s instructions and as a result an application has been refused when it would otherwise have been likely to have been granted. By implication this would require the affected migrant to make a formal complaint directly to the legal professional’s regulator and the regulator to find there has been a “blatant failure” from the part of the legal professional. This, Mr Justice Lane emphasises, would constitute one of those “rare” though successful cases. Mansur is strictly speaking applicable only to family and private life appeals but one can see how it can directly intertwine with other streams of the immigration field, such as asylum and humanitarian protection.

 

The test is strict and the threshold is high, however the case offers a valuable insight to those migrants regressively affected by previous bad legal representation. It also demonstrates the importance of selecting a reputable and trustworthy service for your immigration applications. If you are worried you may have been a victim of rogue immigration advisers, look no further: our team of trusted solicitors and counsel at Fadiga & Co Solicitors is here to help.

 

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