Decision: The appeal is Dismissed
The decision of the Respondent dated 9 August 2023 is confirmed.
REASONS
The decision under appeal
- The Office of the Immigration Services Commissioner (OISC) decided on 9 August 2023 to refuse the application made by Simon Barr Immigration Law ("SBIL") on behalf of the Appellant to raise his level of registration to provide immigration advice and services from Level 1 to Level 3.
Background to the appeal
- The Appellant was first authorised by the OISC following an application in December 2020. He was authorised on an exceptional basis to provide advice up to Level 3 at SBIL under the supervision of Simon Barr and in accordance with an agreed supervision plan for two 3-month periods from 15 December 2020 until 30 June 2021, later extended until 30 November 2021. He was subsequently approved and registered at Level 1 on 17 November 2021. Separately, Immigration & Employment NI, a firm of which the Appellant is the sole principal, was registered on 16 October 2023, and the Appellant was confirmed at that time to be registered at Level 1 for the purposes of his work within that firm.
- On 3 March 2023, the Appellant made an application to raise his level of registration for work within SBIL from Level 1 to Level 3 to the OISC. On 15 March 2023 he was invited to undertake the online competence assessment ("the test"), but he indicated in correspondence that he did not wish to take the test and believed that his experience and qualifications should be sufficient to demonstrate his competence to Level 3 standard.
- Between 16 March 2023 and 9 August 2023, there was correspondence between the Appellant and various employees of the Respondent about whether the Appellant was required to sit the test. The Appellant maintained his position that he did not wish to sit the test and that the evidence he had submitted should be sufficient to demonstrate his competence. The Respondent maintained its position that in order to demonstrate his competence to undertake Level 3 work the Appellant would need to sit the test.
- On 9 August 2023, the Respondent refused the Appellant's application to be registered at Level 3. In that letter, the Respondent stated: "Without Mr Scerrato undertaking the competence assessment, the Commissioner cannot be satisfied of his competence to provide immigration advice and services at level 3 at present and has decided to refuse the application." The Respondent therefore limited the Appellant's registration to Level 1. In making this decision it stated that it had taken into account the information which the Appellant had provided in support of his application and also his email dated 17 May 2023 in which he raised public law arguments as to the OISC's failure to implement EU rules about the recognition of his professional qualifications and their continuation under the EU Withdrawal Agreement as well as the legality of the competence assessment process.
Appellant's grounds of appeal
- The Appellant filed an appeal in the form GRC1 on 5 September 2023. He raised 5 grounds of appeal, the headline points of which were stated as follows:
"Schedule 6 does not confer to the Commissioner the authority to request the intrant [sic] into the profession or a person seeking a higher level of advisory capacity to sit an exam Ultra vires doctrine applies"
"Assessing the test as proper and lawful regulatory scheme pursuant to Schedule 5 and the Commissioner's regulative functions. Ultra vires doctrine still applies."
"Wrongful delegation of power ultra vires doctrine/fettered discretion"
"The OISC failed to implement a procedure for the recognition of the EU qualifications in conformity with the Directive 2005/36/CE and the Withdrawal agreement"
"unreasonable refusal to exercise the discretion in waiving the requirement to sit the exam. The OISC does not apply the decision recached in Ian Laing vs the Immigration Service Commissioner".
- By an order dated 10 January 2025 made by Judge Moan, and for reasons set out in that order, the grounds of appeal as written were replaced by the sole ground of appeal as follows:
"Whether the Appellant had demonstrated to the Respondent that he was competent for level 3 registration and whether the Respondent was correct to refuse to register him at level 3 on the basis of the evidence (now) provided and insisting on the taking of an online competence assessment."
- The appeal proceeds on this sole ground. There was no question about the fitness of the Appellant to be registered; the only issue was competence.
Procedural matters relating to determination of the appeal
- The Tribunal considered the bundle (485 pages) prepared by the Respondent (the "hearing bundle"). The Appellant was also ordered to provide a separate bundle exhibiting his statement and providing all the evidence on which he intended to rely in support of his submission that he is Level 3 competent (and accordingly does not need to undertake the test). He provided a bundle of 104 pages (the "competence bundle"). All parties confirmed that the Tribunal had all the necessary information to hear the appeal and that they had copies of both bundles available. The hearing was attended by the Appellant representing himself and Mr Mopas on behalf of the Respondent.
- The hearing took place remotely via video (CVP). The issue of whether there should be a face to face hearing, and in particular whether such a hearing should take place in Belfast, where the Appellant lives and works, was discussed at a case management hearing in January 2025, as a result of which the Tribunal ordered that the hearing should take place by CVP on the basis of cost to the taxpayer and the ability to facilitate an effective hearing through CVP. The Tribunal recorded on that occasion, and repeats in this decision, that the location of the parties should not indicate or influence appeal rights and no jurisdictional decision should be inferred from the hearing of the appeal remotely.
- The Tribunal heard oral evidence from the Appellant and Mr Simon Barr on behalf of the Appellant. It also heard oral evidence from Denise Williams, IAA applications officer and Deirdre Gilchrist, IAA deputy director of service delivery and Head of Regulation.
The legal framework
- Part V of the Immigration and Asylum Act 1999 regulates immigration advisers and immigration service providers,and establishes the Immigration Services Commissioner. The Act prohibits the provision of immigration advice or services by those who are not qualified to do so and contravention is an offence. A person may be qualified via their membership of a professional body (such as the General Council of the Bar or the Law Society of England and Wales) or by being registered.
- Schedule 6 paragraph 1(1) sets out that an application for registration by the Respondent must be made to the Commissioner in such form and manner, and be accompanied by such information and supporting evidence as the Commissioner may from time to time determine. The Respondent therefore has the power to set its own policy and application process for registration; details of this process are set out below.
- Paragraph 1(2) of Schedule 6 provides that when considering an application for registration, the Commissioner may require the applicant to provide him with such further information or supporting evidence as the Commissioner may reasonably require. The Respondent therefore has the power to decide what information it requires to be satisfied that someone is competent and fit for registration.
- Paragraph 2 of Schedule 6 provides that if the Commissioner considers that an applicant is competent and otherwise fit to provide immigration advice and immigration services, he must register the applicant
- Paragraph 2(2) of Schedule 6 provides that registration may be subject to certain limitations and may be made so as to have effect:
- Only in relation to a specified field of advice or services
- Only in relation to the provision of advice or services to a specified category of person
- Only in relation to the provision of advice or services to a member of a specified category of person; or
- Only in specified circumstances.
- Paragraph 3A of Schedule 6 provides that the Commissioner may vary a person's registration so as to make it have limited effect in any of the ways mentioned in paragraph 2(2).
- Schedule 5 of the Act gives the Commissioner the power, after consultation, to make rules with regard to the professional practice, conduct and discipline of registered advisers and their employees or those supervised by them in connection with the provision of immigration advice or services. The Commissioner publishes a Code of Standards which may be amended from time to time and is available on their website for inspection. Under the same schedule, it is the duty of any person to whom the Code applies to comply with its provisions in providing immigration advice or immigration services.
- The duty of the Commissioner is bolstered by section 83(5) of the Act which provides that
"The Commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services...are fit and competent to do so;"
- Section 87 of the Act allows for a person aggrieved by a decision of the Commissioner to appeal to the First-tier Tribunal. Section 88 provides that on appeal, the First-tier Tribunal may, if it allows an appeal, direct the Commissioner to: register the applicant or to continue their registration; make or vary the applicant's registration so as to have limited effect pursuant to paragraph 2(2) of Schedule 6; or to quash a decision recorded under paragraph 9(1)(a) of Schedule 5 and the record of that decision.
- in the case of Visa Joy Limited v OISC [2017] EWCA Civ 1473 the Court of Appeal determined that
- The process of evaluation by the Commissioner, and if necessary, on appeal by the Tribunal, is one of assessing fitness and competence. It is not narrowly confined solely to determining whether one or other specific 'charges' are established (para 40).
- An appeal to the First-Tier Tribunal under s 87 is to be a full appeal and not simply a review of the exercise by the Commissioner of his/her decision- making power. It is necessary for the First-Tier Tribunal to determine for itself whether the Commissioner's decision was right and to determine (as will normally be the case) whether the applicant is, at the date of the Tribunal hearing, fit and competent to provide immigration advice and services (para 42). In undertaking an appeal under s 87 the Tribunal will consider all relevant and admissible evidence, whether or not it was known to, or taken into account by, the Commissioner when making his own decision on the issue of continued registration. In doing so the Tribunal will not be bound by decisions made by the Commissioner on past complaints (para 43).
- The question for the First-Tier Tribunal on appeal is whether the appellant is considered to be competent and otherwise fit to provide immigration advice and immigration services (para 44).
- The Respondent changed its name on 16 January 2025 to the Immigration Advice Authority (IAA). The statutory basis and functions of the Respondent remain unchanged and the change of name does not affect this appeal.
The regulatory framework
- The Respondent has divided immigration advice and services into three levels depending on the type and complexity of the work involved. The competence requirements increase with the intricacy of the work.
- The three levels of immigration advice and services are as follows:
- Level 1 Advice and Assistance
- Level 2 Casework
- Level 3 Advocacy and Representation
- The Guidance on Competence document produced by the Respondent (2021), which begins at page 108 of the hearing bundle, sets out in detail at pages 20 to 23 of the document (hearing bundle pages 127-130) the measures of competence which the Appellant must demonstrate in order to be invited to sit the competence assessment examination. This Guidance confirms that:
- Level 3 work includes any work done following the lodging of the notice of appeal against refusal as well as the conduct of specialist casework, e.g. challenging existing case law and third country asylum cases. It requires a high level of knowledge of immigration law and practice, including a thorough understanding of relevant case law, human rights legislation and asylum law, where applicable.
- Only advisers at Level 3 are allowed to represent clients at bail and appeal hearings before an Immigration Judge. Those authorised in the category of Judicial Review Case Management (JRCM) are permitted to instruct counsel to represent their clients in Judicial Review matters.
- Work permitted at Level 3 includes the conduct of specialist casework, preparation and presentation of cases at the First-tier and Upper Tribunal (Immigration and Asylum Chamber), including drafting full grounds of appeal and representing clients. Advisers require specific authorisation to deal with JRCM matters.
- Only advisers specifically authorised by the Immigration Advice Authority (IAA) in the category JRCM may pursue Judicial Review as a remedy for their clients. They must instruct a barrister who is licensed by the BSB to litigate and the instructed barrister will be responsible for taking all formal steps in relation to the application. Advisers authorised in JRCM may only manage cases for clients who seek Judicial Review that relate to either 'Immigration' or 'Asylum and Protection' if they are also authorised in this category of work at Level 3. Page 8 summarises the work advisers authorised in this category may do. Further details of work advisers can and cannot do, can be found in the Commissioner's Practice Note on JRCM.
- Advisers at Level 3, in addition to the competencies required at Levels 1 and 2 in the categories for which they are authorised, must demonstrate a variety of competencies. The published competencies were set out in the hearing bundle pages 127-130 and the measures of competence which the Appellant must demonstrate in order to be invited to sit the test are set out in full at Annex 1 to this decision. An applicant must demonstrate, in summary, that they have:
- detailed knowledge of immigration, asylum and nationality law, rights and procedure;
- The appropriate level of skill and aptitude in interviewing, advising and drafting;
- Sufficient verbal and written advocacy skills to represent their clients before the First-tier and Upper Tribunal (Immigration and Asylum Chamber) effectively; and
- Excellent record-keeping and case management skills.
- All levels of adviser must adhere to the Code of Standards 2016 which sets out the standards that the Respondent's regulated advisers and organisations must meet.
- The process for application to be registered at a particular level has several stages. The key one for the purpose of this appeal is that applicant advisers will be invited to sit the Respondent's competence assessment once they have completed a Disclosure and Barring Service check and submitted a new adviser competence statement that meets the necessary experience and training requirements. There are separate assessments for each of the three levels.
- The Guidance goes on to say "Each new adviser will normally be invited to sit a level 1 competence assessment as part of an overall assessment of his or her competence. You may also be asked to sit an assessment at levels 2 and 3 (please note this only applies to applicants wishing to work at Level 2 or 3)"
- At page 9 (hearing bundle page 166) the Guidance states "The OISC will aim to make a decision on your application within four months from the date of submission. This timeframe is to allow for any amendments that you may need to make to your application, the requirement to supply any additional documentation and the successful completion of the OISC Competence Assessment Process... Should you fail to attend the online assessment event that you have been scheduled to attend, then this will be counted as a fail. The Commissioner will only consider exceptional circumstances for not attending the assessment and evidence will be requested." Further information about the online assessments appears at page 10 of the document (hearing bundle page 167).
- At page 11 of the document (hearing bundle page 169) the guidance sets out two exemptions from having to sit the competence assessment. The first of these is for prospective advisers who are
- Seeking authorisation only in the category of Asylum and Protection; and
- Have successfully completed the Law Society Immigration and Asylum Accreditation Scheme (IAAS) examinations and gained IAAS accreditation.
- In order to be exempt from taking the assessment at Level 3, the minimum requirement is that the person be an IAAS senior caseworker or supervisor.
- The second exemption is for applicant advisers who are qualified as a Chartered Institute of Legal Executives (CILEx) Immigration Practitioner and can show evidence of valid continuing accreditation.
- The Appellant's competence statement (hearing bundle page 76) makes it clear at page 78 that he is not seeking registration for Asylum and Protection. He also does not rely on CILEx immigration practitioner qualification. Neither of these exemptions therefore apply.
Analysis of evidence
- The Appellant's position is that that the evidence he has submitted should be sufficient to demonstrate his competence without him needing to take the test. The Appellant provided a bundle and statement with all the evidence on which he wished to rely to support his position.
- In his oral evidence, the Appellant said that he took a Level 3 test in February 2022, but was notified shortly after the test, on 10 March 2022, that the online invigilation, known as "proctoring", for the test could not be uploaded. He said that he had had contact with the Respondent at that time and was invited to have a remote session to assess his PC and try to retrieve his assessment, but he declined this because he had client confidential material on his PC. He said he had had issues with connection and speed while attempting the Level 1 test previously and had attempted the Level 1 test three times, passing on the third attempt.
- The Appellant said that there was no official position from the Respondent before the Tribunal on whether his competence had been demonstrated by the evidence he had submitted, describing the analysis in the second witness statement of Ms Gilchrist as her personal opinion. He described the various degrees and qualification processes he had undertaken in Italy, Spain, Scotland and Northern Ireland, including the exams that he had taken.
- He disagreed that the process of the test provided a clear and consistent yardstick to measure competence for an adviser to raise their level. He maintained that there were other ways of assessing competence, such as assessing evidence provided. He said he was never asked for further information about his application after submitting his written competence statement, just invited to sit the test.
- The Appellant took the Tribunal through his bundle and highlighted several documents which he said demonstrated his knowledge of immigration tribunal processes and addressed the skills required, including a list of cases on which he had worked and other cases which he had observed. He said that his legal experience in the UK and overseas was sufficient to demonstrate his qualification for registration.
- He confirmed that he is spending 1-2 days a week working for SBIL when he is in Northern Ireland (usually 3 weeks a month). The remainder of his time is spent on his own legal practice in Valencia and on his own immigration practice based in Belfast.
- Mr Barr in his oral evidence described his working relationship with the Appellant. He explained that he is the only Level 3 capable practitioner in SBIL, but that the Appellant assists with Level 1 work alongside two other advisers. He noted that the Appellant had a good understanding of EU law and practice and found this invaluable. He acknowledged the Appellant's professionalism and stated that he considered it would be in the interests of his business and more widely in the interests of clients seeking assistance with complex cases and appeals in Northern Ireland if the Appellant was to be registered at Level 3.
- Ms Williams in her oral evidence confirmed that there had been a problem with the proctoring data for the Appellant's Level 3 assessment in February 2022 being uploaded. She said that the test is invigilated by webcam, but in this instance the video had not been recorded. When this happens it affects the candidate, as without evidence of invigilation the test is deemed invalid. Although the test would have been marked on an anonymised basis, those results are not released to the candidate because the test is invalid. She said that she was not aware of any lawyer qualified in an EEA state seeking registration with the Respondent who had not had to sit the test.
- Paragraph 14 of the witness statement of Ms Williams states that prior to the UK exiting the European Union, lawyers from the EEA also needed to undertake the relevant OISC competence assessment if they wished to be registered under the Respondent's regulatory scheme.
- In her first statement Ms Gilchrist concluded (hearing bundle page 67) "All applicants are required to undertake the relevant OISC Competence assessment unless an exception applies. As the appellant refused to undertake the OISC Level 3 competence assessment the Appellant was not able to satisfy the Respondent that he is competent to provide immigration advice and/or services at OISC level 3."
- The second witness statement of Ms Gilchrist at paragraph 15 onwards provides a detailed analysis of the evidence which the Appellant has provided in the competence bundle and explains her conclusion that the Appellant has not demonstrated that he is competent to provide immigration services advice and/or services on the basis of that evidence alone.
- In her oral evidence, Ms Gilchrist commented on her email dated 1 March 2023 (competence bundle page 104) and said that this did not indicate that the Appellant would be able to become registered without taking the test, but that he appeared to have sufficient skills and aptitude that meant it was likely he would be invited to sit the test. She said that there would be no cost for the Appellant to retake the test if he applied under the auspices of SBIL, but that there would be a cost if he pursued this through his own firm.
- She explained that she had been employed by the Respondent since 2000. She said that the test was introduced in around 2004 for those seeking registration under the Respondent's scheme. Before that time, applicants would submit evidence and competence statements and caseworkers decided whether or not applicants had demonstrated sufficient competence to proceed. This was difficult to do consistently and relied heavily on the judgment of the caseworker. The test was designed to be an objective and more accurate barometer of expertise and skills, as the test was designed and administered by an immigration specialist company.
- She explained that the Respondent publishes guidance on competence and a breakdown of the knowledge and skills required. There is a basic threshold for proceeding to take the test; without sufficient experience to have a chance of passing a candidate is unlikely to be invited to take the test. She said that the Respondent places a lot of weight on the test because it is an objective and consistent way of sampling a candidate's knowledge, experience and ability to apply UK immigration law.
- She went on to explain that there are three aspects to competence; knowledge, skills and abilities. Based on the Appellant's competence bundle and his previous experience in the UK and abroad, she was confident that the Appellant was likely to have the skills, abilities and aptitude to be registered, but that the bundle did not demonstrate the breadth of knowledge required to satisfy the Respondent as to the Appellant's competence to undertake Level 3 work without taking the test. She said that the Respondent would be looking for an applicant to demonstrate that they had a high level of knowledge, for example by being able to show that they had dealt with all the types of cases that a Level 3 adviser would need to handle. She could not say that all those areas were demonstrated in the Appellant's evidence, so he was invited for the test to give him an opportunity to show this.
- She confirmed that the minimum requirement set out on page 196 of the hearing bundle, that a Level 3 adviser should have at least 18 months full time or the equivalent part-time experience of providing UK immigration advice and services, which should include six months full time equivalent of Level 3 work, was the threshold required to be considered for invitation to take the test. She reiterated that it is the test, not years of experience or numbers of cases worked on, which the Respondent relies on to determine that a candidate shows the standard of knowledge required for registration objectively and consistently. She described the Appellant's experience, both orally and in her witness statement as impressive, but said that it does not "tick every box" in terms of demonstrating the required breadth of Level 3 knowledge.
- Ms Gilchrist commented that in terms of evidence of training, she did not have enough information about the courses undertaken by the Appellant to determine whether these demonstrated the required standard of knowledge. She had given him the benefit of the doubt, but was not able to verify the syllabus or level of such training in every case.
- She described the exceptional circumstances where SBIL had sought, and been granted, permission for the Appellant to conduct Level 3 work under Mr Barr's supervision, which included personal and medical circumstances of Mr Barr, the UK's exit from the European Union in 2021 ("Brexit"), availability of Level 3 assessments and shortage of qualified advisers in Northern Ireland. When determining whether this arrangement was appropriate in the short-term , she had concluded that the Appellant's professional background meant that he posed a low risk, particularly as Mr Barr retained responsibility for work done under his supervision. She agreed that being low risk in those circumstances was not the same as being competent.
- She said that EU lawyers seeking registration under the Respondent's scheme both before and after Brexit would be required to take the test and this had not changed. Solicitors and other legal professionals who sought registration through the Respondent unless exempt, would also be required to undergo competence testing.
Findings of the Tribunal and decision
- The sole question for the Tribunal is whether the Appellant had demonstrated to the Respondent that he was competent for Level 3 registration and whether the Respondent was correct to refuse to register him at Level 3 on the basis of the evidence provided and insisting on the taking of an online competence assessment.
- The Tribunal is not concerned with the legality or otherwise of the Respondent's process, but what the process was and whether it was correctly applied in this case. That said, in terms of what the process is, it is common for regulatory competence schemes to be made up of both the statutory framework and the policy made under that statutory framework which provides further detail of how the scheme works in practice. We did not agree with the Appellant that because the taking of the test was not itself prescribed by the statute it was unlawful; in our view the provisions of Schedule 6 paragraph 1 of the Immigration Act 1999 clearly state that the Commissioner may determine what form and manner an application for registration must be made, the information and supporting evidence required and what further evidence may be needed. The Commissioner therefore has the power to set its own policy and guidance around this. It has done this and published it, including on its website, in the form of its Guidance on Competence, Code of Conduct and guidance on the registration process and competence assessment process, copies of which were provided in the hearing bundle.
- We found Ms Gilchrist to be an honest, consistent and helpful witness and were persuaded by her account of how and why the test had evolved, both in her written and oral evidence. We find that the test was introduced in 2004 and that prior to its introduction decisions for registration were made on the basis of portfolios of evidence submitted by candidates as to their experience, training and skills. We also find, on the basis of Ms Gilchrist's evidence and the published material from the Respondent about the process of application for registration, that the process had several stages. The preliminary stage was for an applicant to submit a written Competence Statement with supporting evidence. This would then be analysed by caseworkers such as Ms Williams and if the Competence Statement demonstrated sufficient experience that the candidate would likely be able to pass the test, then the candidate would be progressed to the next stage and invited to sit the online test. The test is an important yardstick for demonstrating knowledge and skills which is administered by an external organisation, not by the Respondent. We understood from Ms Gilchrist that it is designed to test both knowledge and the required skills such as drafting under time pressure, replicating the experience of doing so in practice.
- We were persuaded by the evidence of Ms Gilchrist and Ms Williams, which was consistent, that if a candidate sought registration through the Respondent's scheme, then they would need to sit the test. Both were clear that this had been the process both before and after Brexit and Ms Williams said was not aware of any exceptions to this where a candidate who was a qualified lawyer in an EEA Member State was permitted not to take the test and to be registered on the basis of their portfolio evidence alone.
- Until 2004, it was possible for EEA lawyers who were authorised by a body regulating the legal profession in another Member State to be qualified persons for the purpose of providing immigration advice and services. However, section 84(2) of the Immigration Act 1999 was amended with effect from 1 October 2004 by Section 37(1) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 to remove this possibility. From October 2004 onwards, Section 84(2) was amended so that a person in an EEA state who was the equivalent of a registered person, or authorised by a designated professional body (ie in this instance a legal profession regulator) to practice or by a person authorised to provide immigration advice or immigration services by a designated qualifying regulator was a qualified person to provide immigration services and advice. Many EEA countries like Spain and Italy specifically regulated the provision of immigration services. Whilst the Appellant contended he fell within this category of exemption, this was not agreed by the Respondent nor was it within the scope of this appeal. Nor is there any evidence before the Tribunal that the Appellant was separately authorised to carry out immigration work in addition to his legal qualification in any of the jurisdictions in which he practices. In any event, both parties agreed that this exemption to registration was removed by the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 regulations 1(2) and 11(6)(a) with effect from 31st December 2020. The legality of the process and any diminution of rights following Brexit is a matter for judicial review and outside the scope of this appeal.
- Had the Appellant wished to be a qualified person to provide immigration advice and services through his authorisation by the Law Society of Scotland and Law Society of Northern Ireland, for example, if he was working within a law firm on immigration cases, there would have been no need for him to apply to be registered by the Respondent. However, having decided to seek registration through the Respondent's scheme, the Appellant needs to demonstrate his competence in the way prescribed by the Respondent. Put simply, if you want to obtain the badge, you need to take the test. The concept of examination for accreditation to undertake immigration work had indeed been replicated by the Law Society since 2004 and immigration practitioners including qualified solicitors are required to pass written examinations on a regular basis in order to be accredited to carry out immigration work under a legal aid contract.
- Returning to the Appellant's application, it is common ground between the parties that the Appellant's Competence Statement, which he completed on 3 March 2023 (pages 76-84 of the hearing bundle) demonstrated sufficient competence for the Appellant to be invited to sit the test. Accordingly, he was invited to do so by email on 15 March 2023.
- The Appellant confirmed that he had in fact sat the Level 3 test in February 2022, although he said that the test had been lost. We find that Ms William's account, which is consistent with the written evidence, is more accurate because she explains that it was not the test itself that was lost, but the fact that the online proctoring had not been uploaded successfully. We consider that the online proctoring is an important tool to ensure that the person taking the test is who they say they are and accept the evidence of Ms Williams, because of her experience in this area, that without the proctoring the test is invalid.
- The Appellant confirmed that his experiences of the 2022 Level 3 test and of technical difficulties during one of his attempts at the Level 1 test in 2021 contributed to his unwillingness to sit the test in 2023. It does not, however, in our view, negate the need to take the test.
- The competence test was not the only requirement for registration, but it was the only one designed to fully assess The Respondent's published materials make it clear that failure to complete or pass the test will result in refusal of registration. We find that the Appellant understood this at the point when he undertook the test in 2022, so there is no reason to suppose that he did not have the same understanding when he applied for registration in 2023.
- The Respondent published a clear statement of the competences required for a Level 3 registration in its Guidance on Competence in 2021. We accept the evidence of Ms Gilchrist that while the Appellant's experience in the UK and elsewhere outlined in his Competence Statement and supporting documentation clearly demonstrates that he has sufficient competence to be invited to sit the test, there are a number of key competences, particularly around knowledge of UK immigration law and practice, which are not demonstrated by this evidence. We noted Appellant's assertion in his oral evidence that Level 3 was just about courtroom presentation and not complex. The competences listed by the Respondent appear to contradict this.
- For example, while the Appellant has included in his evidence a list of the cases he has observed and a non-exhaustive list which he has worked on, of which three are Level 3 cases, these are necessarily high-level summaries. Among other things, they do not demonstrate, for example, that the Appellant has the required breadth and level of knowledge of the types of evidence needed to support complex cases, how to deal with precedent cases or the relevant time limits of appeals. Nor does it demonstrate what the Appellant himself did in relation to the cases he has listed. It was important for the Respondent to assess his responses to given case studies, and to evaluate his advice, understanding of the issues and drafting skills.
- The two posts the Appellant included in his competence bundle (at page 90 and at page 92), far from being evidence of his knowledge of immigration law, are evidence of his lack of knowledge. The post at page 92 in particular shows a lack of understanding of one of the most fundamental 'building blocks' of immigration law namely section 3C leave. It is also troubling that the question was posted after the Appellant had researched the matter and that two of the three options he suggested (namely submitting an indefinite leave to remain application in country or advising the client to exit the UK and apply for indefinite leave to enter) would both have been costly to the client and doomed to failure. This is a good example of why knowledge is best tested through the carefully crafted casework scenarios found in the competence test.
- The Appellant asked the Tribunal to take note of the way he had conducted himself throughout the appeal as evidence of his competence. That was not a finding that the Tribunal could make for a number of reasons. First, his conduct during the appeal process did not demonstrate his expertise in immigration matters or indeed the other skills as they relate to that area of law. Secondly, the regulator is an expert regulator who is best placed to assess expertise and weight must be placed on the regulator's evaluation as a starting point. In this case, the lack of competence test restricted the regulator's evaluation of his knowledge and practical skills. It was difficult for the Tribunal to consider them afresh, absent the test.
- For these reasons, the Tribunal concludes that the Appellant had not demonstrated to the Respondent that he was competent for Level 3 registration through submission of his Competence Statement and supporting evidence alone. The Respondent is entitled to determine what evidence it requires to be satisfied as to competence, and it is within the Respondent's power to make the test a compulsory part of the process for registration. As the Appellant did not complete the test and has therefore not satisfied the Respondent as to his competence, we conclude that the Respondent was correct and entitled to refuse to register him at Level 3 on the basis of the evidence provided and to insist on the taking of an online competence assessment.
- We therefore dismiss the appeal.
Signed: Judge Harris
Date: 17 April 2025
ANNEX 1 COMPETENCIES FOR LEVEL 3
(taken from the Statutory Guidance on Competence issued by the Respondent in 2021)
Advisers at this level, in addition to the competences required at Levels 1 and 2 in the categories for which they are authorised, must demonstrate the following:
Knowledge
- Detailed knowledge of immigration, asylum and nationality law, including:
• grounds for complex applications in the areas of work in which advice/services are provided
• UKVI and the First-tier and Upper Tribunal (Immigration and Asylum Chamber) practice in the consideration of appeals and complex cases and the relevant time limits for appeals
• The UKVI concessionary/ discretionary policies in complex cases
• Grounds of appeal to the First-tier and Upper Tribunal (Immigration and Asylum Chamber), including human rights grounds.
• The consequences of a successful appeal including the possibility of further challenges by UKVI.
- Detailed knowledge of relevant rights of appeal, time limits and procedures at the First-tier and Upper Tribunal (Immigration and Asylum Chamber) up to, and including, full hearings before the First-tier and Upper Tribunal (Immigration and Asylum Chamber), and sufficient awareness of rights and procedures in relation to Judicial Review to make appropriate referrals to a solicitor or IAA adviser permitted to carry out Judicial Review Case Management (JRCM).
- Where an adviser is authorised to carry out JRCM work, knowledge of processes related to Judicial Review including the Upper Tribunal Rules and Practice Directions/Statements. Knowledge of the substantive law principles that form the basis of Judicial Review challenges is also required as is knowledge of the professional obligations and rights of counsel and the professional rules on the instruction of counsel. Advisers operating in this area will be expected to be familiar with, and acting in accordance with, the Commissioner's Practice Note on JRCM.
- A sufficiently thorough knowledge of relevant case law to be able to identify and make good use of appropriate case law precedents to support a client's case, anticipate and respond effectively to the citing of precedents by the Home Office and to do so during a hearing, where necessary. Advisers should also have sufficient knowledge and skill to be able to challenge existing case law, where appropriate.
- A sufficiently thorough knowledge of the types of evidence needed to support complex cases and appeals up to the First-tier and Upper Tribunal (Immigration and Asylum Chamber) and beyond if permitted and how to obtain such evidence.
- A sufficiently thorough knowledge of the European Convention on Human Rights, the Human Rights Act 1998, the Equality Act 2010 and other relevant law relating to immigration and asylum cases in order to be able to make appropriate and effective representations using this legislation in complex cases and appeals.
- clear understanding of the limits of their knowledge and competence, and an understanding and sensitivity as to when a client's case has to be transferred to another IAA adviser or a solicitor. This means that a Level 3 adviser will need to have a general knowledge of immigration, asylum and nationality law and procedure to ensure that a client can be referred on for advice in areas in which the adviser is not approved at Level 3.
Skills and aptitudes
- Interviewing and advising
• The ability to explain clearly to a client in plain language the progress of their case, including any appeal, the outcome of a hearing, the implications for the client and the options open to them. Also to be able to advise on the merits of further appeals or Judicial Review (including the risks related to costs and time) and take clear instructions from the client as to how they wish to proceed.
- Drafting
• The ability to draft in clear, pertinent and effective English (making use of case law and human rights legislation, where appropriate), the following
- Complex letters, statements and representations
- Full grounds of appeal to the First-tier and Upper Tribunal (Immigration and Asylum Chamber)
- Skeleton arugments and other relevant documents for First-tier and Upper Tribunal (Immigration and Asylum Chamber) cases
- Instructions to a barrister or member of the Faculty of Advocates
- Statements and other relevant documentation to support Judicial Review applications.
- Advocacy skills
• Where the adviser wishes to represent clients at hearings before the First-tier and Upper Tribunal (Immigration and Asylum Chamber), sufficient verbal and written advocacy skills to do so effectively, including the ability to:
- make clear, cogent oral and written representations in the course of legal proceedings
- identify when it is appropriate to apply for an adjournment of a hearing and argue effectively for it
- identify the salient points in an argument and respond to them effectively in the course of a hearing, where necessary
- re-evaluate evidence in the light of responses or other information from UKVI or a change in country conditions or new case law
- anticipate and respond effectively to the citing of precedents by UKVI in the course of a hearing, where necessary
- challenge existing case law, if appropriate
- make effective and appropriate representations in appeal proceedings using the European Convention on Human Rights, the Human Rights Act 1998, the Equality Act 2010 and other relevant international law relating to immigration and asylum cases
- accurately assess the merits of taking forward an application for Judicial Review or referring a case to a solicitor or authorised IAA adviser for judicial review proceedings.
• While Level 3 advisers approved in the category of JRCM are permitted to manage the client's case through the Judicial Review process, they must instruct appropriate counsel to undertake both the litigation and advocacy elements of the application. They are not permitted to undertake any of the formal steps required by the Judicial Review Process. The Legal Services Act 2007 governs the rights of audience in Judicial Review matters. This Act denies a right of audience to those who are not legal professionals except in certain circumstances, such as where a judge has allowed a right of audience as a McKenzie Friend. IAA advisers, who by definition provide immigration advice and/or services in the course of business, must not seek to appear as a McKenzie Friend.
- Record-keeping and case management
• Excellent record-keeping and case management skills, including the ability to:
• collate a well-organised and well-presented hearing bundle
• manage a busy schedule, including a diary of required attendances at hearings, and deal effectively with conflicting priorities while protecting the client's best interests
• maintain a clear, detailed and accurate record of case conferences with counsel and the client.
