Immigration: criminal offence not to be regulated
People are avoiding regulation as immigration advisers by “purportedly acting as McKenzie Friends”, the Office of the Immigration Services Commissioner (OISC) has warned.
It said it was concerned that “those purporting to assist vulnerable immigration clients by claiming to be McKenzie Friends are effectively frustrating the will of Parliament by avoiding the legislative requirement to be regulated”.
Immigration and asylum advice and services are unique in that providers who are not lawyers are required by statute to be regulated. They must satisfy the Immigration Services Commissioner that they are fit and competent to provide such advice or services, and OISC specifically prohibits them from acting as McKenzie Friends.
In its response to the Judicial Executive Board’s consultation on McKenzie Friends, OISC said it was “very concerned that individuals are avoiding or may avoid regulation by purportedly acting as McKenzie Friends, whilst in fact providing immigration advice or services”.
It is a criminal offence to provide these services outside of regulation, and OISC said that in several prosecutions, defendants have claimed that they were acting as McKenzie Friends. “This has not yet been a successful defence, but it implies that judges are allowing McKenzie Friends to represent clients in some cases,” it said.
“In several cases, the involvement of a McKenzie Friend in an immigration or asylum matter has been concealed by an anonymity order. This prevents the OISC from contacting a litigant in person (LiP) in order to determine whether there may have been a criminal offence. It has not yet been possible to have any anonymity orders lifted.”
The consultation response said there should be a clear record of all McKenzie Friends appearing in the Immigration and Asylum Chamber.
“This will be necessary for the OISC to ensure that none of its registered advisers is acting as a McKenzie Friend and to determine which unregistered advisers are holding themselves out as McKenzie Friends.
“The OISC appreciates that this may be complicated by anonymity orders in immigration and asylum appeals. However, these should not prevent regulators such as the OISC from knowing who has appeared as a McKenzie Friend before the tribunal.”
In their responses last month, the Legal Services Board and Solicitors Regulation Authority both opposed the proposed ban on fee-charging McKenzie Friends.
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