West Law Report

Deemed practice is not immigration authorised

Posted in Times Law Report by mrkooenglish on October 19, 2008

From The Times
October 8, 2008
Deemed practice is not immigration authorised
Court of Appeal

Published October 8, 2008

Regina v K

Before Lord Justice Toulson, Mr Justice Andrew Smith and Judge Rogers, QC

Judgment August 14, 2008

A barrister without chambers who was deemed to be practising but not subject to the disciplinary rules of the Bar’s Code of Conduct was not entitled to provide immigration advice or services contrary to sections 84 and 91 of the Immigration and Asylum Act 1999.

The Court of Appeal, Criminal Division, so held in a reserved judgment when dismissing K’s interlocutory appeal from the rejection by by Judge Beddoe at Southwark Crown Court on February 29, 2008, that, as he fell within paragraph 206.1 of the Code of Conduct (8th Edition 2004) he was qualified under section 84 of the 1999 Act. By section 91, it was an offence to provide immigration advice or services in contravention of section 84.

K had been called to the Bar in the 1990s but was unable to obtain a place in chambers. He provided legal services for clients in various fields; he had appropriate professional indemnity insurance and had provided the requisite details of his activities to the Bar Council, also making his status clear to those with whom he dealt.

Paragraph 201 of the Bar Code of Cunduct, provides: “For the purposes of this Code: (a) a barrister practises as a barrister if he supplies legal services and in connection with the supply of such services: (i) he holds himself out or allows himself to be held out as a barrister; or (ii) he exercises a right which he has by reason of being a barrister…”

Paragraph 206.1 provides: “A barrister called before July 31, 2000 who is deemed to be practising by virtue of paragraph 201(a)(i) in England and Wales shall not be subject to the rules of this Code applying only to practising barristers…”

Mr David Gottlieb for K; Mr Peter Ratliff for the prosecution.

LORD JUSTICE TOULSON, giving the judgment of the court, said that K submitted that the effect of paragraph 206.1 was to permit a barrister in his position to supply legal services to clients using the description of himself as a barrister, albeit without a practising certificate and not fully regulated by the Bar Council, and that he was therefore authorised to act as he did for the purposes of section 84.

However, a person falling within paragraph 206.1 was not thereby authorised by the Bar Council to practise as a member of the profession whose members the Bar Council regulated. All that paragraph did was to disapply the regulatory provisions of the Code in relation to such a person, and so exempt him from potential disciplinary action under the Code for providing legal advice without a practising certificate.

There were many forms of legal advice which any person might give to others without breaking the law; and if, in providing legal services of a kind which anyone might lawfully provide to others, a person held himself out as a barrister, he did not breach the Code provided that he complied with paragraph 206.1; but that did not put him in the category of a person who was authorised by the Code to practise as a member of the Bar and therefore qualified for the purposes of section 84.

The relevant provisions of the 1999 Act were intended to ensure that those who provided immigration advice or services were subject to proper regulatory control, and K was not subject to such control by the Bar Council; it was the amenability to regulation referred to in the words of section 84(2)(b) “whose members the body regulates” which was important. It would not achieve the purpose of the 1999 Act if section 84(2)(b) were interpreted so as to include K.

As to the Code, the purpose of paragraph 206.1 was the more limited purpose of taking such a person outside the provisions of the Code. It was difficult to see how a responsible body would wish to authorise a person to perform services for which being a practising barrister provided legal eligibility while at the same time abdicating any regulatory control over the performance of such services.

Accordingly the judge’s ruling was correct. However, although K was not qualified to provide immigration advice or services his bona fides had not been questioned and the court emphasised that it saw no public purpose in continuing the criminal proceedings against him.

Solicitors: Rustem Guardian; Mrs Jacqueline Duff.

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