Deciding the question
23. In the meantime , the Procedure Rules to which we referred in paragraph 13 above have been replaced a number of times. Since the coming into force of the 1999 Act, the relevant provisions in the case of the Upper Tribunal are in rule 11(1), which, by reason of the definitions of ‘asylum case’ and ‘immigration case’ in rule 1 , applies only to appeals: “ Subject to paragraph 5A [which relates to immigration judicial reviews] a party my appoint a representative (whether a legal representative or not) to represent that party in the proceedings save that a party in an immigration or asylum case may not be represented by any person prohibited from representing by section 84 of the Immigration and Asylum Act 1999.” 24. In the First-tier Tribunal, rule 10(1) is to the same effect; but rule 10(2) provides that representation by a person so prohibited does not of itself render void the proceedings or any step taken in the proceedings. 25. The effect of rule 11 is that the interpretation of Part 5 of the 1999 Act is a matter affecting the jurisdiction of this Tribunal. A purported representative who is a person prohibited by s 84 cannot be a representative and cannot be heard; a representative not so prohibited must be heard. Thus it is right for us to determine the issue before us. 26. At the hearing we were greatly assisted by Mr Biggs, who had researched the materials on a pro bono basis and who, for the purposes of testing the arguments, took a position adverse to that of the Bar, by submitting that an English barrister was prohibited from appearing remotely before a Tribunal sit t ing in Scotland. He also provided a post-hearing note with his comments on some of the matters discussed at the hearing. 27. T he Secretary of State, as we have indicated, has the ultimate statutory responsibility for the Immigration Services Commissioner and hence for the regulatory system as a whole (because those not regulated through the professions need to seek registration from the Commissioner). Mr Melvin, who appeared for the Secretary of State, told us, however, that his instructions were to make no submissions on this issue. Prior to the hearing the Tribunal’s lawyers had contacted the Commissioner’s office , whose legal adviser had responded as follows: “We do not have any guidance on whether representatives qualified in England & Wales are prohibited from appearing by remote means in a hearing conducted by a Judge in Scotland. By the wording of the question, I assume this concerns Solicitors and Barristers; not OISC advisers.