Who is qualified?
18. The scheme of the Act is that qualification to provide immigration advice or services has to be derived either directly from the Commissioner by registration or indirectly by authorisation as a member of one of the recognised (and specified) legal professions. The Commissioner’s registration process is selective and may authorise an individual to undertake certain activities but not others, but qualification derived from membership of one of the professions does not have that feature. It looks, therefore, as though a person who is a member of one of the professions can look to that membership to provide the qualification necessary to comply with s 84. That was indeed the position for some years after the coming into force of the 1999 Act, and remains the case for the professions with regulators outside England and Wales. 19. The legal professions in England and Wales are now regulated by or under the Legal Services Act 2007 and the introduction of the regime under that A ct caused changes to be made to Part V of the 1999 Act . S ection 186 of the 2007 Act provides as follows : “(1) Schedule 18 makes provision relating to Part 5 of the Immigration and Asylum Act 1999 (c. 33) (immigration advisers and immigration service providers). (2) In that Schedule— (a) Part 1 makes provision for approved regulators to become qualifying regulators for the purposes of Part 5 of the Immigration and Asylum Act 1999, (b) Part 2 contains amendments of that Act (which amongst other things enable persons authorised by qualifying regulators to provide immigration advice and immigration services in England and Wales) … .” 20. Thus the clear intention of the 2007 Act was that the new regulatory system it introduced entailed a modification of the previous position of those regulated by the professions in England and Wales: in future they would be authorised to provide immigration advice and services in England and Wales, not in the (whole) United Kingdom. 21. The relevant provisions of the 1999 Act as amended are these: “84 Provision of immigration services. (1) No person may provide immigration advice or immigration services unless he is a qualified person. (2) A person is a qualified person if he is— (a) a registered person, (b) authorised by a designated professional body to practise as a member of the profession whose members the body regulates, ( ba ) a person authorised to provide immigration advice or immigration services by a designated qualifying regulator, (d) or (e) acting on behalf of, and under the supervision of, a person within any of paragraphs (a) to ( ba ) (whether or not under a contract of employment). (3) Subsection (2)(a) and (e) are subject to— (a) any limitation on the effect of a person’s registration imposed under paragraph 2(2) of Schedule 6. (b) paragraph 4B(5) of that Schedule (effect of suspension of registration). (3A) A person's entitlement to provide immigration advice or immigration services by virtue of subsection (2)( ba )— (a) is subject to any limitation on that person's authorisation imposed by the regulatory arrangements of the designated qualifying regulator in question, and (b) does not extend to the provision of such advice or services by the person other than in England and Wales (regardless of whether the persons to whom they are provided are in England and Wales or elsewhere). 86 Designated professional bodies. (1) “Designated professional body” means— (b)The Law Society of Scotland; (c)The Law Society of Northern Ireland; (f)The Faculty of Advocates; or (g)The General Council of the Bar of Northern Ireland. 86A Designated qualifying regulators (1) “Designated qualifying regulator” means a body which is a qualifying regulator and is listed in subsection (2). (2) The listed bodies are— (a) the Law Society; (b) the Institute of Legal Executives; (c) the General Council of the Bar.” 22. The effect is that for the purposes of s 84(1) the “ qualification ” of Barristers, Solicitors and Legal Executives regulated in England and Wales is restricted. It is not easy to see any logical reason for the restriction: the qualification (and the resultant exemption from the need to seek registration with the Commissioner) appears to derive from the general expertise recognised by the regulator, rather than from the exact territorial reach of the regulator’s regulation. That remains the position in relation to those regulated from Scotland and Northern Ireland, and was not seen as a problem in England and Wales before 2007. We explore this a little further below; but whatever the reason, the position is undoubtedly that authorisation by membership of the professions in Scotland and Northern Ireland still extends to the whole of the United Kingdom, but authorisation by membership of the professions in England and Wales “ does not extend to the provision of such advice or services by the person other than in England and Wales ” .