2.4 Ethics OISC Code of Standards

The Code of Standards (GOV.UK) sets out how the OISC expects you to behave in the course of your work. All OISC advisors are required to have read this document.

Under the code you must

• Act in your client’s best interests (Codes 12,5, 10 & 11)

• Keep client’s affairs confidential (Codes 27 & 28)

• Not mislead the courts, Home Office, etc (Code 14c), be knowingly or negligently part of any deception (Code 14d, Code 13), or abuse any procedure (Code 14e)

• Notify your client of any conflict of interest (Code 20)

Acting in the best interest of your client

• Your first duty is always to your client. However this is circumscribed by other duties and legal obligations:

• You must always act in accordance with UK law (Code 1 in The Code of Standards (GOV.UK))

• You must not deceive the Home Office or the courts (Code 14C)

• Your client’s best interests can override your own:

  • If urgent action is required to protect your client’s position and the client has not paid you or owes you money, you still need to take that action

  • Similarly you cannot retain a client’s file or documents pending payment should they instruct another representative (Code 48) – note: this is different for solicitors regulated by the SRA

• In fact most of the Code of Standards exists to ensure that regulated advisers act in their clients’ best interests, whether this is through day to day casework, or through adopting good practice. For example, the code requires you to:

  • Remain fit and competent (Code 4) and act competently (Code 5)

  • Clearly identify yourself (Code 7)

  • Not take advantage of your clients’ vulnerability (Code 10)

  • Not mislead your clients or prospective clients (Code 11)

  • Treat clients fairly and without prejudice or bias (Code 15)

  • Issue client care letters setting out instructions, agreed actions, etc. (Codes 23-26)

  • Keep your client informed of progress, etc. (Codes 29-33)

  • Not withdraw from a case arbitrarily (Codes 43-45)

  • Keep adequate records (Codes 53-56)

Confidentiality

• You must:

  • Keep your client’s case and details confidential

  • Ensure all communication is conducted in a confidential manner

• Confidential information can be disclosed to third parties with your client’s permission (without this, representation would be impossible!)

• There are very rare circumstances where you can breach confidentiality:

  • Under money laundering or anti-terrorist legislation

  • Where there is evidence that a person will suffer serious mental or physical injury

Deception

• You must never deceive the Courts or the Home Office (even if this might seem to be in your client’s best interests!) However you cannot breach confidentiality to correct a deception.

• Deception can be accidental – for example, submitting a false document, believing it to be genuine. Whether deliberate or accidental, it cannot be ignored, and can have lasting negative consequences for the client.

Conflict of Interest

• Conflicts of interest can arise where you are aware of information that may compromise your independence in a case. They can potentially arise between you and your client because:

  • You are connected (as a friend, family member, etc.)

  • Your client is dissatisfied with your service

  • You have made a mistake which prejudices your client’s interests

  • Your client instructs you to do something that is against the ethos of your organisation (but beware discrimination!)

• Between two different clients, e.g.

  • Between spouses

  • Between parents and children

  • Between former and current clients

Conflicting Duties

• Sometimes there may be an apparent conflict between the different duties. A common example is where you learn that your client has employed deception in an application to the Home Office:

• You can in no way support or assist your client to use deception

• Allowing the case to proceed without correcting the deception would amount to assisting in the deception

• However, it would be a clear breach of confidentiality to notify the Home Office of the deception without first obtaining your client's permission

• The client may also feel that it is not in their best interests to notify the Home Office

• In these circumstances the correct course of action would be to:

  • Advise the client that you are unable to continue representation without informing the Home Office of the deception

  • Advise the client of the potential consequences of disclosing the deception

  • Seek the client's permission to disclose the deception

  • Withdraw representation if the client refuses

• However, remember that you are not supposed to withdraw from cases arbitrarily:

  • Always try to resolve the issue with a client before withdrawing representation

  • Keep detailed records of the matter so that you can justify your actions, if required

Tips for remaining fit and competent:

• Get used to looking at source materials such as Acts, Rules and Regulations linked below, rather than training materials. Subsequent changes in the law will not appear in your old training materials and may not be reflected in books and manuals for months or possibly years to come

• Know where to find the most up to date source materials, particularly:

  • The Immigration Rules (GOV.UK)

  Be aware of the limitations of some online sources – for example, www.legislation.gov.uk – which does contain all new legislation within days or hours of being published, but which does not update existing legislation with the resultant changes until months or years later

Most common UK laws are:

• Immigration Act 1971 (GOV.UK) - this is the foundation of modern immigration control and covers things like criminal offences and what happens when your leave expires while your application is pending.

• British Nationality Act 1981 (GOV.UK) - this determines who is British and who can become British.

• Human Rights Act 1998 (GOV.UK) - this allowed people to raise human rights matters in domestic course for the first time.

• Immigration and Asylum Act 1999 (GOV.UK) - this created the OISC and also gave us our current system of asylum support.

• Nationality, Immigration and Asylum Act 2002 (GOV.UK) - this sets out when a migrant can appeal an immigration decision (where historical EEA free movement rights are not involved).

• Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (GOV.UK) - this is most notable for the provisions on credibility in asylum claims, in Section 8

• Borders, Citizenship and Immigration Act 2009 (GOV.UK) - this act introduced a duty to consider the best interests of a child at Section 55.

• Immigration Act 2014 (GOV.UK) and the Immigration Act 2016 (GOV.UK) - these acts ushered in the ‘hostile environment,’ making it harder for people to access services and accommodation without certain documents.

Note: Check blogs such as FreeMovement and Electronic Immigration Network regularly for notification of updates and changes.