How do I become accredited at OISC level 2?

This is the second in our series of blog posts on how to become an OISC adviser and we are writing this as we publish our new OISC Level 2 Accreditation online course, available only to members. In our first post we discussed what is required to register at level 1. Level 1 immigration advisers are limited to making applications that rely on a straightforward presentation of facts. They must not be discretionary or concessionary in nature and the applicant must not have an adverse immigration or criminal history which could affect the outcome of their application. In these types of situations, the case would need to be referred to a higher level adviser.

Example

You are a level 1 adviser working at an immigration law firm. You receive a new enquiry from Jamie, a US national. He tells you he is in the UK on a spouse visa. His leave to remain is expiring soon and he wants your help making an application for further leave to remain in the UK. On the face of things, he meets all of the requirements under Appendix FM. You arrange a consultation with Jamie to take full instructions. You ask him to bring in his identification documents along with other evidence to demonstrate he meets the requirements.

When Jamie comes in for the consultation, you check his documents and notice the date on his biometric residence permit – it expired three weeks ago. Jamie had got the dates mixed up and he has become an overstayer.

As a level 1 adviser, you cannot work on his application because he doesn’t currently have leave. You need to refer his case to a higher level adviser within your organisation. Or, if your organisation is not regulated to provide advice at OISC level 2 or above, or the higher level advisers don’t have capacity to take on the case, you will need to signpost him elsewhere.

In this blog post we are going to cover how to become a higher level adviser. We will look at the process for raising your level, the competence requirements, level 2 assessments, and your ongoing duties after you become accredited at a higher level. We will generally be covering the step up from levels 1 to 2, but we will include some references to level 3, too. While you must have been registered at level 1 before you apply to be registered at level 2, you don’t need to be registered at level 2 in order to apply at level 3 – i.e. you can be a level 1 adviser and apply to be registered at level 3 if you have attained the required experience and skills.  

Here’s a recap of the different levels:

What can you do at level 2?

As set out above, at level 2 you can take on more complex casework, including making applications both under and outside the Rules. This could be where the applicant is in the UK without leave, doesn’t meet certain requirements or is requesting Secretary of State bail.

Level 2 advisers will be regulated in either the Immigration or Asylum and Protection category, or both. The category in which you are registered dictates the exact work you are permitted to undertake.

Immigration category

If you apply to register in the level 2 Immigration category, you must have first passed the level 1 assessment and be registered as a level 1 immigration adviser.

Work permitted in this category is everything at level 1 in the Immigration category, as well as:

• applications to UKVI, including human rights applications and concessionary or discretionary application
• applications for Humanitarian Protection
• representing clients in correspondence with UKVI and at UKVI interviews
• representations to UKVI in support of cases, including cases where the qualifying criteria may be open to interpretation
• complex applications under Appendix EU, for example applications by person without valid leave at the time of application, late applications where grounds are deemed to be above level 1 (see OISC Guidance note on EUSS Applications), applications made by persons with retained and derivative rights and Surinder Singh applications
• drafting client witness statements
• submitting section 120 Notices
• lodging notices of appeal and statements of additional grounds
• applications to the Secretary of State for bail
• instructing a barrister or a member of the Faculty of Advocates for advice and to advise on drafting appropriate grounds of appeal (where permitted through the BSB Licensed Access Scheme or the Faculty of Advocates Direct Access Scheme).

Guidance on Competence 2021 – Level 2 – Casework

Asylum and Protection category

If you apply to register in the level 2 Asylum and Protection category, you will first need to be registered at level 1 in Asylum and Protection. But, there is no competence assessment in Asylum and Protection at level 1. Instead, OISC take into experience and training only.

Work permitted in this category is everything at level 1 in the Asylum and Protection category, as well as:

• applications to UKVI, including asylum and human rights applications and concessionary or discretionary applications
• fresh claims on human rights grounds
• Case Resolution/Legacy Cases and Active Review
• applications for Humanitarian Protection
• representing clients in correspondence with UKVI and at UKVI interviews
• representations to UKVI in support of cases
• drafting client witness statements, including asylum statements
• submitting section 120 Notices
• lodging notices of appeal and statements of additional grounds
• applications to the Secretary of State for bail
• Family reunion applications
• Settlement (protection route) applications
• instructing a barrister or member of the Faculty of Advocates for advice and to advise on drafting appropriate grounds of appeal (where permitted through the BSB Licensed Access Scheme or the Faculty of Advocates Direct Access Scheme).

Guidance on Competence 2021 – Level 2 – Casework

Work not permitted at level 2

Those registered at level 2 cannot do any substantive appeals work. This includes making representations to or appearing before the tribunal. While you can make applications for Secretary of State bail, you cannot make tribunal bail applications. Finally, you cannot do any judicial review work – not even issuing a pre-action protocol letter.

How to register at level 2

The process of raising the level of an individual adviser will depend on the status of the organisation they are registered with (or joining):

1. The organisation is registered at level 1 = apply to raise the organisations level on the Raising Level Application Form AND each adviser who is seeking to provide advice at level 2 (or above) needs to complete a Raising Level Competence Statement.
2. The organisation is registered at a higher level = adviser who is seeking to provide advice at level 2 needs to complete a Raising Level Competence Statement.

Raising the level of the organisation

To raise the organisation’s levels, the Raising Level Application Form needs to be completed. This asks for the organisation’s details, a main point of contact (who will be the contact throughout the application process and future audits), and the details of the adviser(s) seeking to work at the higher level and the category they are applying for (i.e. levels 2 or 3).

A Raising Level Competence Statement will need to be provided for the adviser(s) seeking to work at the higher level (more on this below), along with the application fee and the following documents:

1. Declaration statement for all owners/ those running the organisation
2. Revised Client Care Letter
3. Professional Indemnity Insurance certificate and schedule with increased level of cover (or an explanation as to why the organisation is not increasing their level of cover)
4. Revised fee scale if the organisation is fee charging

The application fees are as follows:

Where an organisation’s application is successful, it will be granted approval at the new level for 12 months. Organisations that are unsuccessful will be granted approval at the same level (i.e. level 1) either for:

• 12 months from the date of decision if applying outside their normal registration period, or
• 12 months from the date that their previous registration period expired

Individual advisers

There is no requirement to provide a new DBS certificate (this will have been provided for registration at level 1) but you will need to complete a new competence statement. The competence statement asks for your personal details, the category of advice you are applying to register in and at which level (i.e. level 2 or 3), and details of your experience providing immigration advice and services.

At level 2 you’re expected to have at least 12 months full-time experience (or the equivalent part-time), and six months of this must be level 2 work. At level 3 you’re expected to have at least 18 months full-time experience (or the equivalent part-time), and six months of this must be level 3 work. “Experience” can include providing advice and services to clients in the UK or abroad, working for or with the Home Office, charities or other agencies, and in any legal or advice provision capacity.

You should also provide evidence of all your training in UK immigration law and practice in the last five years, and importantly, recent immigration law training to demonstrate up-to-date knowledge. This must have been taken in the last 12 months and should cover each area of immigration law you intend to practice in. There is no specific number of hours of training that must be completed to meet this requirement. OISC recommends that the training is given by an accredited training organisation or by a ‘Designated Qualifying Regulator’, which includes:

• The Law Society of England and Wales
• The Law Society of Scotland
• The Law Society of Northern Ireland
• The Chartered Institute of Legal Executives (CILEX)
• The General Council of the Bar of England and Wales
• The Faculty of Advocates
• The General Council of the Bar of Northern Ireland

On top of this, level 2 and 3 advisers are usually expected to have a legal qualification, such as an undergraduate degree in law (LLB) and/or a Master of Laws (LLM), and/or be qualified as a solicitor, barrister or CILEX fellow.

The knowledge and skills you need to have to be able to be registered at level 2 are significantly greater than at level 1. This includes the following:

Knowledge

1. Detailed knowledge of immigration and nationality law, including:

• grounds for applications and Fresh Claims
• UKVI concessionary policies
• grounds for lodging appeals including human rights grounds
• procedures for human rights applications, e.g. section 120 Notices
• the immigration rules on general refusal and automatic deportation
• administrative removal, removal directions and deportation orders
• major offences under immigration legislation
• the basis for exclusion of a person from the Refugee convention or Humanitarian Protection

2. A detailed knowledge of relevant rights of appeal, time limits and procedures up to, and including, the lodging of an appeal, and an awareness of relevant rights of appeal, time limits and procedures at the later stages of the appeal process.

3. A working knowledge of relevant case law and precedents, and how to access and use them effectively when making representations on a client’s behalf.

4. A detailed knowledge of the types of evidence needed to support appeals and applications outside the Immigration Rules, how to obtain such evidence and the relative weight to be attached to different types of evidence.

5. An awareness of further remedies such as Judicial Review.

6. A detailed knowledge of the European Convention on Human Rights, the Human Rights Act 1998 and other relevant law such as Section 55 of the Borders, Citizenship and Immigration Act 2009.

7. Where an adviser is working on asylum cases, a detailed knowledge of asylum law and procedures, including the 1951 Refugee Convention, its 1967 Protocol and the UNHCR Handbook for determining refugee status.

8. Where an adviser is working on asylum cases, a detailed knowledge of ‘safe third country’ procedures in assessing asylum applications.

9. Where an adviser is working on asylum cases an awareness of permission to work, the availability of welfare support and specific provisions for the processing of asylum claims made by vulnerable people including accompanied and unaccompanied children, mentally incapacitated individuals and victims of trafficking.

10. Where an adviser is working on bail and detention cases, detailed knowledge of the powers of the immigration authorities to grant bail, the procedures for obtaining bail and UKVI’s practice in the consideration of cases, including an awareness of the factors that must be taken into account when detaining an individual for immigration reasons to include the adults at risk guidance published by the Home Office.

11. A clear understanding of the limits of their knowledge and competence, and an understanding and sensitivity as to when a client’s case has to be referred.

Skills and aptitudes

1. Interviewing and advising

Sufficient verbal, interpersonal and written communication skills to be able to:

• ask relevant questions, employing different techniques to access necessary information
• obtain clear, detailed instructions, statements and case histories
• deal sensitively with vulnerable and/or traumatised clients and be aware of cultural, gender, sexuality and disability issues that may arise in some cases
• give clear, detailed advice based on relevant laws and policies
• explain complex legislation and policies in simple, clear language
• make clear, pertinent and effective oral and written representations to UKVI and other agencies on a client’s behalf.

2. Drafting

The ability to:

• make clear, pertinent and effective written representations in English on behalf of clients, including drafting grounds of appeal
• draft clear, detailed, structured and effective statements in English on behalf of clients
• produce any other necessary documents in English, which are comprehensive and readily comprehensible.

3. Analytical and advocacy skills

The ability to:

• identify the primary and secondary issues presented in a client’s case and the applicable laws or policies
• adequately assess the merits of cases presented
• make clear, cogent oral and written representations in support of cases
• identify and use the most appropriate sources of up-to-date information including case law and other specialised subjects in support of cases
• identify the salient points in an argument and respond to them effectively
• identify the evidence required to support a case and to evaluate the relative weight of the evidence
• represent a client effectively at UKVI interviews
• identify where referral to other professionals may be appropriate and to instruct relevant experts
• where applicable, obtain and effectively challenge reasons for detention, using human rights legislation, where appropriate.

4. Record-keeping and file management

The ability to:

• maintain clear, accurate records of UKVI interviews and legal proceedings
• maintain clear, comprehensive and well organised case files and an organised and accessible file management system
• maintain clear, accurate and comprehensive records of contacts with the client or third parties and of other relevant matters.

General guidance on how to complete OISC electronic application forms can be found here.

Once you have submitted your application and the OISC confirms they have all required information and documents from you, you will be invited to sit the level 2 (or level 3) competence assessment.

Competence assessment

Before you send off your application to raise your level, you must have prepared for the assessment. This is because once the OISC authorisation team are satisfied they have all of the documents they need from you, you will be scheduled to take the assessment on the next available date.

Applicants applying for registration in both categories will be tested in one of the categories on the day of the assessment. You will not be informed beforehand which category you will be tested in.

The assessment dates are listed online. Level 2 (and level 3) assessments are only every three months. It would be advisable to hold off submitting your application if, for example, you have a holiday booked which would conflict with the next scheduled assessment date. OISC will only accept requests to postpone your allocated assessment sitting in exceptional circumstances.

Assessment format

The assessment is open book but you cannot use the internet during the assessment. You will have digital access to the resource book which contains the information you need for reference during the exam. It includes Acts of Parliament, secondary legislation and case law. OISC assessment questions will be based on the law contained within these documents at the time of writing.

The assessment consists of scenario-based questions and you have two hours and 15 minutes to complete it. There are a mix of short form and long form questions, the long form question usually being to draft a letter of advice to your client.

You will be assessed on your ability to provide the correct advice (i.e. answering the questions by applying the relevant law to the facts) and on your level of written English (spelling and grammar). Do familiarise yourself with the marking scheme before taking the assessment.

How to prepare for the assessment

First, review the syllabus. This will be the OISC level 2 immigration syllabus, OISC Level 2 immigration syllabus, or both if you intend to qualify into both categories. Make sure you understand the knowledge areas that will be tested and to what extent they will be tested. Check whether you need to have only an “awareness” of a topic, or “detailed knowledge”, or something in between.

The Code of Standards sets the professional standards that all immigration advisers must adhere to. It is therefore very important that you revise them and ensure you are complying with them when drafting your answers in the assessment.

To prepare for any assessment, it is important to practice by doing past papers. OISC has a modest collection of these online:

Though be aware that the answers provided in older papers will be based on immigration law at that time – i.e. likely to now be incorrect/outdated.

What happens if you fail?

The pass mark for level 2 (and level 3) is 65%. If you fail the assessment, your application will be refused on competence. Unfortunately, there are no refunds and you will not get any feedback. It is therefore crucial that you prepare for your assessment as fully and as thoroughly as possible.

If you fail, that is the end of the road for that application. You can submit a new application, but it must include details of the additional training that you’ve completed. OISC will expect to see evidence of “significant further training or gained at least 3-6 months’ additional experience.”

Free Movement’s OISC Level 2 Accreditation course

Free Movement has a new OISC Level 2 Accreditation online course, available only to members. It covers both the immigration and asylum syllabus, and has over 100 self-test questions, exam tips and more. On completion, members will receive a certificate for 40 CPD points. Check out the syllabus below:

Post-registration

We covered your ongoing duties in our previous post. These are summarised here:

• Audits: OISC will regularly audit regulated organisations to ensure they are compliant with the Code of Standards and that their policies and procedures are working effectively. After an audit, the OISC caseworker will provide feedback on their findings and discuss any issues. The organisation will be sent a written summary of the findings which will identify any areas of poor practice or breaches of the Code of Standards, along with advice on how to rectify the issues or improve. If there are a number of issues, the caseworker may arrange a follow-up audit. Where the OISC is not satisfied that the organisation is in compliance with the Code of Standards and/or their advisers are not fit and competent to provide immigration advice and services, they can cancel the organisation’s registration.
• Change of circumstances: if the circumstances of an adviser or regulated organisation change, the OISC must be notified within ten days. This may include where an adviser has joined the organisation or left the organisation, the organisation has ceased providing immigration advice or services, or the organisation has changed address.
• Continued registration: an organisation will normally be granted a registration period of 12 months. Before their registration expires, they can apply to re-register. There is an application form to complete and a fee to pay (if a fee charging organisation). 
• Continuing professional development training: it is important for immigration lawyers – including immigration advisers, solicitors and barristers – to keep their skills and knowledge up-to-date and be alert to changes and current best practice. Free Movement members can access our collection of training courses, including our Monthly Update courses, all of which provide a CPD certificate on completion.

For specific queries on registering with the OISC, it is best to contact the Customer Service Unit directly: info@oisc.gov.uk.