K, R v

For the purposes of section 84(2)(b) of the Immigration and Asylum Act 1999, authorisation by a designated professional body requires that the provider be amenable to that body’s effective regulatory control. Paragraph 206.1 of the Bar Code gives certain barristers a limited exemption from provisions otherwise governing practising barristers. It does not authorise them to practise as members of the Bar on the same basis as a barrister holding a practising certificate. A person within that exemption is therefore not a qualified person for the provision of immigration advice or immigration services.

K was charged with two offences under section 91 of the Immigration and Asylum Act 1999 for providing immigration advice or services when not qualified to do so. It was accepted that he fell within, and had complied with, paragraph 206.1 of the Code of Conduct of the Bar of England and Wales.

At a preparatory hearing, HHJ Beddoe ruled that paragraph 206.1 did not make K a qualified person under section 84(2)(b). K sought leave to appeal. The sole live issue was whether compliance with paragraph 206.1 meant that the Bar Council had authorised him to practise as a member of the profession it regulates.

1. Leave to appeal was granted, but the appeal was dismissed. K was not a qualified person under section 84(2)(b) of the Immigration and Asylum Act 1999. HHJ Beddoe’s preliminary ruling was correct.
2. The purpose of the statutory scheme is to ensure that persons providing immigration advice or services are subject to proper regulatory control. The words in section 84(2)(b), referring to a profession whose members the designated body regulates, make amenability to effective regulation material. Section 86(2), which permits removal of a designated body that fails effectively to regulate members providing such services, reinforced that construction.
3. Although K met the conditions in paragraph 206.1 of the Code, important regulatory provisions governing practising barristers, including provisions in Parts III and VII, did not apply to him. He was therefore not regulated by the Bar Council in the manner required by the Act.
4. Paragraph 206.1 had a limited function. It disapplied provisions of the Code and thereby protected the specified barrister from disciplinary consequences under the Code when supplying services which could otherwise lawfully be supplied. It did not assimilate that barrister to one entitled to practise under paragraph 202, nor confer the Bar Council’s authorisation to practise as a member of the Bar.
5. The court considered the possible implications for rights of audience under the Courts and Legal Services Act 1990, but did not decide them. That issue was separate and did not form a basis for the conclusion on immigration services.
6. In a postscript, the court observed that K’s view had been tenable and honestly held. Having resolved the point of principle, it saw no apparent public purpose in continuing criminal proceedings against a person who had not acted unscrupulously.

• Court of Appeal (Criminal Division)—In [2008] EWCA Crim 1900, the court granted leave to appeal but upheld the preliminary ruling that K was not qualified under section 84(2)(b) of the Immigration and Asylum Act 1999.
• Crown Court at Southwark—Following a preparatory hearing under section 31 of the Criminal Procedure and Investigations Act 1996, HHJ Beddoe ruled on 29 February 2008 that paragraph 206.1 of the Bar Code did not qualify K to provide immigration advice or services.