About immigration advice...

[Egg Centric]

It's a popular thing to say here that it's illegal to give immigration advice to posters. This is certainly not without basis. There is definitely some kinda law saying something. But I must admit to some skepticism so I had a wee look. Context to begin with and why I was also looking:

Firstly - at least half the time it's Brits worried (almost always groundlessly) about travelling abroad. Does the act that creates this prohibition apply to this situation? I would have expected it to apply to advising those intending to settle (or whatever) in the UK not the other way around.

Secondly - how is it that sites like immigration boards exist? They were of great help to me five years or so ago when my wife and I were doing her spousal visa.

What does the law actually say? Is this a genuine issue or is it a bit like parliamentary services where some genuine laws are/were blown out of all proportion essentially through inertia?

My own answers btw after about thirty seconds research - and assuming it's the right law - by looking at https://www.legislation.gov.uk/ukpga/1999/33/section/82

That sets out in pretty straightforward terms how to interpret what I believe is the relevant law

Firstly - looks absolutely fine to me to say whatever you like about non UK immigration

Secondly - because it's only illegal if you're doing it as part of a business.

Am I wrong? Or should we just chill out?

 

[startingaparty]

The UK government's own guidelines state you must register with the OISC (Office of the Immigration Services Commissioner) before providing immigration advice because "Section 84 (1) of the Immigration and Asylum Act 1999 (‘the act’) prohibits the provision of immigration advice or services other than by a ‘qualified person’."

 

[ChewChewTrain]

I’ll let wiser heads answer your questions, but I also briefly “researched” this earlier. I was curious as to whether this was one of those laws that’s never really enforced, but it seems there are a few dozen convictions each year, of which some make the news.

Those convicted do sometimes get imprisoned, but that usually seems to be when more than merely giving advice has occurred (e.g. charging large amounts of money or refusing to give back passports etc so the “clients” had to keep coming back; presumably, such things would be illegal anyway).

AIUI, the law’s intention is to stop the exploitation of those in a vulnerable situation, rather than to prevent the giving of well-intentioned but bad advice, and it could be that there is a policy not to prosecute the latter. Indeed, one could argue that trying to stamp out bad advice given on the Internet is unlikely to be a fruitful endeavour.

 

[Fawkes Cat]

The UK government's own guidelines state you must register with the OISC (Office of the Immigration Services Commissioner) before providing immigration advice because "Section 84 (1) of the Immigration and Asylum Act 1999 (‘the act’) prohibits the provision of immigration advice or services other than by a ‘qualified person’."

To save all of us having to go and dig, where are the government’s guidelines please?

I suspect that either the guidance or the act has a definition of ‘immigration advice’, and that would be a first step towards us understanding whether we’re at risk of breaking the rules.

 

[zwk500]

I feel that whether strictly legal or not, the forum should still refrain from commenting on immigration issues at all. There primary reason is to avoid giving bad of ineffective advice however well-intentioned. Immigration law is something that people need the clearest advice possible on from a professional if they cannot find the answer themselves. A secondary reason is that it has a potential to provoke a debate about the merits of immigration generally and that would be unhelpful for the case at hand in a thread.

Perhaps the forum could have a sticky thread with a list of places that can give immigration advice, such as a lawyers portal and the Citizen's Advice Service (if they do that), to which posters can refer?

 

[Haywain]

A consideration of this is also who would be prosecuted if the law were broken. It might be the poster but is more likely to be those running the forums, so it is better to err on the side of caution if we want the forums to continue.

 

[zero]

A while ago I spoke to a real immigration advisor about this, and the gist of her response was that you can't tell someone what they should do based on their specific situation, but you can direct them to gov.uk pages which may be of relevance such as those talking about visas, and the legislation.

You can talk about what has happened to yourself or others you know - but you should not claim that your or others' situations are related to that of the person asking for help, and telling people to seek proper advice (where warranted) is always a good idea.

 

[some bloke]

Section 82 says,

"references to the provision of immigration advice or immigration services are to the provision of such advice or services by a person...(b) in the course of a business carried on (whether or not for profit) by him or by another person."

Maybe that would apply to a forum, particularly to someone who gives advice who is also involved in running the "business".

On the definition of advice, it includes this:

“immigration advice” means advice which—
(a) relates to a particular individual...
(c) is given by a person who knows that he is giving it in relation to a particular individual".

I feel that whether strictly legal or not, the forum should still refrain from commenting on immigration issues at all. There primary reason is to avoid giving bad of ineffective advice however well-intentioned.

Even where correct general advice is given, it could be inappropriate/out of context, or the person asking for help might take it to mean something which is in fact inappropriate advice.

The risk could be higher where the person's understanding of English is not very good. Their understanding of English may not be as good as it seems from a carefully-composed request for help.

Perhaps the forum could have a sticky thread with a list of places that can give immigration advice, such as a lawyers portal and the Citizen's Advice Service (if they do that), to which posters can refer?

Perhaps sticky threads could be useful for both this and other detailed general advice.

 

[Fawkes Cat]

Section 82 says,

"references to the provision of immigration advice or immigration services are to the provision of such advice or services by a person...(b) in the course of a business carried on (whether or not for profit) by him or by another person."

Maybe that would apply to a forum, particularly to someone who gives advice who is also involved in running the "business".

For completeness, the entire subsection is

(2)In this Part, references to the provision of immigration advice or immigration services are to the provision of such advice or services by a person—

(a)in the United Kingdom (regardless of whether the persons to whom they are provided are in the United Kingdom or elsewhere); and

(b)in the course of a business carried on (whether or not for profit) by him or by another person.

So @some bloke is right that we only need S82(2)(b), but seeing S82(2)(a) saves us worrying that there might be other qualifying conditions.

S82 doesn’t define ‘business’ so I guess that it’s meant to take its dictionary definition. What’s our appetite for litigating over whether the forum is or is not a business should this all go horribly wrong and we get prosecuted?

I’m working from the legislation at https://www.legislation.gov.uk/ukpga/1999/33/contents

 

[island]

So @some bloke is right that we only need S82(2)(b), but seeing S82(2)(a) saves us worrying that there might be other qualifying conditions.

On the other hand whilst I'm in Ireland later this month I can advise all I want

 

[fandroid]

Meanwhile we should just stick to what this Forum is best at - advising on Train travel and the law and processes that go with that

 

[ChewChewTrain]

I feel that whether strictly legal or not, the forum should still refrain from commenting on immigration issues at all. There primary reason is to avoid giving bad of ineffective advice however well-intentioned. Immigration law is something that people need the clearest advice possible on from a professional if they cannot find the answer themselves. A secondary reason is that it has a potential to provoke a debate about the merits of immigration generally and that would be unhelpful for the case at hand in a thread.

My thoughts too. Doubtless there is a range of views on the subject among those who give useful advice, and we don’t want such people to be put off coming here because, for example, they feel the forum is helping those who have (say) overstayed.

 

[Egg Centric]

My thoughts too. Doubtless there is a range of views on the subject among those who give useful advice, and we don’t want such people to be put off coming here because, for example, they feel the forum is helping those who have (say) overstayed.

No one (surely) is advocating Railforums being a hub for general immigration advice, that's crazy on a number of levels.

The immigration questions in the disputes forum are basically variations of these two:

Omg I got a penalty fare my life as a promising medical solicitor is ruined. Am I banned from the United States as well?

and

I accidentally bought a ticket from Cambridge to Foxton on a 16-17 railcard while I'm a 35 year old who was commuting to Kings Cross. Am I going to be deported?

To which in both cases the answer is obviously no but some people do seem to panic.

I'm absolutely convinced looking at the act that answering the first of these questions is unambiguously fine and not an offence. The second as others say depends on interpretation of the "in the course of business" clause somewhat but also seems much more likely than not to be ok to me

 

[Haywain]

Omg I got a penalty fare my life as a promising medical solicitor is ruined. Am I banned from the United States as well?

That is not immigration advice.

 

[Egg Centric]

That is not immigration advice.

Not under the definition in the law, no, but I have seen a refusal to answer it based upon the misconception arising from the law.

 

[Gloster]

Possibly the mods should insert a paragraph into the advice to be read before posting in the Disputes section or to be inserted by in threads, or both. It would be something on the lines of:

According to the Immigration and Asylum Act 1999 we are unable by law to give advice on how your immigration or residency status may be affected. You should consult a qualified adviser, who can be found by using the Adviser Finder page on the website of The Office of the Immigration Services Commisioner. Students could also contact their Student Union.

I leave others to tidy this up.

 

[Egg Centric]

Possibly the mods should insert a paragraph into the advice to be read before posting in the Disputes section or to be inserted by in threads, or both. It would be something on the lines of:

According to the Immigration and Asylum Act 1999 we are unable by law to give advice on how your immigration or residency status may be affected. You should consult a qualified adviser, who can be found by using the Adviser Finder page on the website of The Office of the Immigration Services Commisioner. Students could also contact their Student Union.

I leave others to tidy this up.

It could/should also state how incredibly unlikely it is that it would be affected though, this would seem a fair "compromise" if anyone is genuinely concerned about being taken to court for forum posts (again, how does immigration boards exist?). I think refusing to give advice just makes the panicked more panicky.

Especially as legal justification for avoiding giving advice is in reality either pretty thin (UK immigration advice) or non existant ("I can't go to America anymore") case as laid out above.

 

[Haywain]

It could/should also state how incredibly unlikely it is that it would be affected though,

That reads rather like giving advice.

 

[zwk500]

I think refusing to give advice just makes the panicked more panicky.

On the contrary, clearly stating that we cannot give advice means that those who are worried about immigration go directly to people who are actually qualified to give out such advice.

Saying 'don't worry about it' is giving advice, whether legal or not, and even if only 1 person in 100 might need to worry about it, it would still be a serious problem for them if they ignored the immigration consequences because of this forum and it came back to bite them. 'I/We Don't Know' is the most important truth to tell people.

 

[Haywain]

Not under the definition in the law, no, but I have seen a refusal to answer it based upon the misconception arising from the law.

I can only recall that sort of advice being refused where it was in the context of someone also wanting immigration (to the UK) advice. On its own, information about UK citizens gaining access to the US is simply travel information but that doesn't mean that we are the best people to advise on that either - just that we are not prevented from doing so by law.

 

[Gloster]

According to the Immigration and Asylum Act 1999 we are unable by law to give advice on how your immigration or residency status may be affected. You should consult a qualified adviser, who can be found by using the Adviser Finder page on the website of The Office of the Immigration Services Commisioner. Students could also contact their Student Union.

On further thought, it might be worth adding a sentence for those who post in a panic as soon as they are stopped that they should wait until they know whether and how the railway will proceed, and under what section of the law (byelaw, RoRA, etc.). This would not be needed if the matter has got as far as them receiving paperwork.

The importance of making sure that the railway is aware of any address changes should also be underlined. In my opinion, people in that position may be more likely to move than the average and have fewer networks of contacts.

 

[Egg Centric]

That reads rather like giving advice.

Not in the meaning in the act as it wouldn't be tailored to any particular individual

 

[zwk500]

Not in the meaning in the act as it wouldn't be tailored to any particular individual

But the point is that we are supposed to be helping people, not tiptoeing on the edge of the law. Stating somebody is unlikely to be affected isn't much help to the people who are affected, and therefore it's bettern to have a standing policy of 'we can't help with this, please refer to ...' so that we avoid misleading people, however wel intentioned or legal we are.

 

[Tetchytyke]

There is a crucial difference between advice and guidance. There’s also the similarly crucial point that the advice must be given in the course of business.

I managed an advice service for many years, and we could give immigration guidance: yes, there may be immigration implications, go speak to an immigration lawyer, here’s a list. We could also explain the law in basic and general terms: these are the things which might happen in a given situation, but if you need advice on your specific circumstances then speak to an immigration lawyer, here’s a list. Neither of these are giving advice. But we should always exercise caution and keep it general.

I don’t consider postings on a forum to be advice, and I don’t think people need to be worried. What gets posted here is guidance at best. However I think people- me included- need to be aware that “I don’t know” is often the correct answer.

 

[Fawkes Cat]

However I think people- me included- need to be aware that “I don’t know” is often the correct answer

This is the big practical problem. Even assuming that we can legally talk about immigration matters, I am not convinced that I (and by extension we) know enough about it to say anything useful.

In particular, since we look at minor offences which the Home Office might or might not want to take into consideration, we'd be in the position of trying to work out what a given civil servant will decide on the basis of whatever guidance the political end of the government has sent down this time round.

So in practice are just limited to changing our line from 'I can't help you with your immigration question because the law says I can't ' to 'I can't help you because I don't know enough about how your case will be judged '?

 

[ainsworth74]

Whilst I appreciate the technical arguments about the legislation and similar, fundamentally immigration is a complex area of law and one which can have extremely severe consequences if mistakes are made such as deportation from the UK. It is not to be trifled with.

Consequently, unless someone is a qualified immigration advisor (and I don't think we have any on the Forum, if we do by all means shout up), the expectation is that only very general statements (i.e. guidance) would be given by Forum Members. Someone pointing to a page on gov.uk and saying "These are the things that could happen in this situation, see this page on gov.uk, but you'd need to speak to an adviser to know more about your specific situation" would be fine for instance. Equally, simply saying "I don't know, see these pages on gov.uk and here is register for immigration advisers" may be the more appropriate response.

We are, fundamentally, a railway forum and so dealing with ticketing matters is more in our wheelhouse (and we actually do have members with experience of the relevant legal processes who can point out if we're going wrong) and is not regulated in quite the same way as immigration advice is.

Again, appreciate the technical arguments and most likely none of what we do here would actually be captured by the act in question. But I'd really rather not run the risk. So generalities are okay but I'd really rather not see anyone saying: "In your situation, you do/don't need to worry because x applies" and even when speaking in generalities please link it back to some sort of official source (basically, gov.uk).

and the Citizen's Advice Service (if they do that)

All Citizens Advice are registered via the National Association of Citizens Advice to give Level 1 immigration advice:

Level 1 - advice and assistance​

A level 1 adviser can give you advice on simple cases, for example getting a business visa extension when you have no problems with work and all necessary documents.

Level 1 advisers can advise you on:

• entry clearance
• leave to enter
• leave to remain
• nationality and citizenship
• EU and EEA law

Find an immigration adviser

Search for someone to help you with advice and applications to stay in the UK - free and paid-for services, adviser levels 1, 2, 3 and complaints.

www.gov.uk

Some may of course have a specific project which has employed someone authorised to give Level 2 or 3 immigration advice as well. But all, in theory, can provide Level 1 so signposting someone to Citizens Advice is not a bad move as it is at least free and they will be able to, in theory, work out if someone does need specialist advice or if they can deal with it themselves.

 

[Gloster]

Many of those who might be worried about how a ticket irregularity could affect their immigration status mat not have a good command of English: they might misunderstand vague or well-meaning bits of helpful advice. We should limit ourselves to bluntly and clearly saying that we can’t give such advice and pointing them in the direction of those who are authorised to so do: Citizens Advice, OISC website, student unions, etc.

 

[ainsworth74]

We should limit ourselves to bluntly and clearly saying that we can’t give such advice and pointing them in the direction of those who are authorised to so do: Citizens Advice, OISC website, student unions, etc.

I would be surprised if a Student Union had a qualified immigration adviser, not ruling it out as some Union's may see value in that considering their student population but I'd not expect many to have someone.

 

[zwk500]

Equally, simply saying "I don't know, see these pages on gov.uk and here is register for immigration advisers" may be the more appropriate response.

This is by far the best response.

I would be surprised if a Student Union had a qualified immigration adviser, not ruling it out as some Union's may see value in that considering their student population but I'd not expect many to have someone.

Most student unions would probably have a list of qualified firms and an agreement with at least one of them for a discount/free consultation at the most.

 

[Gloster]

I would be surprised if a Student Union had a qualified immigration adviser, not ruling it out as some Union's may see value in that considering their student population but I'd not expect many to have someone.

No, but they should know who in the local area is authorised and available at a reasonable price.