Application to remove NRPF condition is regulated immigration advice

7 June 2016

The OISC also clarifies position for fee waivers and Destitution Domestic Violence Concession

The Office of the Immigration Services Commissioner (OISC) regulates the provision of immigration advice in the UK and requires anyone providing immigration advice which is specific to a person's matter to be registered, unless they are a solicitor or barrister registered with the appropriate regulatory body. It is unlawful for anyone who is not registered with OISC, or is not exempt from registration, to provide advice and assistance with a 'relevant matter'.  

The OISC has confi​rmed that providing advice or assistance with an application to change conditions of leave is a relevant matter and therefore subject to regulation. This is because section 3(3) of the Immigration Act 1971 establishes that leave to remain can be varied by adding, varying or removing conditions. This applies to the following applications:

  • Request for the removal of the NRPF condition from leave to remain granted on the basis of family or private life where a person has become destitute (change of conditions application).
  • Destitution Domestic Violence (DDV) Concession appl​ication.​
The OISC has confirmed that a level 1 adviser may provide advice and assistance with such applications. 

Local authority and voluntary sector practitioners who are not registered with the OISC must not assist a person to complete a change of conditions or DDV concession application, or advise a person to complete either application, otherwise they would be committing a criminal offence. ​
 
The OISC has also confirmed that the following are not considered to be 'relevant matters':

  • Fee waiver applications, so long as no advice and assistance provided relates to the completion of the immigration application form FLR(O) and FLR(FP).*
  • Exceptional case funding applications to obtain legal aid.
  • Contacting a first responder to request that a referral is made to the National Referral Mechanism (NRM) for victims of trafficking.
Providing advice and assistance with any of these applications does not need to be undertaken by an OISC registered or exempt adviser.

*Note that the fee waiver policy only applies to certain applications and is made at the same time that the immigration application for leave to remain is submitted to the Home Office. Although local authority practitioners will be able to assist clients t​o complete the fee waiver application, they must not provide any advice or assistance regarding the leave to remain application, so should in the first instance refer people for legal advice. To support the fee waiver application, local authorities will need to provide a letter detailing the assistance they are providing to a person or family and any other relevant information that is requested by the legal representative. ​

Implications for local authorities 
A quarter of the client group supported by local authorities comprises of people who are lawfully present with the NRPF condition​. Often the only route for such people off social services support will be to apply to the Home Office for the NRPF condition to be removed on the basis that they are destitute

We have previously advised that legal advice should be sought by a person before they make a change of conditions application because in some circumstances, as outlined in the Home Office policy, a new immigration application may need to be made. The OISC has now clarified that local authority practitioners will not be able to advise or assist people with completing a change of conditions application. 

Practitioners may signpost people to our website information and advise them to seek legal advice from an OISC level 1 adviser, or exempt adviser, to find out if they can make the application and, if so, for assistance with submitting this. Where possible, free advice should be sought although provision for this will be very limited​ as there is no legal aid for such matters; most immigration advisers will charge for such advice.  

It is therefore likely that, with the availability of legal advice being so limited, local authorities will incur costs as the people and families they are assisting face further delays getting off social services support when they are unable to promptly obtain good quality advice

NRPF Connect users must ensure that full details of the financial support they are providing to a person or family are inputted and kept up to date on the system, so this is clear to the Home Office at the point of granting status. Should leave to remain be granted with NRPF when there has been no further investigation by the Home Office into the applicant's financial circumstances, the local authority must immediately raise a query to check whether an oversight has been made and contact the duty line to request this is dealt with urgently. Otherwise, the local authority will need to advise the person to seek advice and assistance from an immigration adviser about whether a change of conditions application is appropriate. This will also be necessary when local authority support starts to be provided to a person when they have already been granted leave to remain with NRPF.

We will continue to raise concerns with the Home Office about the impact of the NRPF policy on local authorities and the importance of taking into account the provision of local authority support when deciding whether to impose the NRPF condition on a grant of leave when this is clearly evidenced to the Home Office via NRPF Connect.