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Migration law – an end to dual regulation

After almost 20 years of spirited advocacy, by the Law Council of Australia in particular, an end to the dual regulation of lawyers practising migration law has finally been achieved.1

From the commencement date of 23 March 2021, dual registration fees, registration prerequisites, compliance with two CPD schemes and the application of two disciplinary processes will cease to apply to unrestricted practising certificate holders.

The commencement date is nine months from the date that the Migration Amendment (Regulation of Migration Agents) Act 2020 (the Act)2 received royal assent, on 22 June 2020.

On 23 March 2021, it will become unlawful (in the absence of an earlier date fixed by proclamation) for legal practitioners with unrestricted practising certificates to be registered as registered migration agents.3

In the interim, Queensland lawyers who are registered as migration agents will need to decide whether they give up their practising certificate to run businesses solely as migration agents, and be subject to regulation by the Office of the Migration Registration Authority under the Migration Act 1958 (Migration Act), or work within a legal practice as the holder of an unrestricted practising certificate, and be subject only to regulation by the Queensland Law Society and the Legal Profession Act 2007 (Qld).

Most reading this article will be solicitors working within a legal practice and not dual-registered as migration agents. A number of firms will see this reform as an opportunity to provide clients with additional in-house legal services.

By way of example:

  • clients may wish to sponsor a skilled employee from overseas
  • a temporary visa holder may have an employment law issue that impacts on their migration status
  • a permanent resident may be facing a character cancellation issue arising out of a criminal matter
  • a family law client may be separating from a non-citizen partner who wants to leave the country with their children
  • family violence may be an issue where one partner is not an Australian permanent resident
  • a temporary visa holder client may wish to change employers or visa
  • a client may need to apply for a protection visa or Australian citizenship.

The period between now and the commencement of the reforms provides a solid window of opportunity in which to upskill in migration law in anticipation of deregulation, should a migration law capability be useful to your practice.

The rules, regulations, statutory instruments and policy that apply to the above areas and migration law generally, are myriad and complex. There are intensive courses available, such as Immigration Essentials for Lawyers presented by accredited immigration law specialists through the Migration Institute of Australia or the College of Law.

The QLS Immigration Specialist Accreditation Committee advises on completion of an intensive before taking on any migration cases, to ensure that an acceptable level of professional responsibility and risk management is achieved.

Further, undertaking cases with the guidance of a quality subscription service – Legendcom or LexisNexis Australian Immigration Law being the choices – is also regarded as an essential requirement for practice in migration law. Access to a subscription service is a pre-requisite to registration as a migration agent under the Migration Act, as migration law/regulation/policy is not only complex, but subject to frequent amendment.

If practice in migration law is contemplated, it is further recommended to consider the value of membership to subscription news/case services such as Migration Law Updates and updates through the Migration Institute of Australia. Both run associated membership Facebook forums, in which both lawyer and non-lawyer migration agents offer support and advice in relation to issues practitioners encounter.

The free Administrative Appeals Tribunal reviews and bulletins are another good source of information on recent migration law cases of interest.4

It should be noted that introductory migration law training can be complemented by volunteering at a community legal centre that offers advice in migration law such as, but not limited to, the Refugee and Immigration Legal Service, Salvos Humanitarian Legal, Robina Community Legal Centre, Townsville Community Legal Service Inc., Prisoners Legal Service and the Central Queensland Community Legal Centre. It would be preferable to volunteer your services after completing a migration law intensive.

Finally, both the Law Council of Australia and the Migration Institute of Australia hold excellent annual immigration law conferences. The range of speakers and topics is always exceptional.

For restricted practising certificate holders, the new sub-sections 278A(1)-(6) of the Act provide for continued registration as a migration agent under the Migration Act for a period of two years following the commencement of deregulation. This transitional provision is to enable completion of the supervision necessary to become an unrestricted practising certificate holder.

Upon the expiry of this two-year transitional period, restricted practising certificate holders can no longer be registered as a migration agent unless they have applied for and received an extension of time from the Migration Agents Registration Authority to acquit their supervised practice requirements.

The Act provides that such extensions can be granted for a further two years. This means that four years are theoretically available for restricted practising certificate holders to prepare for deregulation.5 This is an important concession for a small subset of solicitors who do not currently hold unrestricted practising certificates.

This reform has been the subject of numerous reviews and heated debate over an extended period of time.6,7 Whilst a number of practitioners will need to decide whether to give up their practising certificates, and continue to practice in the migration advice profession solely as migration agents, others are likely to join a legal practice as unrestricted practising certificate holders.8

However, for the majority, a new opportunity presents in a fascinating area of law and, interestingly, reports from practitioners long established in the sector are that, despite COVID-19, demand for migration law advice and representation continues to run strongly.

The QLS will be advertising CPD for those interested in practising in migration law in the near future.

Sonia Caton is a law lecturer and member of the QLS Access to Justice/Not for Profit and Immigration Law Specialist Accreditation Committees. She is also the Vice-President of the Qld/NT Chapter of the Migration Institute of Australia and a former Chair of the Refugee Council of Australia and Director of the Refugee and Immigration Legal Service.

Notes

1              For background, see ‘New era for migration law practice’, Proctor, October 2018 p12, qlsproctor.com.au/wp-content/uploads/2020/06/Proctor_OCT_2018_WEB.pdf.

2              legislation.gov.au/Details/C2020A00071.

3              P4, Explanatory Memorandum Migration Amendment (Regulation of Migration Agents) Act 2020.

4              aat.gov.au/resources/newsletters.

5              legislation.gov.au/Details/C2019B00218/Download Explanatory Memorandum.

6              lawcouncil.asn.au/docs/b9760afd-8c53-ea11-9403-005056be13b5/3739%20-%20Regulation%20of%20Migration%20Agents%20Bill.pdf, Law Council of Australia submission 2020.

7              parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/7177556/upload_binary/7177556.pdf;fileType=application/pdf, Parliamentary briefing paper.

8              Some legally qualified migration agents operating as sole traders under the Migration Act may opt to  establish a legal practice and obtain an unrestricted principal practising certificate.

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