An Important Distinction – Difference between Migration Agent and an Immigration Lawyer

Posted on April 13, 2016 by Emily

Immigration Lawyers benefit their clients and public interest by helping to reunite families delivering economic benefits through skilled and business migration, and protecting those in danger through humanitarian programs. As the decision to migrate is both costly and life changing, it is an important decision to pick the right consultant. In particular, clients need to be aware of the distinction between a migration agent and an immigration lawyer; a distinction which is often unclear to those seeking migration assistance.

 

  Migration Agent Immigration Lawyer AND registered Migration Agent
Registration with the Office of the Migration Agent Registration Authority (OMARA)

Graduate Certificate in Australian Migration Law and Practice

Registered as an Australian legal practitioner

Need to re-register with OMARA every year

For the purposes of registration, OMARA requires each applicant to complete 6 Continuing Professional Development (CPD) points in the 12 months prior to re-registration

 

 

 

 

Be a qualified and registered Australian legal practitioner

  1. Have gained a Law Degree at a Bachelor or Graduate level
  2. Work experience as part of the Practical Legal Training
  3. Re-register every year
  4. Gain 10 CPD points in the 12 months prior to re-registration
  5. Obligation to provide advice on how immigration cases may have implications for people’s rights and responsibilities in other areas of law (eg: tax, family or matrimonial).

 

 

 

 

 

X

 

 

 

 

 

 

Communications are protected between client and agent

X

 

Ability to be ‘Accredited Specialist’ in Immigration Law.

  1. Requires 20 CPD points – extra training and at least three years of work experience specialising in immigration law

X

 

 

The above table illustrates the key differences between an immigration lawyer, who is also a registered migration agent, and a migration agent. This distinction highlights four different notable points to consider:

  1. Immigration law is a complicated area. It operates against the backdrop of over 3000 pages of relevant legislation, 16, 000 pages of policy guidelines and parliamentary directives and about 150 visa categories. In an area in which complex legislative and regulatory requirements governing the immigration framework is constantly evolving, a legal qualification may prove to be critical in order to achieve the best outcome for the client.
  2. Lawyers must meet more rigorous professional standards. Immigration lawyers must annually re-register with two separate regulatory bodies: Lawyers must renew their legal Practising Certificate annually. This requires completing continuing professional development courses totalling 10 CPD points. Further, their registration with OMARA must also be renewed. The effect of dual registration ensures a higher level of continuing education as well as a higher level of regulation governing the level of service expected of Immigration Lawyers.
  3. As a profession, lawyers must adhere to the ethical and professional standards as regulated by the Legal Profession Act 2004 (NSW). This is on top of the provisions set out in OMARA’s Code of Conduct. The standard set for immigration lawyers is therefore very high.
  4. The communication between client and lawyer are protected under what is known as “legal professional privilege”. These communications therefore cannot be revealed except in few limited circumstances. It is important to highlight that the clients of non-lawyer migration agents are not protected under this privilege.

An additional distinction is also made that distinguishes more experienced immigration lawyers. Those practicing immigration law, who have a high level of experience and knowledge in the field, may be listed as “accredited specialists”. The Law Society of NSW, the Law Society of Queensland, the Law Society of South Australia and the Law Institute of Victoria have specialist accreditation for immigration lawyers for the purpose of assisting potential clientele distinguish practitioners who have gained specialist skills, proficiency and extensive experience in the field of immigration law. Specialist accreditation is peer reviewed and must be renewed each year. They must have passed rigorous examination in communication, problem solving, client relations and the law. For a complete list of accredited specialists in New South Wales, please click here.

The association of immigration lawyers has also benefited from the establishment of the Migration Law Committee of the Law Council of Australia. This Committee, formerly known as the Immigration Lawyers Association of Australasia focus group, as part of the Law Council of Australia, endeavours to add to the opportunities immigration lawyers have for professional development within their field, whilst also encouraging a new area of practice for young lawyers. (For more information on the history of the Migration Law Committee, please click here.)

Migration law is an extremely important area of law for Australia, with profound implications for all individuals involved. For this reason, it is critical that you are able to have the best legal advice and representation to enhance your migration opportunities. The lower regulatory threshold imposed on Migration agents, who are not lawyers, has come under considerable scrutiny from the professional community in recent months.  According to OMARA’s record at the end of the 2011-2012 financial year, 70 per cent of migration agents do not re-register after the first year. Of those that remained, 60 per cent do not re-register after five years. The low retention rate of the profession has affected the consistency of the services provided by migration agents and the development of skills that are critical to providing migration advice.

For these reasons, clients should be aware of the experience of the consultant they seek to employ, whether they have previously handled cases similar to their own and the longevity of their practice in the field. It should also be noted that experience with dealing with the Department of Immigration is also something that can only be gained through previous experience. Especially in complex matters that require extensive communications with the Department or any of the review bodies, it is important for clients to be aware of whether their consultant understands the nuances of how these bodies operate in order to maximise their chances to achieve the best result. (For a list of Immigration Solutions’ notable matters, please click here).