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On and from 22 March 2023 Supervised Practitioners (that is, practitioners whose practising certificate (PC) is subject to supervision requirements, known as ‘condition 2’) will no longer be eligible to be registered migration agents while continuing to hold their NSW PC.

If a Supervised Practitioner wishes to continue providing immigration assistance after 22 March 2023 who are not in the employment of another solicitor, then prior to this date they will need to either:

  1. Apply to the Law Society to have condition 2 removed from their PC (and notify the Office of the Migration Agents Registration Authority (OMARA) to be removed from the Register of Migration Agents); or
  2. Surrender their NSW PC and remain registered with OMARA as a migration agent.

Once a Supervised Practitioner has made a successful application to vary their PC to remove the statutory period of supervised legal practice (condition 2) from their NSW PC, the practitioner will have 28 days to notify OMARA of the changes (see section 312(4) of the Migration Act 1958 (Migration Act)).

Background

On 21 March 2021, amendments to the Migration Act came into force. These amendments:

  • allowed Australian legal practitioners holding an unsupervised PC (that is, a PC not subject to the statutory condition (condition 2) of supervised legal practice) to provide immigration assistance as part of their legal practice without having to register as a migration agent, and
  • gave Supervised Practitioners a grace period of two years from the commencement of the changes (in other words, until 21 March 2023) to complete the statutory period of supervised legal practice and apply to the NSW Law Society to vary their PC to remove condition 2 from their PC.

As the end of the grace period is fast approaching, Supervised Practitioners are urged to submit their applications to remove condition 2 from their PC to the Law Society Registry at [email protected] as soon as possible.

Registered migration agents with a PC issued after March 2021 are not affected

The amendments to the Migration Act do not apply to registered migration agents who are also legal practitioners and who received their first PC after 21 March 2021. These legal practitioners are eligible to be registered migration agents for the eligible period (usually two years from the date they are issued with their first PC) (see section 278A of the Migration Act). At the expiry of this eligible period, Supervised Practitioners will need to either:

  • Apply to the Law Society to have condition 2 removed from their PC (and notify OMARA to be removed from the Register of Migration Agents); or
  • Surrender their NSW PC and remain registered with OMARA as a migration agent.

Beware of unqualified legal practice

Supervised Practitioners who intend to continue providing migration legal services through their legal practice will need to be mindful that they are doing so in accordance with the conditions on their PC and not inadvertently engaging in unqualified legal practice.

As of 22 March 2023, Supervised Practitioners will need to ensure that they hold the relevant category of PC and that any migration legal services provided is through a qualified entity.

The holder of an ‘employee of a law practice PC’ is not entitled to engage in legal practice on their own account. Such practitioners can generally only engage in legal practice as an employee of a law practice. As of 22 March 2023, legal practitioners who hold an ‘employee of a law practice PC’ may continue to provide migration legal services through their employer law practice.

Becoming a principal of a law practice

Any Supervised Practitioner wishing to provide immigration assistance and advice through their own legal practice will need to complete several steps before doing so. They must:

  1. Have completed the statutory period of supervised legal practice and apply to the Law Society to vary their PC so as to remove condition 2.
  2. Complete a Practice Management Course through an accredited provider so that the Law Society can remove condition 3 from their PC.
  3. Apply to the Law Society for Variation of PC to practise as a principal of a law practice.
  4. Establish a law practice, including ensuring that any necessary notifications to the Law Society are made within the required timeframes.

Further assistance

The Law Society’s Professional Support Unit provides free and confidential guidance to help legal practitioners understand their regulatory obligations under the legal profession legislation. Any legal practitioner requiring further assistance with the matters discussed in this article can contact a Professional Support Solicitor on (02) 9926 0115 or by email at [email protected].