There has been a lot of media coverage of judicial review applications in the last few days, as most readers will no doubt have noticed. The Government has announced plans to (a) reduce the time limit for judicial review from three months, (b) increase the court fees for bringing a judicial review application and (c) curtail the number of ‘appeals’ in judicial review cases. Prime Minister David Cameron himself trailed the proposed reforms in a rather ill-judged and frankly rather tasteless comparison between George Osborne’s faltering response to a downturn in the economic cycle and total existential war against the Third Reich. If Churchill’s response to the invasion of Egypt had been to adjust the time limits for lodging court cases then I don’t think we’d be worrying about the time limits for court cases right now.
Simon Jenkins is bang on:
A better approach might be to ask the real cause of appellate abuse. It is because so many decisions emanating from Whitehall are ill-considered and wrong-headed.
There will be a consultation, apparently, but this might be even more nominal than usual being as Cameron also in the same speech proposed restricting consultations with civil society — Government is all but infallible and will always Do The Right Thing, as we know.
One puzzling aspect of this attempt to blame litigants for the Government’s own failings is that it was NOT justified with reference to immigration cases. Usually the Other, those pesky immigrants and, even better, failed asylum seekers or alleged foreign terrorists, provide the justification for taking away civil liberties from us all. Given that a very significant number of judicial review applications are made in the field of immigration law, this was all the more surprising. See the interesting graphic below that has been doing the rounds on Twitter.
In Other News, though, some judges and some other lawyers have taken up the Government’s baton. We have already covered Sir John Thomas’s tirade in Hamid. He is at it again in the case of R (on the application of Awuku) v Secretary of State for the Home Department  EWHC 3298 (Admin), in which three immigration firms are named and shamed for failure to make full disclosure in urgent ex parte applications.. Not only that but in R (on the application of Gassama) v Secretary of State for the Home Department  EWHC 3049 (Admin) another immigration firm was ordered personally to pay government costs on an indemnity basis for very poor litigation conduct.
Some perspective may be useful. This is not an attempt to defend the indefensible — lawyers should always comply with the law — but to question whether it is sensible or useful to declare open season on immigration lawyers as if they were the source of all ills in our underfunded legal system. Some balance is needed in this sort of debate and I certainly don’t see anyone else jumping to our defence.
1. The UK Border Agency are probably the most incompetent bunch of litigators in history. I struggle to remember the Government, media, judges or Treasury counsel attacking UKBA incompetence in the same concerted way or lamenting the HUGE waste to the public purse caused by this incompetence. The adverse judicial comment I have seen has been more in the nature of a helpless lament at the whole process (see whelks, merry-go-rounds and whirligigs) than an angry rant.
2. Linked to this, none of the various pieces analysing numbers appreciated that a HUGE number of judicial reviews are successful because the other side concedes the case. For example, the statistics for immigration judicial reviews in 2011 record 8,649 applications, only around half of which, 4,604, were refused. Only 607 were granted at the permission stage, though. What happened to the other 3,438 cases, which were presumably withdrawn? In comparison, only a tiny number of other types of judicial review are unaccounted for compared to immigration. I would suggest that a lot of these unaccounted for cases involved the decision maker accepting that the decision was wrong at an early stage in proceedings. Anecdotally that is my own experience – I barely ever get to go to court in the judicial review cases in which I am instructed because they nearly all get conceded. The apparently low number of cases that ultimately succeeded at court (only 54) is therefore highly misleading as to the effectiveness of judicial review as a remedy for correcting unlawful decisions or behaviour by government.
3. Treasury Solicitors and Counsel (who act for the Government) have a very difficult job to do in immigration cases. Their client, the UK Border Agency, goes incommunicado, gives no instructions, gives ridiculous instructions and so on. But the lawyers also make mistakes and act at least disingenuously. Many is the case that used to settle for ‘purely pragmatic reasons’ according to a Treasury drafted consent order, which is basically a lie, and I cannot recall the last time I saw the Government comply with a time limit in a judicial review case. There is HUGE tolerance for this systematic flouting of the Civil Procedure Rules (and lower down the system the tribunal procedure rules) because judges take the defeatist view that it is inevitable and Government is a special case of some kind. I always warn my clients early on in a case to expect these double standards, because woe betide us should we do the same. Does anyone recall anyone from Treasury even being required to go down to court to explain or apologise?
4. Similarly, there have been a number of cases in the last year in which the courts have, after several years of prevarication and inconsistency, finally accepted that UKBA have to pay costs when they lose, a principle that most lawyers in other areas of law would probably have thought was fairly obvious. See Bahta  EWCA Civ 895, M v London Borough of Croydon  EWCA Civ 595 and AL (Albania)  EWCA Civ 710. It is astonishing that these principles needed to be re-stated and that some judges were not already applying them, and it is indicative of a different standard previously being applied by judges to UKBA.
5. Sir John and others would perhaps be usefully reminded of the fact that the UK Border Agency have employed no-notice dawn raid removals and otherwise operate on a 72 hour notice period. This gives a detained client very little chance to instruct or pay lawyers, who are now to be personally named and shamed for not responding to such action — sometimes unlawful action — absolutely immediately. This also ignores the fact that some immigration lawyers still perhaps naively expect the UK Border Agency to comply with its own policies on cancelling removals if a judicial review is lodged. Only when it becomes apparent at the last minute that UKBA is not complying does the panicked injunction become necessary. Only a person with no experience of acting for claimants in these cases could ever say that applying for an out of hours injunction is a deliberate tactical move. Sir John should try walking in a solicitors shoes before lambasting them for not quite filling in the form correctly or missing out information on an urgent and perhaps de facto pro bono application to the court that may be necessitated by yet further UKBA unlawfulness.
6. It is relevant to point out that these pesky immigration solicitors (and Counsel, although we barristers have been left out of the firing line so far) are acting on instructions. Yes, they should fill in the forms correctly and yes they should fully disclose the history. But to attack lawyers for lodging last minute injunctions against removal when acting on their client’s instructions is very dangerous indeed. Will we next attack the solicitors for appealing terrorist convictions? Adam Wagner, a rightly respected legal blogger but one whose experience is I think exclusively in acting for Government in immigration cases, states the widespread assumption that
Claimants are badly advised and given false hope that their case has merit– and then are left waiting a year for the inevitable failure of their Judicial Review when they could have been getting on with their lives.
He goes on in a similar vein cataloging errors by claimants before more gently suggesting UKBA is ‘by no means blameless’. There is an assumption being made here. The fact is that if a client is fully advised on the merits in an immigration case involving permanent separation from family and children and return to a country where he or she (rightly or wrongly) fears for his or life, that client will often still want to pursue every possible legal action. Even Adam’s no doubt considerable powers of persuasion might fail to dissuade such a person from pursuing doomed legal action.
7. These one-sided and ignorant attacks have a pernicious effect. In Marx’s early historical work, The Eighteenth Brumaire of Louis Napoleon, he wrote that
Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.
Just this week an immigration judge demanded that the senior partner of a very well respected immigration firm attend the tribunal to explain why a bundle had been served late. Who on earth did the judge think he/she is to make such a demand? I have never, ever heard of the UK Border Agency being held to account in such a way, even for their more egregious errors causing awful waste of public funds and terrible, damaging inconvenience to the other party. Also just this week I was helpless when UKBA withdrew a decision on the day of hearing because of their error, causing my client huge further delay and prolonged detention away from his family. We wanted to press ahead. The judge was terribly, terribly sorry for my client but did not demand the UKBA caseworker or manager attend court to explain why the error had been made or not corrected sooner. We’ll be back at court on that one in a few months time at considerable expense to UKBA, the tribunal and the legal aid fund.
8. It is worth recalling the harm that is allegedly done here. Harm to the administration of justice is a serious matter. But poorly or unpaid immigration lawyers acting urgently on last minute, desperate instructions do not generally ruin anyone’s life, unlike an incompetent UKBA decision wrenching a family apart or a badly drafted will or a badly handled family law dispute over children or a badly handled personal injury case for someone with very serious injuries.
Lastly, I also worry that these sorts of attacks are sometimes carried out by wealthy, white, middle class, well educated lawyers and judges with no personal experience of working directly with immigrants or hard pressed ethnic minority law firms. It is entirely reasonable to expect the rather well paid solicitor for a footballer or politician to dot every ‘t’ and cross every ‘i’ when seeking an urgent privacy injunction. That expectation might be a bit unrealistic in immigration law, the hardest and most bitterly fought, most controversial, most convoluted, perhaps most poorly funded and surely most tilted legal battleground between the individual and the State.