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High Court’s denunciation of immigration lawyers will have a chilling effect

High Court’s denunciation of immigration lawyers will have a chilling effect

A lawyer is not merely a conduit through which their client’s grievances can be aired in court. The grievance must be formulated into a coherent and stateable case and presented in a professional, honest, and courteous manner. The Solicitors Regulation Authority requires solicitors in England and Wales to refrain from any “attempt to deceive or knowingly or recklessly mislead the court” and to ensure they are “not complicit in another person deceiving or misleading the court”.  Similar provisions are imposed by the Law Society of Scotland on lawyers in Scotland and by the Law Society of Northern Ireland for solicitors practicing in Northern Ireland.

The courts take these duties incredibly seriously, as is demonstrated by the judgment of the High Court in Sathivel v Secretary of State for the Home Department [2018] EWHC 913 (Admin) published on 26 April. Although strictly speaking only applicable in England and Wales, it will be of relevance to immigration lawyers throughout the UK.

Conduct of certain immigration lawyers slammed

Lady Justice Sharp and Lord Justice Green open on an uncompromising note:

The conduct of practitioners in the field of immigration and asylum poses a particular problem for the courts and tribunals [paragraph 4].

There have been a series of cases in the field of immigration and asylum criticising the conduct of lawyers when attempting to delay or deter their client’s removal from the UK – often known as Hamid cases. The court describes a prevailing problem of being presented with cases that are “wholly lacking in merit” consisting of “lengthy pleadings much of which is irrelevant and has been cut and paste from template documents”. The aim, it says, is to delay removal action and allow submission of fresh material to the Home Office with a view to generating further decisions which generates further litigation.

All of this buys time as the process of deciding repetitious claims can often take years. This benefits the client as:

the longer the case goes on the more scope there is for an applicant to begin to develop an Article 8 “private life” claim, for example by getting married (sometimes through a sham process) or having (or claiming to have) children. [10]

It is clear from the strong terms of the judgment that the court has had enough! The judges are now taking a firm stand against being dragged into “a continuing game played between the applicants and the Home Office” [12].

I suspect very few migrants facing removal would describe their ordeal as a “game”. They often find themselves in a dire situation and desperate people do desperate things.

They may fail to disclose material facts to their solicitor. They may continually change solicitor until they find someone willing to take their case. They may make the same claim over and over again. This is not out of some Machiavellian desire to play games with the Home Office: they do it because they cannot accept that their claim has been refused and are determined to do whatever it takes to remain in the UK.

A migrant in detention facing removal cannot raise legal proceedings to prevent removal themselves. As such, immigration lawyers are left to pursue their case, often with very little time and very little information. This is a recipe for disaster.

Guidance on the conduct of litigation

The message from the High Court is clear: immigration lawyers need to take greater care needs when accepting instructions in removal cases to ensure the court’s time is not wasted dealing with hopeless cases. The following guidance can be distilled from the judgement:

  1. “[A]ny lawyer appearing before the courts and tribunals owes a paramount duty to the Court” [43]
  2. Lawyers “must take all due steps to ensure that he or she has the fullest possible information before drafting any sort of an application to the Court or tribunal”[44]
  3. There is “no proper basis for arguing that there was no time to speak to the Home Office or OSCU or the previous solicitors” [44]
  4. A lawyer has “a powerful duty of candour to ensure that the Court is made fully aware of the limitation of the evidence that is then placed before the Court” [46]
  5. Where it has not been possible to obtain all necessarily information, a lawyer must “set out exactly why no steps have been taken to seek out and obtain the full background documents and facts. This might very well weaken the client’s case, because, by the very nature of the explanation, the Court might not be able to attach great weight to the facts relied upon. But this is the necessary price that must be paid.” [46] (emphasis in original)
  6. A lawyer should not take their client’s instructions at face value as “[c]lients in this field rarely have perfect recall of the facts and they cannot be assumed to know the law.” [48]

This may make sobering reading for immigration clients who may previously have been under the impression their lawyer’s paramount duty was to act in their best interests. It has always been a delicate balance; what this case makes it clear is that, when it comes to the crunch, the duty owed to the court must prevail.

Unprecedented judicial criticism of named firms

The lack of professionalism in the cases considered by the court (in part due to a failure to supervise unqualified staff) were particularly egregious. In the case of one firm of solicitors the court described the grounds as “irredeemably bad”, “devoid of principle, law or fact” and amounting “to no more than an inarticulate complaint that the client has suffered injustice and the Defendant has acted ultra vires and unlawfully.” [91]. When it comes to judicial criticism it doesn’t get much worse than that!

The three firms named in the judgment were referred to the Solicitors Regulation Authority.

There is clearly a public interest in ensuring any action raised in court is competent and coherently argued. But the judgment of the High Court in Sathivel is likely to deter lawyers from lodging even meritorious cases unless they can be certain that their client has provided them with a full and frank account of their circumstances. Even when furnished with all the relevant information, determining the prospects of successfully challenging a Home Office refusal or removal decision is a difficult task.

All lawyers will have had cases they felt were weak which were ultimately successful and cases they thought were strong which were ultimately unsuccessful. Although the question here is not whether the case is ultimately successful, but rather whether it meets the lower threshold of being arguable, lawyers will no doubt think twice before taking on a weak case for fear that it is later determined by the court not merely to be weak but to be unarguable.

In a nutshell, the message from the determination Sathivel is this: the court is no longer willing to carry out the task of determining the good cases from the bad. That is for immigration lawyers to do. Those that fail to do so effectively will be punished.

 

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