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Judicial toolkit for dealing with miscreant immigration lawyers

The previously reported case of R (on the application of Bilal Mahmood) v Secretary of State for the home Department (candour/reassessment duties; ETS :alternative remedy) IJR [2014] UKUT 439 (IAC) has been re-titled and I think the headnote has been supplemented as well. The case is important on the ongoing saga of how far out of country appeals are an adequate remedy (relevant but far from determinative in the context of the very different statutory context of section 94B “deport first appeal later” certificates) and the current President’s impatience with the conduct of judicial review proceedings (see also Muwonge). The judgment goes a lot further than that though, and the headnote is very far from a complete guide to the case.

For good measure, the full judicial toolkit for providing incentive to comply with the applicant’s ongoing duty of candour in judicial review proceedings is laid out: refusal of permission, declaration of abuse of process, personal wasted costs orders against solicitors and counsel, Hamid-style star chamber hearings and referral to the appropriate regulator. These tools seem pointedly designed for use on applicants and their lawyers rather than respondents and their lawyers, despite comments on the duties of both.

Also not mentioned in the headnote is the President’s suggestion that the practice of serving Applicant witness statements with applications for the judicial review should be revived:

Undeniably, a comprehensive witness statement, addressing all material issues and attaching all available relevant documents, signed by the Applicant, will be required in certain judicial review cases in UTIAC. The need for this will be dictated by a combination of the particular context, the Applicant’s duty of candour to the Upper Tribunal, good practice and the overriding objective. In practice, the reality is that the completed Judicial Review Form, supporting grounds and any accompanying documentary materials frequently fail to set forth all material facts and omit relevant documentary evidence.. Furthermore, at the initial stage of the proceedings, there is no scope for facts to be agreed inter partes. It is not possible to attempt any exhaustive prescription. However, it is self evident that where the Applicant’s case relies on alleged facts which are not documented in the papers – such as conversations or dates of receipt of documents or verbal assurances or promises allegedly given, or facts which have previously been disputed by the Respondent – these will have to be fully addressed in a carefully composed witness statement. In the examples given, the evidence will be incomplete and the Applicant’s duty of candour owed to the Tribunal will not be fulfilled without a thorough and candid witness statement. Observance of this discipline in those cases where it is appropriate will further the ends of justice and, if the statement is truthful, accurate and comprehensive, will avoid misusing the process of the Upper Tribunal. This requirement, where it arises, is not dependent on any procedural rule or judicial case management direction.

The actual, rather bland, headnote reads:

Duty of candour and misuse of process

(1) The lodgement of permission and/or interim relief papers in a judicial review application is a beginning, not an end.

(2) If an application for permission is overtaken by supervening events or is otherwise rendered moot, there is a duty on the Applicant’s solicitors to take appropriate and immediate action. This will include proactively communicating with this Chamber and the Respondent’s representatives.

(3) From the inception of the proceedings and in particular following receipt of the Respondent’s Acknowledgement of Service, there is a duty on every Applicant’s legal representatives to conscientiously reassess the viability and propriety of their client’s application for judicial review and to consider whether any further procedural step is required. If the Acknowledgement of Service renders the challenge unsustainable, appropriate withdrawal steps must be initiated promptly.

(4) Unjustifiable delays in the finalising and execution of proposed consent orders and lack of communication with the Upper Tribunal in this context are unacceptable.

Judicial review and alternative remedy

(5) A person whose leave is invalidated on the basis that the Secretary of State considers deception has been used in connection with an application for leave will, at present, normally have an out of country right of appeal.

(6) The availability of that right is, presumptively, an adequate alternative remedy to be pursued by the person concerned. As a result, a judicial review challenge to the Secretary of State’s decision will fail, in the absence of evidence showing special or exceptional circumstances.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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