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Last minute judicial reviews: warning

Last minute judicial reviews: warning

The President of the Queens Bench Division, Sir John Thomas, has issued a dire warning to solicitors applying for last minute judicial reviews and injunctions in immigration cases. The comments come in the case of R (on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), which has still inexplicably not made its way to BAILII.

Sir John refers to the revised Form N463 for urgent applications and also later flags up that a new form is shortly to be introduced for out of hours applications:

The form was revised because the Administrative Court faces an ever increasing large volume of applications in respect of pending removals said to require immediate consideration.  Many are filed towards the end of the working day, often on the day of the flight or the evening before a morning flight.  In many of these applications the person concerned has known for some time, at least a matter of days, of his removal.  Many of these cases are totally without merit.  The court infers that in many cases applications are left to the last moment in the hope that it will result in a deferral of the removal.

The case of R (Madan) v Secretary of State for the Home Department [2007] EWCA Civ 770 is cited for the guidance there given by Buxton LJ reminding those applying for removal injunctions of the need for a prompt application at the earliest possible time, the need for full disclosure of previous applications and an explanation of how the current application differs from those and the need for full disclosure of any adverse matters or relevant authorities in an ex parte context. The possibility is raised of professional misconduct occurring “if an application is made with the view to postponing the implementation of a previous decision where there are no proper grounds for so doing.”

In this particular case the solicitor behind the offending application is not named. The court had ordered personal attendance by the solicitor with conduct of the case and the solicitor apologised to the court, thus apparently avoiding naming and shaming. Sir John thunders on, though:

7. However, we will for the future do the following.  If any firm fails to provide the information required on the form and in particular explain the reasons for urgency, the time at which the need for immediate consideration was first appreciated and the efforts made to notify the defendant, the court will require the attendance in open court of the solicitor from the firm who was responsible, together with his senior partner.  It will list not only the name of the case but the firm concerned.  Non-compliance cannot be allowed to continue.

8. That will not be the only consequence of failing to complete the requirements set out in this form.  First, one consequence may be that, if the form is not completed, the judge may simply refuse to consider the application.  Second, if reasons are not properly set out or do not explain why there has been delay or the reasons are otherwise inadequate, the court may simply refuse to consider the application for that reason and that reason alone.

9. These remarks apply equally to the form soon to be introduced for out of hours applications and the form for renewals when an application has been refused on the papers.

10. These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers.  The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules.  If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.

I doubt I am alone as counsel in saying that making out of hours telephone applications to a duty judge is one of my least favourite activities. Given the choice, I’d rather chew stones. This judgment will hopefully reduce the incidence of such applications, which should be made as early as possible and before the out of hours service becomes necessary. Where it looks like an injunction may be needed (in charter flight cases for example) the way forward to avoid slippage is to give the UK Border Agency a set time by which they must respond, failing which an injunction application will follow.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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