Following on from two recent posts on this subject (Judicial review in the Upper Tribunal, Do not lodge Upper Tribunal judicial reviews by post if urgent), there has been another warning about the transfer of judicial reviews into the Upper Tribunal. A claim that includes an element of unlawful detention must remain in the High Court according to the Lord Chief Justice’s Practice Direction on transfers. In the case of R (on the application of Ashraf) v Secretary of State for the Home Department  EWHC 4028 (Admin) Cranston J goes on the war path:
It seems to me that to lodge a challenge to removal in the Administrative Court, including a ground going to the lawfulness of detention, when there is no obvious distinct merit in that aspect, could well constitute an abuse of process by the lawyers engaged in the case.
Just why Mr Justice Cranston thinks that immigration lawyers would deliberately include a meritless ground of a claim in order to appear in the High Court rather than the Upper Tribunal is a bit of a mystery.
He goes on specifically to threaten Hamid–style proceedings and/or costs sanctions against any such lawyers. Note that the lawyers involved in this case are not sanctioned and their conduct not criticised, despite some very grumpy final words from the judge. Indeed, it was Declan himself who flagged this up with me for the attention of Free Movement readers.
Speaking from an advocate’s point of view, it seems that Hamid-style Star Chamber proceedings are now going far beyond sanction for deliberately misleading the court or deliberately lodging late injunction applications. Some judges are using them as a cudgel to threaten representatives for reasons that are, frankly, rather questionable.
In this case the judge’s threats were based on a disagreement about the legal merits of one aspect of the case. Funding had been granted some time previously for the unlawful detention challenge and many claimant lawyers would say there was an obviously arguable case that detention was unlawful based on the independent medical report and the other facts of the case. Home Office policy is not to detain victims of torture where there is independent evidence of torture and there was independent evidence in this case.
Further, some of the findings and the old, outdated case law relied on in the judgment are potentially open to criticism. The age old allegation that a doctor is a mere scribe for the patient resurfaces, for example. This is based on no evidence, misunderstands the role of the doctor and utterly devalues clinical method and opinion. In the intervening years the immigration tribunal has moved on from such a blinkered, arguably arrogant, approach so it is a shame to see it dredged up in the High Court.
It looks like we can expect Mr Justice Cranston or others to haul some other immigration lawyers over the coals in the near future. How many of us will be left willing to accept instructions for injunction applications? Is that the point of these hearings? Or are these threats becoming so routine and absurd that they risk losing their effect?