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“Torrent of time-wasting nonsense”: tribunal sends immigration adviser for OISC investigation

“Torrent of time-wasting nonsense”: tribunal sends immigration adviser for OISC investigation

The Upper Tribunal has referred an immigration adviser to the Office of the Immigration Services Commissioner (OISC), accusing him of running judicial review cases without a licence and failing to properly check expert reports.

The case is R (Hoxha & Ors) v Secretary of State for the Home Department (representatives: professional duties) [2019] UKUT 124 (IAC). It was a “Hamid” disciplinary hearing convened to review the conduct of Salman Shaheen Zafar, who practises as Zafar Law Chambers.

The tribunal suspects Zafar Law Chambers of being behind 100 abusive judicial reviews in 2018 alone. The challenges were all lodged by individual migrants, but had the same generic 42 pages of irrelevant material accompanied by a form in the same handwriting. The tribunal said that “there were a variety of pointers that led to suspicion that Zafar Law Chambers may have been behind this torrent of time-wasting nonsense”. Many of the decision letters being challenged had been sent to that firm’s address, for example.

As to the content of these judicial reviews:

The grounds consist of a series of submissions on public law topics such as standing, legitimate expectation, unfairness, unreasonableness, and also include general statements of law regarding paragraph 353 of the Immigration Rules and Article 8 ECHR relying only on case law prior to 2014, much of which was then obsolete. The grounds make no reference at any point to the individual claimant or the decision under challenge, and are therefore entirely meritless.

Mr Zafar said that while these were his firm’s clients, it had only acted for them up to the point of judicial review. The paperwork had been lodged by someone else. Mr Zafar first suspected a person called “Aida”, but by the time of the hearing produced two other men who owned up instead.

The tribunal decided that it was not equipped to decide who was responsible and kicked the matter to the OISC.

It did identify seven judicial reviews which it thought Zafar Law Chambers was conducting. The problem here is that the firm is not authorised by the OISC to run judicial review cases. Mr Zafar denied that he was actually engaged in “judicial review case management” and said that there were exceptional circumstances as to why he had intervened in the cases.

The tribunal said:

We take due account of the points made by Mr Gajjar, including Mr Zafar’s young age and his limited experience. We are, however, concerned that he did not appear to have a proper understanding of the limits of his authorisation and that he appears to have considered he had been acting appropriately in the cases mentioned under this heading. In particular, he cannot reasonably have thought that seeking the consent of the Upper Tribunal to withdraw a judicial review on behalf of a client is not acting in those proceedings, in a most direct and material way.

Also, having had due regard to Mr Zafar’s age and experience, we are concerned that he appears to have been persuaded to act outside his remit by the entreaties of clients. It is a commonplace of working in this difficult area that practitioners are faced with clients who are distressed at the prospect of being removed from the United Kingdom. This does not absolve such a professional from the need to stand firm and act only as authorised by the statutory scheme.

We therefore consider it necessary to refer Mr Zafar to the OISC on the issue of acting outside the limits of his authorisation.

The Home Office had also complained of receiving psychological reports on Zafar Law Chambers clients from a psychologist who had never actually met the clients in question. Instead, Mr Zafar’s brother had met the client to get information for the report. The psychologist followed up with a phone call to the client.

The Upper Tribunal said, with sarcasm visible from space, that “we make no judgement as to whether a credible psychological report can be obtained by an initial screening by an untrained assistant, followed up by a telephone interview with a detainee by a chartered psychologist”. It did say the contention that it was up to the psychologist how to go about her business was not good enough:

it is the role of a legal representative to ensure that any expert report accurately reflects the way in which the information in it came to be obtained. This is not something which can be simply left to the expert. Reports must be read and checked for accuracy on this point by the representative, and indeed for anything else within the knowledge of that representative. Representatives have professional duties in this respect and are not simply a postal service via which this evidence reaches the Secretary of State. The duties of experts to be clear about their methodology are set out in PP (female headed household; expert duties) Sri Lanka [2017] UKUT 117 (IAC).

It asked the OISC to investigate Mr Zafar over this issue as well.

Judges have referred several practitioners to the Solicitors Regulation Authority following Hamid hearings, but so far as I’m aware this is the first time it has happened to an OISC adviser.

The official headnote

(1) OISC organisations are only able to carry out judicial review case management with counsel authorised to conduct litigation if the organisations are both level 3 registered and have special authorisation to do this work.

(2) It is a commonplace of working in the difficult area of immigration and asylum judicial review, that practitioners are faced with clients who are distressed at the prospect of being removed from the United Kingdom. This does not absolve such a professional from the need to stand firm and act only as authorised by the statutory scheme.

(3) Where a medical expert report is relied upon by a legal representative, the representative has a duty to check the report for accuracy, including ensuring the report accurately reflects the way in which the information in it came to be obtained.

(4) Failure to carry out properly professional duties as set out above, inter alia, may result in the Upper Tribunal referring the legal representative / organisation to the relevant regulatory body.

CJ McKinney

CJ is Free Movement's deputy editor.

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