At a time when immigration practitioners are facing a wave of referrals and allegations of misconduct, the Upper Tribunal’s decision in Shah (‘Cart’ judicial review: nature and consequences) [2018] UKUT 51 (IAC) comes as another timely reminder that judges are in no mood to deal with haphazard or slapdash appeals and judicial reviews. The take-home message was simple: if practitioners falsify or misrepresent grounds for judicial review, they can expect the appropriate sanctions to follow.

There has been a recent surge of practitioners being publicly named and shamed, whether it be for misleading the court or plain old “incompetence”. The ultimate sanction in such cases is referral to a “Hamid court” to consider the conduct of the solicitors bringing these unmeritorious claims. It’s safe to say that a referral to a Hamid court is the legal professional equivalent of execution by firing squad.

The background

The appellant, Mr Shah, had held indefinite leave to remain since 1999. His application for naturalisation was refused in 2005 with reference to his history of criminal convictions. Since that refusal, Mr Shah had accrued some 49 months of custody for various offences including robbery and assault on a constable. In October 2016, he was served with a decision to deport which was appealed.

Despite Mr Shah having a settled wife and children, as well as taking steps to address his drug and alcohol addictions, ultimately the risk of re-offending proved to be too much. The original appeal decision was a credit to the First-tier Tribunal judge who engaged in one of the most detailed and careful balancing exercises I have seen; the Upper Tribunal engaged with it at significant length.

Applications to the First-tier and Upper Tribunals for permission to appeal failed. Undeterred, the solicitors launched judicial review proceedings against the Upper Tribunal’s refusal of permission. The grounds referred to a failure to consider “very significant obstacles to interrogation” (yes, that’s what they really said). They also said that the Court of Appeal had granted permission to appeal in two cases which were “exactly the same” as the present one.

A deputy High Court judge was persuaded to quash the decision refusing permission to appeal, without an oral hearing, and the matter came back before the Upper Tribunal.

The importance of appropriate written submissions

In a scathing determination, a frustrated President Lane reiterated that grounds for judicial review should emphatically not raise entirely new grounds that were not raised before the judge at the hearing. Neither should the grounds make vague assertions about a judge’s alleged failure to deal with matters such as “fairness” without specifying exactly what that failure is.

It also became apparent that the cases in which the Court of Appeal had granted permission to appeal were not as similar as had been said in the grounds for judicial review. While they both considered the meaning of the phrase “very significant obstacles to integration”, the tribunal found the claim that the cases were identical to be “obviously bogus” and “seriously problematic”.

Overall then, the Upper Tribunal was not impressed by the appellant’s agents, Malik Law Chambers, who were said to have “settled” both applications for permission to appeal and the grounds of appeal to the First-tier Tribunal (paragraphs 50 – 51).

It seems like it is open season on immigration practitioners these days. What cannot be emphasised enough is that written advocacy is at the very least equally important as oral advocacy, something which practitioners routinely overlook.

Practitioners need to spend the extra time and effort to develop written submissions and arguments in a manner which is coherent and succinct. Unpicking a complex argument and breaking it down into manageable pieces that a judge can understand is a real skill.

Copy and paste is not. Neither are one-line grounds of appeals or applications for permission to appeal (and believe me, I have seen some shoddy examples). A careful balance needs to be struck between being succinct and explaining how the judge or decision-maker erred.

Home Office guidance a mere aide memoire?

All well and good. But one particular comment (albeit obiter) does not sit easily with me. At paragraph 66, the Upper Tribunal said:

In any event, the categorisation of the instructions as a policy is misconceived. In the immigration field, a policy of the respondent concerns the circumstances in which the respondent may be expected, as a general matter, to grant leave to remain or take some other decision under the Immigration Acts. Here, the instruction is merely a form of aide memoire to case workers on how to consider whether there will “be very significant obstacles to integration” in a particular case. The judge’s own assessment of the matter was not rendered defective because he did not adopt this aide memoire…

The guidance in question is Appendix FM Section 1.0b (Family Life as a Partner or Parent) and Private Life: 10-Year Routes (August 2015). The guidance says that it:

must be used by decision makers considering whether to grant leave to remain on a 10-year route to settlement… or where considering whether to grant leave to remain outside the rules on the basis of exceptional circumstances.

Even on the most generous of readings, the clear intention behind the guidance seems to be that caseworkers “must” utilise the guidance to come to certain conclusions. There is nothing to say that the guidance “suggests” how caseworkers “might” decide a claim.

It is trite law that if a decision maker publishes a policy or guidance about how particular decisions will be made or how a particular power will be exercised, the decision maker will err in law if, without explanation, he departs from that guidance (see, for example, Secretary of State for the Home Department v Abdi [1996] Imm AR 148).

What is even stranger is that in SF and others (Guidance, post–2014 Act) [2017] UKUT 120, President McCloskey referred to the exact same guidance and said:

the Tribunal ought to take the Secretary of State’s guidance into account if it points clearly to a particular outcome in the instant case. Only in that way can consistency be obtained between those cases that do, and those cases that do not, come before the Tribunal.

Had the guidance been put before the First-tier Tribunal and been rejected without adequate reasons, it may well have formed the basis for an appeal.

The new President’s comments cannot be right. How can decision-making be consistent if the same principles and assessments are not employed by the tribunal and the Secretary of State? There is now a glaring inconsistency between two Upper Tribunal decisions. Giving caseworkers the power to depart from policies without any adequate reasons is a recipe for disaster in an already broken immigration system.