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Court of Appeal chastises barrister over conduct of asylum appeal


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Another shot fired in the ongoing skirmishes between judges, perhaps starting to feel some of the workload pressure that legal aid lawyers have been labouring under for years, and immigration practitioners. Last week a JUSTICE report ominously recommended “greater use of the Hamid procedure”, a hearing convened to haul practitioners over the coals for improper conduct. Little is said in the report of ongoing institutional ineptitude at the Home Office other than some vague and un-actionable exhortations to improve communications and improve decision-making.

Days earlier, the Court of Appeal had taken named counsel to task for “failing to adhere to proper standards of appellate advocacy”. The judgment, handed down on 28 June, is ME (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1486.

ME is a Tamil asylum seeker. His appeal against refusal of asylum was rejected by the First-tier and Upper Tribunals. The issue for the Court of Appeal was whether the First-tier Tribunal’s reasoning was so flawed as to give rise to an error of law. In short, it was, partly because it made findings of fact in a “binary” yes-or-no way: “where the question is whether there is a real risk that ME is perceived as a threat, a finding expressed in those terms does not squarely confront the relevant question”. ME’s appeal was allowed.

That did not stop Lord Justice Lewison from passing acid comment on the presentation of the appeal. He made four points:

  1. Leading counsel’s skeleton argument “ranged far beyond the grounds on which permission was granted”.
  2. When this was pointed out, counsel retorted with the proposition that the tribunals “have a free-standing duty to take ‘obvious’ points in an appellant’s favour even if he has not raised them himself”. While true, Lewison LJ said, this “Robinson” duty did not apply in the Court of Appeal. Unlike the tribunals, it is not part of the decision-making process. “Thus, although this court may give permission to appeal on a ground that was not argued before the FTT or the UT, the grant of such permission is not a licence to take whatever points occur to the appellate advocate in preparing for the appeal”.
  3. The 25-page skeleton argument was generally unsatisfactory. It consisted mostly of quotation and failed to “define and confine the areas of controversy by reference to the grounds of appeal, which it does not mention at all”.
  4. The bundle of authorities failed to comply with paragraph 29(2) of Practice Direction 52C.

He concluded by saying that “I appreciate the constraints under which practitioners operate in this field of law but that is no excuse for failing to adhere to proper standards of appellate advocacy”. Sir Kim Lewison, the product of a leading public school and Downing College, Cambridge, is the former head of specialist property law set Falcon Chambers.


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Colin Yeo

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.