How do you persuade a Home Office caseworker to grant your client’s asylum or immigration application? Or persuade a judge to allow your client’s appeal? The answer is: advocacy. Advocacy – whether written or oral – is the art of persuasion.
I am by no means an expert. However, having spent the last nine months training to be an advocate (the Scottish equivalent of a barrister), I thought I would share my top 10 advocacy tips. I cannot take credit for any of them. They are all things I have read or been told over the course of my training with the Faculty of Advocates.
Advocacy is not just making submissions in court. When you write a letter of representation to accompany a visa application, you are also engaging in advocacy. The tips below apply equally to oral and written advocacy so they will hopefully be of use even to those who never present cases in courts or tribunals.
1. Simplify things wherever possible
Immigration law is complicated. This is something we go on and on about on Free Movement. However, focusing on this broader complexity will rarely further your client’s cause. Decision makers don’t like complexity.
As previously highlighted on this blog, in the context of Pre-Action Protocol letters, it is easier for a Home Office caseworker to defend a decision than to concede (which requires approval of a supervisor). Make it as easy as possible for them to do what you want them to do. Help them reach the conclusion you want them to reach.
You should be able to summarise your case in a sentence or two – stripping it back to the bare essentials and focusing on the most relevant aspects. Put this simple and succinct summary at the start of your letter or submissions.
Also aim for simplicity of language. Clear, simple, and concise language is always preferable to lengthy waffle.
2. Be precise
Avoid paraphrasing the facts or evidence. If you incorrectly summarise the case, or misstate an important fact, then you will lose credibility. The decision maker needs to be able to trust that what you say is correct. Use the witness’s own words where possible (either from their statement or oral evidence).
For instance, don’t say the applicant has “no family” in their country of origin when their statement reveals that there is a sister and several cousins living there. What you probably mean to say is that there is no one who can support the applicant. Say that. You can then go on to explain the reasons why the sister and cousin cannot support the applicant.
Also be precise when it comes to the law. Referring to legislation, case law, or a policy document without citing a section, paragraph, or page number is rarely of much use.
3. Don’t over egg the pudding
This is linked to the last tip. You will also lose credibility if you exaggerate. Don’t describe a minor illness as serious. Don’t suggest something is impossible when in fact you mean it would be very difficult. Be realistic about the strengths of the case. Be as honest as possible about its weaknesses (without acting against your client’s interests). Concede the minor points. Fight the important points.
Your aim should be to appear as though you are an impartial guide, slowly leading the decision maker, reasonable step by reasonable step, to the conclusion you want them to reach.
4. Use case law sparingly
Does what you are saying need to be backed up with authority? If what you are saying is uncontroversial the answer is probably no. Before citing a case, consider whether it adds anything to your argument. The decision maker will not thank you for citing a case which isn’t really relevant, or which turned on its own facts.
What is the legal proposition you are relying on the case to establish? State this as succinctly as possible, cite the case, and move on. For instance:
“The Secretary of State must follow her published policy unless there are good reasons for not doing so (Lumba v Secretary of State for the Home Department  UKSC 12 at ).”
A lengthy explanation of the facts of the case, or the procedural history, is rarely necessary. If it is not relevant to the argument you are making, leave it out.
5. Don’t assume knowledge
It is very likely that the person reading your letter, or listening to your submissions, has only just picked up the case recently. They won’t be familiar with the background. Be careful when using phrases such as: “as you will be aware…”. Most of the time the reader will be completely unaware of what you are about to say. Assuming they already know everything won’t help them reach a decision in your client’s favour. Tell them what they need to know and tell them why it means you should get what you are asking for.
6. Don’t ask rhetorical questions
You’ll inevitably get an answer. By asking a question, you are inviting the decision maker to think about an answer. For instance, if you ask the question – “What could have possibly caused these injuries other than the torture which the appellant complains of?” – the decision maker will start thinking about all the other possible causes. That doesn’t help your clients case. Coming up with other possible reasons for the injuries is the direct opposite of what you want the decision maker to do!
If you’re lucky, the answer will be formed in the decision maker’s head and may be subsequently forgotten. If you’re unlucky your opponent will remind everyone of your question and provide an answer. Or worse still, the judge will interrupt your submissions to give you the answer. If you push, they’ll push back.
7. Consider the other side of the argument
This may seem obvious but can be difficult when you have never acted for the other side. Most immigration practitioners have never argued a case from the Home Office’s perspective. However, you can’t accurately assess the strength of your own case without considering the strength of theirs. Think about how you would argue the case from the other side. It’ll help you identify, and hopefully resolve, the weaknesses in your own arguments.
8. Use categorisation and analogy
If you can present a coherent conceptual framework for your argument, it will be much more convincing. If your interpretation of the law only works in the particular circumstances of your case, it is probably wrong. You need to show that it fits with the wider legal framework.
This may involve distinguishing between procedural and substantive rights. Showing that all of the cases against you fall into one category, and your case falls into another. Taking a case from a different context and applying it to your case by analogy. Or using a metaphor to get your point across (you can decide whether or not this works after reading the next tip).
9. Interrogate the trees
The phrase “You can’t see the wood for the trees” is used when someone is focusing too much on the detail and cannot see the bigger picture. However often the detail is what is important. Sometimes you need to look at the trees. Sometimes you need to interrogate each of the strands that make up the whole. This is particularly true in cross examination (the context in which the advice was given to me).
It also applies to expert reports. Don’t just accept the expert’s conclusions. Examine each of the things that lead to the overall conclusion. On closer inspection the trees may be telegraph poles, which somewhat undermines the conclusion you’re looking at a wood! Make sure the conclusion is justified and can withstand the tribunal’s scrutiny.
10. Manage your client’s expectations
Sometimes, despite following all of the tips above, you will still lose. Perhaps the facts of the case just aren’t strong enough, vital evidence isn’t available, or the law is against you. This can’t be helped. All you can do is properly prepare your client (and yourself) for this outcome. Advise them of the strengths and weaknesses of the case. Be honest. Be realistic. Don’t make promises you can’t keep.
If you are interested in reading more about advocacy I would recommend ‘The Golden Rules of Advocacy’ by Keith Evans and ‘The Devil’s Advocate’ by Iain Morley QC.