President McCloskey has blasted the “cavalier and unprofessional” lawyers for both claimants and the Home Office in his latest determination of Shabir Ahmed and others (sanctions for non – compliance) [2016] UKUT 00562 (IAC). The case is that of four men convicted in 2012 of child sex offences in Rotherham who were subsequently stripped of their British citizenship. The appeal is against deprivation of citizenship. Inevitably, there has been media coverage.

The President does not mince his words:

The Upper Tribunal has been treated with sustained and marked disrespect. The conduct of these appeals has been cavalier and unprofessional. The rule of law has been weakened in consequence.

Some of the exact criticism is a little difficult to discern, although I’m sure the lawyers were left in no doubt. The thrust of it is that the lawyers supposed to be driving forward an important and sensitive case of public importance had failed to take the case seriously.

The claimants’ solicitors are criticised for “repeated unmeritorious requests” of an adjournment, failing to produce a hearing bundle or skeleton argument and failing to provide papers to their “instructed” barrister.

The Home Office lawyers are criticised for very late production “figuratively, at the 59th minute of the eleventh hour” of a skeleton argument in egregious breach of directions and then only in response to heavy prompting from the tribunal. Only a “feeble and unacceptable excuse” was proffered for this default and then only when prompted by the tribunal. Whether the conduct was that of the Government Legal Department or their barristers is unclear.

The President then refers to criticism of of the Home Office itself and then also government and claimant lawyers for very poor behaviour in several other specific cases.

One of these cases is R (on the application of Saha and Another) v Secretary of State for the Home Department (Secretary of State’s duty of candour) [2017] UKUT 17 (IAC), in which the President is very highly critical of the Home Office for its failure to appreciate the importance of the duty of candour and the “solemn obligations” which this entails:

In our judgement it is impossible to overstate the importance of the duty of candour in judicial review proceedings. The value and force of judicial review in a society governed constitutionally by the separation of powers and built on the rock of the rule of law is founded on, inter alia, a relationship between the executive and the courts akin to a partnership. The executive, for its part, guarantees that the court will be fully armed and equipped to adjudicate in every case. The court, for its part, guarantees, in accordance with the judicial oath of office, independent and impartial adjudication.

The Government legal team had been placed in an impossible position by the failures of their client, the tribunal had been treated with contempt and “it would be no surprise if litigants have no real faith in how the Secretary of State conducts litigation of this kind.”

In a further case, VA (Solicitor’s non-compliance: counsel’s duties) Sri Lanka [2017] UKUT 12 (IAC), the President complains that the tribunal was “blackmailed” by the claimant’s solicitors into adjourning the appeal by “egregious professional default.” The solicitor was required to attend the tribunal in person to explain and meanwhile the barrister was admonished for seeking to defend the solicitor:

Where solicitors default in their conduct of proceedings, whether by non-compliance with procedural rules or practice directions or specific case management directions or otherwise, it forms no part of instructed counsel’s duty to defend the instructing solicitor. The misconception to the contrary was evident in the present case and has manifested itself in others. Counsel represent their client: they do not represent their instructing solicitor.

Barristers are warned that where there are serious professional failings by a solicitor, it “would be prudent of counsel to proactively ensure that the instructing solicitor is in attendance at the hearing in such cases” and to be aware that the tribunal will not expect to hear from counsel but rather from the solicitor.

Finally, returning to Shabir Ahmed, the President warns, for what seems like the umpteenth time, that the tribunal’s patience is exhausted:

The Upper Tribunal will, henceforth, have recourse to the full panoply of sanctions at its disposal. These include in particular wasted costs orders. There will also be reporting of rulings of this kind. Furthermore, consideration will be given to the invocation of the Upper Tribunal’s contempt powers, together with referrals to professional bodies.

Reporting of these so-called “Hamid cases” (after the first in a line of cases criticising immigration lawyers) has certainly not improved matters, whereas unreported referral to professional bodies has led to drastic consequences for the lawyers concerned.