A barrister … must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person (para 302, Code of Conduct of the Bar of England & Wales)

Sir John Thomas has delivered two further full blooded warnings to immigration lawyers in the cases of R (on the application of B & Anor) v Secretary Of State For The Home Department & Anor [2012] EWHC 3770 (Admin) and Awuku (No 2) & Ors v Secretary of State for the Home Department [2012] EWHC 3690 (Admin).

In the B case both linked cases involved clear incompetence on the part of the advocates, who advanced arguments that were sheer legal nonsense. SJT (looks like there will be more and more of this stuff, an acronym may save time here) icily observes that if the arguments were not made incompetently they must have been made deliberately and cynically.

In the first case Counsel apologised personally to the court and undertook not to practice in immigration law without further training and speaking first to colleagues in chambers, thereby escaping SJT’s penchant for naming and shaming. He or she had suggested that if Article 8 is engaged in a case, the case must succeed, apparently unfamiliar with Article 8(2) itself as well as every human rights case since at least Razgar. The solicitors were reminded they need to instruct competent Counsel.

In the other case a solicitor advocate attempted to judicially review a refusal of permission by the Upper Tribunal (always liable to upset certain High Court judges anyway) but did so with grounds addressed entirely to the original decision of the Home Office, now months out of time and against which an appeal had already been pursued and failed. The application was thus totally misguided and doomed to fail and was downright incompetent. The firm responsible avoided the stocks by apologising profusely, explaining that their policy was for such applications to be made by Counsel never an employee of the firm and undertaking to supervise the responsible solicitor properly in future.

The distinction between legally nonsensical arguments and arguments that have little to no merit is an important one. It is to a lawyer, anyway, even if it is the sort of hair splitting that makes us marginally less popular than estate agents. Advancing an argument with little to no merit is, for a barrister, an unpleasant professional obligation. The Bar Code of Conduct obliges barristers to accept instructions and the only explicit limits on what we can be instructed to do are, I think, set out at para 302 (‘A barrister has an overriding duty to the Court to act with independence in the interests of justice: he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court’) and para 704(b) (must not draft any document containing ‘any contention which he does not consider to be properly arguable’).

SJT’s restatement of a lawyer’s duty to the court, taken from Lord Denning MR in Rondel v Worsley [1967] 1 QB 443 at 502, is a useful reminder to us all, though:

He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants, or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that is fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court.

The other of the two reported cases, Awuku (No 2), seems to have been the outcome of a new matter list of potential offending immigration lawyers, collectively hauled down to court to explain themselves before the judges in some sort of Star Chamber. I heard that in one case the barrister’s brief had omitted a page from a document to which, naturally, the barrister made no reference. The barrister was let off the hook. This will be little consolation to someone who loses a day’s work and probably a bucket load of sweat wondering if one’s professional career will be in tatters. Will such a person or their colleagues be reluctant to get involved in injunction applications in future? Is this perhaps part of the point of this exercise? Intimidating lawyers into stopping making these pesky applications?

We immigration lawyers are no doubt annoying. So too, to many in our society, are immigrants. Judges are irked that after stellar careers in profitable and intellectually stimulating areas of law they are reduced to deciding mere immigration cases, sometimes of highly questionable merit, as if they were the lowest rung of the tribunal judiciary. This naming and shaming of lawyers is unprecedented, though.

Representing unpopular minorities has never been easy. Looking through some of the litigation around the Birmingham Six there is no criticism of the lawyers despite findings of abuse of process: see McIlkenny v. Chief Constable [1980] 1 Q.B. 283, infamous for the ‘appalling vista’ quote from Lord Denning, and Hunter v Chief Constable [1982] AC 529. Those claims appeared to be considered to be ‘totally without merit’ by the courts but the lawyers weren’t hauled over the coals for making the arguments.

Sir John Thomas has embarked on a very dangerous course. Will SIAC lawyers be next? Criminal defence lawyers for terrorist suspects? If it is true there is a new ‘defaulting immigration lawyer list’ at the Royal Courts of Justice, I for one have a family to feed and may decide to stop being available for out of hours work like injunctions. I’ve done three injunction applications in the last few weeks I can think of, two of which succeeded. If I need to start worrying about being hauled down to court for doing my job then I may well stop.