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More judicial warnings to immigration lawyers


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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.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


5 Responses

  1. Until recently I worked as an MP’s caseworker and came across some clients who has been given extremely negligent legal advice (admittedly by solicitors rather than counsel). Some had been told to allow their leave to expire so that they could ‘make a human rights application’ and others had missed time limits or appealed decisions and just put the grounds of appeal as ‘this person does have a valid asylum claim’.

    Immigration clients are often extremely vulnerable, which is why it is a specially regulated area of advice provision in the first place. I believe in the independence of counsel, but where a lawyer behaves in a truly negligent way the judge is correct to criticise them fully and openly, to prevent them and others taking cases they are not competent or prepared to undertake properly in the future.

  2. When the judiciary, politicians, or civil servants point the finger towards alleged incompetence I personally get concerned as to the motive.

    When did any of these groups actually want improvement, or forward continuous professional development for themselves, or take criticism about themselves in a constructive manner.

    I personally think, for example, that civil servants can develop a “smoke screen” of their own inability by playing the credibility card of “I don’t believe you”.

    It can’t be comfortable being a lawyer in these areas of work, so you have my sympathy.

    If only any of John Vine’s criticisms of the UKBA held its culpable employees to account for their actions we would see a balance of improvement on both sides. Unfortunately we both know the probability of that happening.

    Talking of politicians behaviour, how on earth did this piece of hard-hearted, British child impoverishing, potentially EU breaching legislation get passed by the House of Commons?

  3. Perhaps easier rules and better decision making by UKBA and FTT would help? But why change a rotten system eh? Things are quite rough and getting rougher all the time it seems …

  4. No-one is going to defend incompetent or below par representation. Having said that, it does raise concerns as you say. Couple of things:

    (1) The timing is interesting – why is this being done now?

    (2) I agree that it is potentially a dangerous course that the Court is going down. The question of whether an argument is ‘totally without merit’ is not clear cut. For example, in 1930 the Courts had confirmed the long standing rules of negligence (see http://www.bailii.org/scot/cases/ScotCS/1929/1929_SC_461.html) and a lawyer who was asked whether a lady could sue a drinks manufacturer due to a snail in a bottle her friend had bought for her should advise that it had no foundation in law, flies in the face of all authority and had all the appearance of being ‘totally without merit’, but we all know the rest.

    That’s an extreme example, but the point is that the question of what is an argument that is on the edge, or a very weak one, versus one that is truly without merit, is a difficult judgment call (especially if done at a scramble for an emergency injunction).

    Even if this is a clear cut case, it is potentially the start of a slippery slope.

    (3) Another way of remedying the problems (or perceived problems) would be to increase funding so that firms are able to devote more resources to their cases. It would be nice to see the Admin Court suggest this as well.

    I don’t know anything about these cases and am not suggesting that the judgment of the Court is in any way wrong, but if there is going to be naming and shaming of lawyers, maybe the lawyers should start doing the same to judges? In America there is an interesting website – http://www.therobingroom.com/ – it states that is “a site by lawyers for lawyers. Our mission is to provide a forum for evaluating federal district court judges and magistrate-judges.”

    Maybe it’s time for us to have something similar here?

  5. As a trainee solicitor on the verge of qualifying, and having had 7 years of experience working in solicitors firms and law centres/charities etc, I do believe that immigration law is the only are where such incompetence is all too common.

    As my colleague puts it, immigration lawyers are either excellent (the good majority) or downright poor – there is no middle ground.

    I have received a file transferred from a firm where the Upper Tribunal has refused permission to appeal to itself. What were the grounds?

    “Judge biased. The appellant should success on Art. 8 and natural justice.”

    These grounds or this pleading were submitted unaltered in both applications for permission before the FTT and the UT (and with the grammatical error at that – “success” instead of “succeed”). I am trying to figure out what is worse – the writing up of such grounds in the first place or the fact that the lawyer did not take the hint when such grounds were refused by the FTT and he/she submitted the same to the UT unaltered.

    The equivalent of this scenario in Employment Law, Family Law, Personal Injury Law or any other area of law does not seem to be as prevalent as it is in Immigration Law.

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