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Time to stop lawyer bashing and look at where the real fault lies….
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Carrying on from FM’s open season article last week, it is clear that immigration lawyers are getting a hard time of it at the moment: first it was judge bashing and now the lawyers are in the firing line. The pernicious pastime of naming and shaming the legal profession needs to stop. Fearlessness is needed for us to do our jobs properly, particularly those of us representing or judging vulnerable migrants, a group even lower in the public’s esteem than politicians. That is made just a little bit harder where there is a risk of judgment in the kangaroo court of public opinion.
Under attack themselves, we have seen the judges in turn criticising claimants and their lawyers. What of the Home Office, though? The Chief Inspector of the UK Border Agency last week published a damning report on the UK Border Agency’s handling of old asylum cases. The report highlighted how the Home Office has mismanaged the “legacy” fiasco, of which regular blog readers will no doubt be aware. In short, in 2006 the Home Secretary promised that unresolved asylum “legacy” cases would be dealt with by July 2011 either by granting Indefinite Leave to Remain (ILR) or removing a person. There was in addition to this, a list of factors against which cases would be considered and prioritised accordingly (or not).
In his damning report, Chief Inspector John Vine said the following:
I found that the transition of work from the Case Resolution Directorate to the new Case Assurance and Audit Unit was poorly managed. The volume of the remaining work to resolve legacy cases was not anticipated by the new unit. As a result, CAAU was quickly overwhelmed by the casework and the associated high levels of correspondence from MPs, legal representatives and applicants. I have commented previously about the importance of effective governance during major business change initiatives. I was therefore disappointed to find that a lack of governance was again a contributory factor in what turned out to be an extremely disjointed and inadequately planned transfer of work. Such was the inefficiency of this operation that at one point over 150 boxes of post, including correspondence from applicants, MPs and their legal representatives, lay unopened in a room in Liverpool.
In addition Mr Vine also noted that the legacy cases were far from being concluded, stating specifically that the UKBA had resiled from their aim of concluding these cases by either granting leave or removing:
As with many of my previous inspections, I identified that customer service outcomes were poor. I found significant opportunities to improve both general correspondence handling and complaints handling.
Mr Vine also notes that the delay caused by the backlog has and is continuing to have serious repercussions for those waiting in this system.
The UK Border Agency has been caught lying to Parliament, allowing a backlog of 100,000 unopened letters to build up and dismally failing to deliver on general and case specific promises to decide cases by set deadlines. Legacy lawyers and litigants caught up in the whole shambles have long known there was arbitrary chaos behind the bland Agency assurances. Media coverage has been appropriately coruscating. The judicial response… has been tolerant and trusting in case after case.
The one case so far in which a higher court judge has found in favour of a Legacy litigant is Mohammed, in which Deputy High Court Judge Stephen Morris QC found that the failure to apply published policies in respect of promises made under Paragraph 395C was deemed unlawful. This and the new Chief Inspector report perhaps provide legal ammunition for re-opening the argument that the Legacy decisions made by the Agency are unacceptable and unlawful.