Updates, commentary, training and advice on immigration and asylum law

Two Hamid referrals made in asylum cases where out of hours injunctions were sought

The High Court has heard three Hamid referrals, two of which concerned asylum cases and one of those resulted in a referral to the Solicitors Regulation Authority. Given the professional implications, any practitioner reading this should already be well aware of the Hamid jurisdiction, which is essentially a disciplinary process that can result in a referral to the applicable regulator. Our explainer is here and for members, this module on procedural rigour in our judicial review training is very helpful on what should be done with urgent applications.

This case is R (Tota) v Secretary of State for the Home Department (Re Referrals under the Hamid Jurisdiction) [2024] EWHC 665 (Admin).

The first case

On 16 May 2023 Ms Haider of Sterling Winshaw Solicitors made an out of hours application to the High Court asking for an urgent interim order to stay the removal of her client. She put her name in the box headed “Solicitor’s name”. Earlier that day, she had made an application to the Upper Tribunal for urgent consideration of interim relief for the same case, had named herself as the respondent and signed the form as an authorised legal representative.

The High Court duty judge noted that the information on the out of hours application form contradicted that provided the Home Office. Other concerns included that supporting documents had not been provided, the court was not told that the client had not attended his asylum interview and had been told that if a reasonable explanation was not given then removal directions would be issued and that the application was being made 13 days after the client had been given the removal directions, without any explanation as to the delay.

As the court was unable to find Ms Haider on the SRA website, when they wrote to her regarding these matters they copied in Mr Sarpong, director at the firm. In addition to the courts concerns above, the letter said that the court had been unable to confirm that Ms Haider was a solicitor, no claim for judicial review had been made, the out of hours application had not been filed and the court fee had not been paid.

A list of questions were set out in the letter and an explanation was required that addressed all of those. This was not done. Ms Haider provided a witness statement that made clear she was not a solicitor, having started but not completed a law degree in 1992. She said that the lack of supporting documents was because these had not been provided by the client and she had relied on what he had told her in a telephone call. After he was removed, she did considered the application to be void which is why she had not carried out the rest of the required actions including payment of the fee.

The court again wrote to Ms Haider, copied to Mr Sarpong, and a further witness statement was produced. In response to the court’s request that she identify changes that would be made and her training needs addressed, she said that would look into training on out of hours injunctions. The court said “apparently on the basis that she intended to continue to make such applications on behalf of the firm”.

A show cause letter was then sent directly to Mr Sarpong, who had not responded to the previous letters. He did respond to this letter, but the court raised concerns about that, including that he did not recognise that Ms Haider should not have been completing and signing the court forms and there was no mention of any disciplinary action being taken.

The court concluded that:

The concerns expressed by Collins Rice J about the application made on 16 May 2023 appear to be well founded. In addition, the fact that Ms Haider falsely represented that she is a solicitor authorised to conduct litigation on two different court forms is a serious matter. Even now, it is not clear that the firm has appropriate systems in place to supervise paralegals, or that Mr Sarpong has taken sufficient steps to prevent any repetition of what occurred in this case, with Ms Haider or more generally. Though Mr Sarpong has apologised to the court, he was Ms Haider’s supervisor at the time; and it is a matter of concern that he did not appear to appreciate the seriousness of what had happened until sent a show cause letter himself.

The matter was referred to the Solicitors Regulation Authority.

The second case

This was another urgent application seeking a stay on removal of a client. The firm was Larkhill Law Solicitors and the application form stated that it had been completed by a solicitor, Ms Virdi. It was emailed to the court by Ms Dardha, a paralegal. In the box asking for the reasons for needing out of hours consideration it was written “see attached”.

No explanation had been made as to why the application was being made so late. No mention was made of the fact that the application had been considered earlier in the day by the Upper Tribunal and refused as the asylum claim had been certified as clearly unfounded and the grounds had not challenged that decision. The High Court said that:

There was also no serious attempt to put forward a case based on public law principles. It appeared that the firm had been recently instructed and were merely seeking further time to ascertain what their case might be. Ms Dardha had also appeared to be deliberately unclear as to whether a hearing was sought in email exchanges that she had with the clerk to Linden J. It did not appear that Counsel had been instructed.

The out of hours application was refused and the duty judge made a Hamid referral. Following the show cause letter from the court, both Ms Virdi and Ms Dardha produced witness statements. Following a further letter from the court, second witness statements were produced by both of them.

Ms Virdi explained that she was a child protection specialist who had hired Ms Dardha as a part time consultant to dealt with inquiries from the local community in relation to immigration matters, describing her as an “Albanian born British citizen who hoped to take advantage of her language and legal skills to cultivate new business within the Albanian community”. Ms Virdi said that she had been unaware of the case that led to the Hamid referral and that Ms Dardha had acted without her knowledge or authority

Ms Virdi told the court that Ms Dardha was currently suspended under the firm’s disciplinary policy while an investigation was being carried out. Ms Virdi apologised to the court and said that this never should have happened and that she was implementing robust procedures to avoid further incidents. In the second witness statement she said that Ms Dardha had been told that her services were no longer required.

In her witness statement, Ms Dardha said that the firm had asked her to sign an incomplete draft of her witness statement, and she had done this on the express basis that she would be sent a final version for approval. She said this had not happened and so her witness statement did not contain a full and accurate account of what had happened.

Ms Dardha said that another partner at the firm was aware of her work on the case that was the subject of these proceedings. She said that she had been pressured to carry out the work as the client’s family were desperate. She was not paid for the work and paid the court fees with her personal credit card. All applications that she had made were done without the knowledge of Ms Virdi, and she apologised to the court for that.

The court accepted that Ms Virdi had no part in what had happened and considered that the Hamid referral and the written judgment was sufficient resolution of the matter and there was no need for a referral to the Solicitors Regulation Authority.

Conclusion

This is a good reminder of what the court expects with these cases, which in addition to an apology is a full and frank explanation of what went wrong, what action has been taken in relation to what happened (i.e. internal disciplinary proceedings), and what has been done to prevent it happening again in future.

Relevant articles chosen for you
Sonia Lenegan

Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.

Comments

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.