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High Court and Court of Appeal criticise conduct of legal representatives

The High Court and Court of Appeal have been very vocal over the past week in their criticism of legal representatives’ preparation of immigration cases.

As I set out in detail in an earlier post, in Parveen v SSHD [2018] EWCA Civ 932, promulgated on 25 April 2018, Underhill LJ in the Court of Appeal was critical of advisers who “devote their energies to setting out extracts from the case-law rather than to demonstrating a compelling case based on the details of the applicant’s particular circumstances”.

Conduct of Public Law Litigation and Judicial Review Proceedings

On 24 April 2018, the Court of Appeal, published its decision in R (On the application of Talpada) v SSHD [2018] EWCA Civ 841, which relates to an application for permission to apply for Judicial Review for a Tier 2 (General) Migrant.

Lady Justice Hallett begins her judgment with the reminder that in “judicial review proceedings it is rarely necessary for there to be live evidence”. Hallett LJ states that if there “if there is a dispute of fact, relevant to the legal issues which arise in a claim for judicial review, the court usually proceeds on written evidence. Since the burden of proof is usually on the person who asserts a fact to be true, if that burden is not discharged, the court will proceed on the basis that the fact has not been proved” [2]. She proceeds to express the exceptionality of hearing live evidence. Underhill LJ caveats this statement by expressing that the Court or Tribunal, “should not be shy about hearing oral evidence where, exceptionally, it is genuinely necessary” referring to R (Patel) v SSHD [2015] EWCA Civ 645 and Ahsan v SSHD [2017] EWCA Civ 2009, both of which involve accusations of dishonest behaviour [54].

The following paragraphs of Lord Justice Singh’s judgment in Talpada exemplify his position on the need for procedural rigour, formality and predictability in the conduct of public law litigation, which is relevant to all judicial review proceedings:

  1. In the context of an appeal such as this it is important that the grounds of appeal should be clearly and succinctly set out. It is also important that only those grounds of appeal for which permission has been granted by this Court are then pursued at an appeal. The Courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of “evolving” during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.
  2. These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation.

Balancing Best Interests of the Client with Overriding Duty to the Court

In R (On the application of Savithiel) v SSHD [2018] EWHC 913 (Admin) published on 26 April, Mr Justice Green and Lady Justice expands on the criticism of professional misconduct amongst immigration lawyers in the context of Hamid: “The conduct of practitioners in the field of immigration and asylum poses a particular problem for the courts and tribunals”.

The Court paints a familiarly bleak picture of the field of immigration law: clients are privately funded, vulnerable and desperate; they pay thousands of pounds for representation; they seek support from their family and friends. However, the court’s cynicism is apparent in its outline of the unethical actions of solicitors who instruct paralegals and unqualified persons to draft specialised pleadings, with the resulting cases advanced lacking merits and the lengthy pleadings containing irrelevant materials that are cut and pasted from template documents. The court states that irrespective of the merits, representatives then seek to delay the immigration process.

The High Court stressed the importance of courts and tribunals retaining the integrity of their process, and not becoming a pawn, in a “continuing game played between applicants and the Home Office”. Many applicants would not know or consider their private and family life to be weak or unmeritorious, or in any way related to a “game”.  Applicants do not wish to be subject to the Home Office’s delay and Tribunal’s float and listing delays, in their attempts to regularise their status or gain further leave to remain. Bear in mind, their future is in limbo and they may be subject to a hostile environment. It is clear that the blame or criticism of the “game”, should be directed at unethical representatives, rather than the applicants.

Concern is rightly placed in ensuring that individuals who have genuine and proper cases are not waiting in long queues to be heard. While justice delayed is often justice denied, it is true that during the delays, applicants may continue to develop their lives in the UK in the interim and this may constitute “fresh material” for an application. However, unless very close to one of the Home Office’s private life thresholds, fresh material resulting from delay is more often a silver lining than an end in itself. Criticism is also more aptly directed at the group of litigants who can afford further application fees and further legal representative’s submissions.

In addition to the commonsensical guidance emanated from the Court, such as, clients do not know the law; therefore, their instructions about legal points, cannot be taken at face value, the Administrative Court did have regard to what is required for a representative to promote the overriding objective. Lawyers are reminded of the appropriate conduct required in immigration cases to avoid undue delay and any misleading of the court by omission or commission [43-48]:

  • Duty to the Court is Paramount: While advocates have a duty to promote and protect the best interests of their client, fearlessly, they owe a paramount duty to the  Court.
  • Duty of Enquiry: Advocates must take all due steps to ensure that they have the fullest  possible information before drafting any application, so they may furnish the Court with the most accurate version of events. There can be no proper basis for arguing that there was no time to speak to the Home Office or OSCU or the previous solicitors. Without having made enquiries, it is “unacceptable for a lawyer to advance a case based upon incomplete and inaccurate instructions and present them to the Court (by commission or omission) as true”.
  • Duty of Candour: In the rare circumstances, where there was no opportunity to conduct inquiries, the lawyer still has a powerful duty of candour to ensure that the Court is made fully aware of the limitation of the evidence that is then placed before the Court. The lawyer will have to set out exactly why no steps have been taken to obtain the full background documents and facts. This may weaken the case, as the Court might not be able to attach great weight to the facts relied upon: “But this is the necessary price that must be paid.”

The Court notes that it is often “highly convenient” for new representatives, whose instructions were switched for strategic reasons, to plead ignorance. However, the Court stated that to condone such an argument, is “tantamount to creating a system where through the convenient device of a late change of instruction, lawyers can mislead the courts with impunity”. The Court noted referrals had been made to the SRA for full investigations, singling out and naming the solicitors who represented in the cases: Topstone Solicitors, Sabz Solicitors and David Wyld & Co Solicitors.

These judgments are a reminder of the importance of seeking adept legal representation capable of rigorous drafting and making the appropriate enquiries expected by the Court in the conduct of immigration matters.

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