Mansur (immigration adviser's failings: Article 8) Bangladesh [2018] UKUT 00274 (IAC)
In Mansur (immigration adviser’s failings: Article 8) Bangladesh [2018] UKUT 00274 (IAC) Mr Justice Lane considered the question of the relevance of a previous legal representative’s shortcomings to an immigration appeal.
As Mansur was distinguished from the precedent FP (Iran) & Anor v SSHD [2007] EWCA Civ 13, which established that fairness demands that an applicant or appellant should not be held accountable for the failures of her immigration lawyer in the context of asylum, I take this as the starting point.
Case Law on Poor Immigration Advice
FP (Iran) concerned two appellants who failed to attend their asylum appeals as they had not received notice of the time and place of the hearings. Each appellant’s solicitor had failed to inform the Tribunal of his/her change of address. The representative of one appellant candidly and apologetically admitted the error in a witness statement; the representatives of the other appellant could not be contacted.
The crux of the case was the right to a fair hearing. In FP (Iran) Sedley LJ drew a distinction between the approach in Al-Mehdawi v SSHD [1989] UKHL 6 in which, a foreign student lost his entitlement to an appeal hearing due to his solicitor’s error and, it was found that he could not “complain that he has been a victim of a procedural impropriety or that natural justice has been denied to him” and a case involving asylum seekers, for whom the right to be heard may literally be a matter of life and death.
Sedley LJ asked himself whether in the field of refugee law the errors of representatives are to be imputed to their clients and answered in the negative: “there is no general principle of law which fixes a party with the procedural errors of his or her representative” [46].
FP (Iran) was followed in two further cases in the Court of Appeal. It is noteworthy that in each the appellant sought asylum.
The applicants in BR (Iran) v SSHD and MD (Iran) v SSHD [2007] EWCA Civ 198 applied for an extension of time to file their appellant’s notice, which had not been filed with the Court of Appeal within 14 days due to mistake and delay by their legal advisors. Echoing the ratio of FP (Iran) Buxton LJ held that, “it is no consolation to tell a person that she can sue her solicitor for his mistake if the mistake is about to lead to her removal from this country; and, a fortiori, if the removal is to a condition of persecution” [18].
SL (Vietnam) v SSHD [2010] EWCA Civ 225 similarly followed FP (Iran) and found that the appellant, who was a minor and an asylum seeker at the time that his application for leave to appeal was filed out of time, “should not have been fixed with responsibility for the failure of his lawyers”.
How are mistakes by legal representatives to be weighed?
In Mansur the appellant was not denied a hearing before an independent tribunal. Nor was it a case involving persecution. On this basis it could be distinguished from the above precedents.
In Mansur’s case, contrary to his instructions, his immigration adviser (OISC representative) failed to withdraw his pending application for permission to appeal to the Upper Tribunal on the date requested and in time for Mansur’s Tier 4 (General) student application to be made. This resulted in the invalidity of the student application, as it fell foul of section 3C(4) of the Immigration Act 1971. Mansur was left without leave and his continuous lawful residence of 10 years was broken.
Mansur tried to argue that the misfeasance of his previous representative fell to be weighed in the balance when determining whether his hypothetical removal would violate his Article 8 ECHR rights.
Mr Justice Lane held that the correct question is not whether the adviser’s failure “in some way gives the appellant a stronger form of protected private (or family) life than he would otherwise have. Plainly, it cannot. Rather, one needs to ask whether in the particular circumstances… [the adviser’s] misfeasance affects the weight that would otherwise be given to the importance of maintaining the respondent’s policy of immigration control” [28].
The first half of this approach is surely commonsensical. Simply because one’s legal adviser erred, one’s private and family life ties are not strengthened.
The latter half, however, opens discourse as to what is constituted in the breadth of Article 8(2) public interest that can permit interference with one’s right to respect for private and family life. Further, what can lead to reduction of those public interest factors? While Mr Justice Lane refers to the maintenance of immigration control, that is not in itself a permissible aim under Article 8(2) but it may be assumed to be an aspect of either the ‘prevention of disorder or crime’ or the ‘economic well-being of the country’, or both (Shahzad (Art. 8: legitimate aim) [2014] UKUT 85 IAC).
However, one can now speculate as to what else is possible of reducing the weight to be given to the public interest. Drawing a parallel to the Tier 1 (General) tax discrepancy context, is it possible that a grave error on the part of an accountant (who may equally have a professional regulator, and make an admission of responsibility) could similarly reduce the public interest in an Article 8 balancing exercise?
How often will an adviser’s failures reduce the public interest?
In short, rarely:
“[I]t will be only rarely that an adviser’s failings will constitute such a reason. As a general matter, poor legal advice in the immigration field will have no correlation with the relevant public interest. The weight that would otherwise need to be given to the maintenance of effective immigration controls is not to be reduced just because there happen to be immigration advisers who offer poor advice and other services. Consequently, a person who takes advice to do X when doing Y might have produced a more favourable outcome will normally have to live with the consequences” [30].
That the OISC had clearly and categorically found that Mansur received poor advice was “highly material” in determining whether his case was one of the rarities described above. It will clearly be difficult to belatedly blame or challenge poor immigration advice where there is no admission of guilt and no finding of culpability by the adviser’s professional regulator.
Mansur was successful on the facts of his case. Mansur’s application was deemed invalid solely because his representatives ignored his instructions regarding the timing of the withdrawal of the application for permission to appeal. This, Mr Justice Lane held, was not the same as giving poor immigration advice. Therefore, the mistake of his legal representative was a factor which reduced the weight to be given to the maintenance of immigration control to the point that Mansur’s protected private life outweighed the factors on the public interest side of the balance.
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