Duties to the Court: Ex parte applications and immigration cases

There’s something interesting going on in immigration cases.  Sir John Thomas, President of the Queen’s Bench Division gave this judgment (with Cranston J concurring) about the failure of solicitors to give full disclosure during ex parte applications in a number immigration cases.  As I understand it, the cases relate to urgent requests that deportation be stayed.  Thomas LJ has criticised the bringing of many of these cases in these terms:

The form was revised because the Administrative Court faces an ever increasing large volume of applications in respect of pending removals said to require immediate consideration. Many are filed towards the end of the working day, often on the day of the flight or the evening before a morning flight. In many of these applications the person concerned has known for some time, at least a matter of days, of his removal. Many of these cases are totally without merit. The court infers that in many cases applications are left to the last moment in the hope that it will result in a deferral of the removal. R(on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin

In other words, the inference draw is that applications are brought tactically late and with low merits; the lawyer has prioritised the interest of a client over the public interest in the administration of justice.  Another way of thinking about this is that it is a criticism that the lawyers are taking too adversarial an approach to their cases; doing anything they can do for their clients without due regard to whether they are abusing legal process.

In the Hamid judgment it is said that it is a professional requirement of such applications that “Counsel or solicitors attending ex parte before the judge in the Administrative Court…   obligations (a) to draw the judge’s attention to any matter adverse to their clients’ case, including in particular any previous adverse decisions; and (b) to take a full note of the judge’s judgment or reasons, which should then be submitted to the judge for approval.”

In the more recent case Thomas LJ deals with three solicitors for failure to comply with these obligations.  Somewhat surprisingly, one relates to a renewed application in the same case of Hamid.  Thomas LJ says, “an application was made again to this court on virtually the same points. However the application contained no disclosure whatsoever of the previous application and its failure. There was without any doubt a gross breach of the obligation of disclosure that arises on an ex parte application.”

Interestingly, the Court is seeking to involve the SRA in checking on remedial action but not referring the solicitors (who have apologised to the court) for disciplinary investigation.  In the second case there was a failure to draw, “the court’s attention in the application that, first of all, the evidence of the applicant had been rejected as not credible, secondly, that permission to appeal had not been admitted and thirdly that therefore there was no pending appeal before the Upper Tribunal.”   In the third case, the submission that was made to the judge did not contain anything, “to the effect that the application before the Immigration Judge had failed because N’s evidence was not credible, that the application was being made because there was fresh evidence, and drawing to the judge’s attention in the submission the fact that the Secretary of State had stated that the three documents relied on had been before the Immigration Judge and that the other document was inconsistent and was not verifiable. “

The judge emphasises the difference of ex parte process:

“The court relies upon those in the legal profession for the performance of that obligation in entertaining ex parte (or without notice) applications. It must be appreciated, in particular in this kind of case where on many days this court is faced with a very large number of applications, that it is absolutely essential that there is put on the face of the submission all the points that tell against the grant of relief; that is the absolute duty of the solicitor or counsel.”

He also opines to the effect that failing to disclose relevant detrimental material was a tactic used to disguise the apparently hopeless nature of these cases.  In the light of recent reporting of judicial review outcomes this is an important observation.  Whilst the judge’s action with regard to these solicitors is restrained, it is to be wondered whether the SRA will  be more extensive in their approach than dealing with the one firm referred to them for checking.

If Thomas LJ is right about the underlying problem, which appears to be partly a competence issue (a failure to understand and implement the court’s own requirements) and partly a broader question about understanding the ethical role of a lawyer when dealing with courts, in particular when dealing with ex parte applications, then we might expect more thoroughgoing and sector wide response from the SRA.  After all, a risk has been identified; it is alleged it is widespread; and – on the face of it – it is impacting on immigration cases; may be leaking over into how immigration clients with good cases are being dealt with; and may also be contaminating broader debates about the merits of judicial review.

—-

p.s. the comments are worth a read as is a follow up post:

http://www.freemovement.org.uk/2012/11/21/open-season-on-immigration-lawyers/

 

 

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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6 Responses to Duties to the Court: Ex parte applications and immigration cases

  1. Adam Wagner says:

    The High Court court is clearly on the offensive over the issue of claimant immigration solicitors not doing their job properly. In my view, this is long overdue.

    Anyone who practises in this are will recognise the features – some claimant immigration firms are incredibly shoddy; there really isn’t any other way of putting it. Submissions are copied and pasted at great length from other similar (but not identical and often not actually analogous) cases. Ten bad points are made in the hope of overwhelming the court at JR permission stage (standard 30 minutes listing), achieving a grant of permission (often on the basis that there simply isn’t enough time to satisfy the judge that all of the points are unarguable) and then settlement of the case by the Secretary of State.

    Claimants are badly advised and given false hope that their case has merit – and then are left waiting a year for the inevitable failure of their Judicial Review when they could have been getting on with their lives. Practitioners will know about Rex Cart cases – these are almost by definition unarguable but utterly hopeless cases are consistently being pursued on advice by solicitors. Meanwhile, claimants are left in tears as the judge tells them their case is hopeless, when their solicitor (who they have paid or has received public funding on their behalf) should have advised them properly in the first place.

    It goes on – *new* points are made at 5pm the night before (this happens all the time) with no application to amend. This is often the result of counsel being instructed late who probably advises the solicitor how awful the original submissions were. And I am afraid that not all of the counsel do their jobs properly either – I was involved in a permission hearing a couple of weeks ago where the claimant counsel failed to disclose case law which destroyed all three of their arguments.

    Wasted costs orders are rarely made as the permission process is supposed to be a relatively cost-light forum.

    I entirely accept that there are some brilliant claimant immigration firms out there who do fantastic work for their clients under immense time and financial pressure. Also, the Secretary of State is by no means blameless – sometimes an acknowledgement of service is also a copy and paste job, although from my experience the Treasury Solicitor at least usually get to the nub of the issue and make the right points. The UK Border Agency isn’t always up to scratch in the way it makes decisions, as we all know given the amount of times they are criticised by the courts.

    But there is a real problem here – there seem to be some solicitor firms which are not doing their jobs and are potentially making lots of money from vulnerable claimants – they are trading on false hope and poor service. As the recent judgments show, they are also failing their duty to the court. It is admirable that our Judicial Review system enables many to have a hearing in front of a high court judge even if their case is unarguable, but that system won’t survive if the Judges are constantly faced with poor and overly-adversarial conduct.

  2. legaljobtips says:

    Not really my area, but I enjoyed your post and Adam’s reply. I can’t help thinking that these tactics are a bit like a footballer going down easily in the box, i.e. this action has a good chance of winning the game for his team, if not be picked up the referee. I wouldn’t criticise the player, but would think that the governing body (or courts in your case) should introduce any available means to make the rules more enforceable, and think about more of a deterrent to an infringement. Without a level playing field of enforcement, it could be risky to motivate a solicitor to do anything that is not in the best interests of their client, whether their conduct is close the edge or not.

  3. Adam Wagner says:

    One other point I should make – following on from discussions on Twitter – is that a major issue lurking in the background here is funding for certain kinds of immigration/human rights/deportation cases. As is well known, public funding is disappearing for these kind of cases. This will no doubt have a negative effect on the quality of representation as people are forced to rely on cheap representation or to represent themselves.

    The important question in relation to the cases mentioned above is whether the problems associated with those kinds of cases can be explained entirely / in part / not at all by funding issues. My suspicion is that some but not all can be. There is an issue of professional responsibility and ethics here, which is why Richard has picked up the judgment in the first place.

    The reason that this area is so sensitive and controversial is that the decisions can change the course of a person’s life. But that cuts both ways – as well as imparting a huge responsibility on the Secretary of State (as I have said above, one which not always discharged), there is an a responsibility on lawyers to do a proper job. I would be interested to hear comments by immigration lawyers, and am happy to be told that funding / UKBA issues are a complete explanation, if that is the prevailing wisdom.

  4. Pingback: Open season on immigration lawyers | Free Movement

  5. Colin Yeo says:

    Blog post on the same topic from an immigration barrister perspective here:

    http://www.freemovement.org.uk/2012/11/21/open-season-on-immigration-lawyers/

  6. mkp says:

    Both Adam and Coin are right. Depends which side you’re on. From what I can see, suits for partitions and permanent injunctions in Karachi and Mumbai contain superior English to some of the stuff which can be observed in UK immigration cases/proceedings. In the UKBA, some people are really nice and others are quite nasty. Some legal aid lawyers get students – whose visas are curtailed and who are found working – to claim asylum! Why do that? Surely they should be telling the client not to claim asylum or go home or re/apply under another route. But what if a student in a recently axed school wants to stay on: well they can’t. As they have overstayed. I think that Boris Johnson got things right in India. They need to Relax a bit around here. There is a huge problem in immigration legal services in the UK. Some of the people trading as solicitors are really unreal. Not sure how form N463 helps clients with poor cases?: better to use an N461 form and leave things undecided.

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