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  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: