R Deepa Adhikari Shrestha & Others v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,Lindsley |
| Judgment Date | 11 June 2018 |
| Neutral Citation | [2018] UKUT 242 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 11 June 2018 |
[2018] UKUT 242 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Lindsley
Mr Syed Wasif Ali, of Harrow Solicitors
R (on the application of Shrestha and others) v Secretary of State for the Home Department ( Hamid jurisdiction: nature and purposes)
(1) The “Hamid” jurisdiction of the High Court and the Upper Tribunal exists to ensure that lawyers conduct themselves according to proper standards of behaviour. The bringing of hopeless applications for judicial review wastes judicial time and risks delaying the prompt examination of other cases, which may have merit. In many cases, the only tangible result of such an application is that the applicant incurs significant expense.
(2) Solicitors who practise in the difficult and demanding area of immigration law and who are properly discharging their professional responsibilities can only safely enjoy the recognition they deserve if the public is confident appropriate steps are being taken to deal with the minority who are failing in their professional responsibilities.
This is the judgment of the Tribunal, to which we have both contributed.
The Upper Tribunal, like the High Court, has inherent jurisdiction to govern its own procedure. Part of that jurisdiction includes ensuring that lawyers conduct themselves according to proper standards of behaviour: R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin). In ( R (on the application of Butt) v Secretary of State for the Home Department [2014] EWHC 264 (Admin), a subsequent case concerning the Hamid jurisdiction, Sir Brian Leveson, President of the Queen's Bench Division, pointed out that “in these days of austerity, the court simply cannot afford to spend unnecessary time on processing abusive applications …” (paragraph 4).
A solicitor who engages in a systematic course of conduct involving the bringing of judicial review applications that are totally without merit is not complying with his or her duty to uphold proper administration of justice; to act with integrity; and to behave in a way that maintains public trust in the profession. The bringing of hopeless applications wastes judicial time, which is at a premium, and risks delaying the prompt examination of other cases, which may have merit. The fact that a person with no entitlement to remain in the United Kingdom may, in practice, be able to remain in the country a little longer, as a result of bringing a meritless application, serves to reinforce the view that the procedure is being abused. In any event, it is doubtful whether such an applicant will gain a material advantage by making the application. In many cases, the only tangible result is that the applicant (or the applicant's friends or family) incurs significant professional fees, as well as the fees payable to the Tribunal. In such cases, the only real beneficiary is the solicitor.
In Vay Sui Ip v Solicitors Regulation Authority [2018] EWHC 957 (Admin) Irwin LJ said:-
“180. The Courts well understand the vulnerability of many of those at risk of removal or deportation from the country. They can be desperate to remain. They are often prepared to grasp at straws. The Courts are also fully alive to the technicality and difficulty of immigration law, and of the Immigration Rules. These factors add to the difficulty of representing such clients. However, they also add to the responsibility of solicitors engaged for such clients.
181. It is critical that solicitors, and others, representing such clients, are scrupulous in observing professional standards. The cost of not doing so to the system is obvious and has been emphasised many times. Spurious, or merely hopeless, applications to courts and tribunals add greatly to the burden on the system of justice, and to the costs of government. However, it should not be forgotten that such applications also cost the applicants, both financially and in engendering prolonged and unjustified expectations. In addition, poor, and where it arises unscrupulous, representation must, to some degree at least, overshadow careful and expert immigration lawyers. The Solicitors Disciplinary Tribunal is entirely justified in taking very seriously cases such as this.”
The exercise of the Hamid jurisdiction has an additional purpose. Solicitors who practise in the difficult and demanding area of immigration law and who are properly discharging their professional responsibilities can only safely enjoy the recognition they deserve if the public is confident that appropriate steps are being taken to deal with the minority who are failing in their professional responsibilities. In short, the reputations of the former must not be tainted by the activities of the latter.
On 26 March 2018, the Upper Tribunal wrote to Harrow Solicitors to say the Tribunal's records showed that out of 36 applications for judicial review brought by the firm since January 2017, eleven have been found to be totally without merit; a further nine had not been admitted; and one was subject to severe criticism at the oral renewal hearing.
The details of the 21 cases were set out briefly in the Tribunal's letter:-
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“1. JR/1842/2017: not admitted and certified as totally without merit; in the decision it is said that the claim was an abuse of process.
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2. JR/2179/2017: refused and certified as totally without merit; in the decision it is said that letter challenged was not a decision of the respondent.
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3. JR/2183/2017: not admitted and certified as totally without merit; in the decision it is said that the application is said to be lodged out of time because the client instructed Harrow Solicitors after the due date but in fact the decision was served on yourselves.
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4. JR/2252/2017: refused and certified as totally without merit.
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5. JR/2879/2017: refused and certified as totally without merit; in the decision it is said that the further submissions were a repeat of previous submissions and the application was hopeless and bound to fail.
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6. JR/3648/2017: refused and certified as totally without merit; in the decision it is also said that the challenge is out of time.
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7. JR/4490/2017: not admitted and certified as totally without merit.
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8. JR/4497/2017: not admitted and certified as totally without merit.
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9. JR/5442/2017: refused and certified as totally without merit; in the decision it is said that the claim is presented in a wholly incoherent way and that it is not even clear what decision the applicant seeks to challenge.
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10. JR/6566/2017: not admitted and certified as totally without merit; it is said in the decision that the letter challenged was not a decision of the respondent and the claim was presented in a totally unparticularised fashion.
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11. JR/337/2018: refused and certified as totally without merit; it is said in the decision that the grounds are poorly drafted.
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12. JR/3236/2017: not admitted; it is said in the decision that the challenge is hopelessly out of time and explanation was wholly inadequate and lacking in merit, and further that the case was devoid of any discernible merit.
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13. JR/3239/2017: not admitted; it is said in the decision there was serious and substantial delay and there was no application to extend time.
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14. JR/3685/2017: not admitted; it is said in the decision there was a significant delay and no particularisation of the reasons for this and that the action was not brought against a substantive decision of the respondent.
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15. JR/4492/2017 (decision on the papers): not admitted; it is said in the decision that the grounds do not properly indentify the decision challenged and there was no application to extend time; in the decision on oral renewal it is said the matter was wholly without substance.
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16. JR/5009/2017 (decision on the papers) not admitted; it is said in the decision that there was no challenge to a decision of the respondent and no reason given to extend time, and that the grounds are formulaic.
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17. JR/5180/2017 (decision on the papers) not admitted; it is said in the decision that there was no explanation of the delay and that the challenge was hopeless. At the first oral renewal hearing it was found that the grounds were poorly pleaded...
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