R Gopinath Sathivel v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 26 April 2018 |
| Neutral Citation | [2018] EWHC 913 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/1607/2017, JR/9023/2017 and CO/6422/2016 |
| Date | 26 April 2018 |
[2018] EWHC 913 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Lady Justice Sharp and Mr Justice Green)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
Mr Justice Green
Case Nos: CO/1607/2017, JR/9023/2017 and CO/6422/2016
Mr R Parkin (instructed by David Wyld Solicitors) for the Claimant
Mr M Rana (instructed by Sabz Solicitors) for the Claimant
Mr S Ogbonna and Ms J Obodoefuna (instructed by Topstone Solicitors) for the Claimant
Hearing date: 13th March 2018
Judgment Approved
A. Introduction
This is the judgment of the court.
There are before the court three cases referred because of concerns that the legal professionals acting in these proceedings have in their professional behaviour fallen far short of the standards required of those conducting proceedings on behalf of clients. The Court has an inherent jurisdiction to govern its own procedure and this includes ensuring that lawyers conduct themselves according to proper standards of behaviour: See R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin) (“ Hamid”). When a Judge concludes that a lawyer has acted improperly that may be recorded in a court order. The papers are then referred to the High Court Judge having responsibility for this jurisdiction. A “Show Cause” letter may then be sent to the lawyers concerned who are invited to respond addressing the matters of concern raised in the Show Cause letter. If the Judge in charge considers the response to be inadequate the case may be referred to the Divisional Court. In the event that the Court finds that the conduct in question falls below proper standards the Court can admonish a practitioner. Alternatively, the Court can refer the file to the relevant regulatory authority, usually the Solicitors Regulation Authority (“SRA”), for further investigation and if appropriate the imposition of sanctions. The Court is aware that in relation to previous references to the SRA solicitors have been struck off the roll.
In the three cases before this court the conduct of the professionals involved amounts, in our view, to a serious and persistent failure to adhere to proper standards. We have decided that in each case it is proper to refer the file to the SRA.
B. The problem facing the courts and tribunals in the field of immigration and asylum
The conduct of practitioners in the field of immigration and asylum poses a particular problem for the courts and tribunals. It is for this reasons that the Courts have been forced to exercise their inherent jurisdiction to govern proceedings before them to hold to account the behaviour of lawyers whose conduct of litigation falls below the minimum professional and ethical standards which must be demanded of all lawyers appearing before the Courts. The Hamid jurisdiction applies to all those dealing with clients in proceedings. The overwhelming majority of problem cases seen by the High Court, however, concern solicitors.
In Hamid in 2012 the President of the Queen's Bench Division, later to be Lord Chief Justice, expressed the hope and expectation that with that judgment the problem of professional misconduct amongst immigration and asylum practitioners would come to an end. It has not. It remains in 2018 an issue of deep concern.
In 2018 the present Lord Chief Justice has expressed concern at the lack of the exercise of the duty of candour on the part of practitioners in the context of last moment applications for injunctions to restrain removals. He also reiterated the importance of the Hamid jurisdiction. See paragraph [20] below.
There are of course many highly professional practitioners in this complex and difficult field who successfully reconcile the need to act in their client's interests with their duties to the Court. However, there is also a substantial cohort of lawyers who consider that litigation is a tactic or strategy that can be used to delay and deter removal proceedings.
We describe below some of the situations that too frequently confront the courts and tribunals.
First, most of the practitioners in this area do not have legal aid franchises. The clients are privately funded, and they are frequently vulnerable and desperate. We sought information as to the level of fees demanded by the solicitors in the cases before us. The sums vary; but they invariably run into multiples of thousands of pounds. To raise funds to pay for legal assistance clients must often seek support from family and friends. The solicitors will not generally act unless they are placed in funds beforehand. Some lawyers promise the highest quality of representation and we have no doubt that there are solicitors and other representatives who do provide excellent services. But there are other solicitors who having promised high quality specialist services then instruct paralegals and unqualified persons to draft what would ordinarily be viewed as complex and specialised pleadings and court documents (often prepared by counsel). The cases that are then advanced may be wholly lacking in merit. Judges are presented with lengthy pleadings much of which is irrelevant and has been cut and paste from template documents, often available on the internet.
Second, the incentive of some practitioners in initiating court or tribunal proceedings is simply to delay the immigration process. They do this by exhausting every judicial or tribunal opportunity, irrespective of the merits of the case. Buying time is valuable. Even a hopeless application or appeal takes time to determine and whilst that is ongoing there is the possibility of lodging repeat “ fresh material” applications to the Home Office with a view to generating new Home Office decisions (rejecting the contention that there is fresh material relevant to the applicants case) which then generates even more (unmeritorious) appeals which take up even more time to resolve and allowing (yet again) yet more fresh material applications, and so on. It is commonplace for such cases to continue for many years, and in extreme cases decades. And the longer the case goes on the more scope there is for an applicant to begin to develop an Article 8 “ private life” claim, for example by getting married (sometimes through a sham process) or having (or claiming to have) children. Where an applicant is detained pending removal the longer that detention persists (which may be a consequence of the applications and appeals being pursued on the individual's behalf) the greater the scope for the detained person to then argue on well-known “ Hardial Singh” grounds that it is no longer lawful to maintain detention. If a bail application succeeds the applicant might abscond. Sometimes the applicant re-appears years later, and the process then starts again.
Third, when the Home Office sets a date and arrangements for removal a different dynamic sets in. Last minute applications to restrain removal are made to the High Court, and often to the “out of hours” duty Judge literally hours or even minutes before the removal flight departs the runway. Frequently the day before, or even the day of, removal lawyers serve a new “ fresh material” claim upon the Home Office and then argue before the duty Judge that removal is unlawful pending determination by the Home Office of that new application and/or an appeal therefrom. It is of the nature of these cases that the applicant may have been engaged in a Home Office and/or appeal process for some years. There is often a lengthy history. However, what happens is that at the last moment the applicant changes solicitors. The new solicitors draft the last-minute application seeking the restraining of removal and they explain to the Judge that they have been instructed late on and that they have had no time to obtain instructions (the client will be in detention). Frequently, the new lawyers do not have access to the prior documentation and they have not (because of lack of time they argue) sought or obtained the documentation from previous solicitors or the Operational Support and Certification Unit (“OSCU”) of the Home Office. For this reason, arguments advanced to the Judge are based on details provided by the client who being in detention can give only the barest of instructions over the phone. Judges complain that all too often the version of events provided to them is materially inaccurate and/or incomplete. It is almost unheard of for the Defendant to be notified of the application or to have a chance to advance submissions, even in writing.
All of the above scenarios are reflected in various ways in the facts of the cases before us. In the midst of all of this it is crucial that the courts and tribunals retain the integrity of their processes. It is unacceptable that they should be used as part of a continuing game played between applicants and the Home Office. If the processes of the Court and tribunals are abused in this manner then those individuals who do, genuinely, have proper cases to advance (and there are many) find that they sit in a long queue waiting to be heard. The judges who should be devoting their time to resolving genuine and important disputes are distracted dealing with abusive cases. Justice is delayed and can be denied.
This is the broader context to the Hamid jurisdiction and to the cases which are before the Court.
C. The importance of adherence to proper standards
The importance of demanding adherence to proper standards is,...
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