Upper Tribunal (Immigration and asylum chamber), 2019-03-04, [2019] UKUT 124 (IAC) (R (on the application of Hoxha and Others) v Secretary of State for the Home Department (representatives: professional duties))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Lindsley |
| Status | Reported |
| Date | 04 March 2019 |
| Published date | 11 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | representatives: professional duties |
| Hearing Date | 30 January 2019 |
| Appeal Number | [2019] UKUT 124 (IAC) |
IN THE UPPER TRIBUNAL
R (on the application of Hoxha and Others) v Secretary of State for the Home Department (representatives: professional duties) [2019] UKUT 00124 (IAC)
Field House
London
30th January 2019
The QUEEN
(ON The application OF)
ROBERT HOXHA & others
Applicants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
MR JUSTICE LANE, PRESIDENT OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE LINDSLEY
Mr J Gajjar, instructed by Mr Salman Zafar of Zafar Law Chambers
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OISC organisations are only able to carry out judicial review case management with counsel authorised to conduct litigation if the organisations are both level 3 registered and have special authorisation to do this work.
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It is a commonplace of working in the difficult area of immigration and asylum judicial review, that practitioners are faced with clients who are distressed at the prospect of being removed from the United Kingdom. This does not absolve such a professional from the need to stand firm and act only as authorised by the statutory scheme.
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Where a medical expert report is relied upon by a legal representative, the representative has a duty to check the report for accuracy, including ensuring the report accurately reflects the way in which the information in it came to be obtained.
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Failure to carry out properly professional duties as set out above, inter alia, may result in the Upper Tribunal referring the legal representative / organisation to the relevant regulatory body.
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FINDINGS OF THE UPPER TRIBUNAL EXERCISING ITS HAMID JURISDICTION
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Introduction
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The Upper Tribunal has an inherent jurisdiction to govern its own procedure and part of that jurisdiction mandates that we ensure that the lawyers interacting with the Upper Tribunal conduct themselves according to proper professional standards. The Upper Tribunal cannot afford to have its limited resources absorbed by abusive applications by those who repeatedly bring meritless applications. Further, substantial time spent on meritless and abusive applications also risks a loss of public confidence in the processes of the Upper Tribunal, particularly if it involves the unjust enrichment of a small subsection of unscrupulous individuals preying on the vulnerability of applicants who find themselves in difficult immigration situations.
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We guide ourselves with reference to the decision in R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), and the subsequent decisions of R (Sathivel) & Ors v Secretary of State for the Home Department [2018] EWHC 913 (Admin) and Vay Sui Ip v Solicitors Regulation Authority [2018] EWHC 957 (Admin). The purpose of the present hearing is to decide whether it would be appropriate to refer Mr Salman Shaheen Zafar, director and owner of Zafar Law Chambers, to the Office of the Immigration Services Commissioner (OISC). What we say about the cases with which Mr Zafar of Zafar Law Chambers has involvement and our conclusions on his conduct is not binding on the OISC, but we hope may assist their further exploration of this matter, should we conclude that it is appropriate to make a referral.
The Present Proceedings
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On 7th November 2018 the Upper Tribunal wrote to Mr Zafar of Zafar Law Chambers regarding the issue of his having seemingly acted beyond his OISC registration in 32 judicial reviews, the majority of which had a standard “42 page” set of irrelevant grounds and consequently were refused and certified to be totally without merit. An additional issue was also raised in the letter about the possible involvement of Zafar Law Chambers with a chartered psychologist, Dr Saima Latif, in producing arguably misleading psychological reports which were submitted to the Secretary of State and relied upon in judicial review proceedings.
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Mr Zafar was required to produce a statement of truth addressing these issues within 14 days. He requested an extension of this time period, and on 13th December 2018 submitted lengthy representations with enclosures. On 20th December 2018 Mr Zafar was informed by letter that there would be a Hamid hearing on 30th January 2019 to examine the issues raised in our letter further, and asking that he obtain the supporting statements from his clients that he said he could produce in his representations of 13th December 2018. This was followed up by notice of hearing sent on 9th January 2019, and a direction sent on 11th January 2019 regarding filing of any further supporting statements or evidence by 23rd January 2019.
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On 24th January 2019 Mr Zafar provided a substantial bundle of documents for the hearing which included documents pertaining to Mr Rikinkumar Ashokbhai Patel and Mr Muhammad Adnan Asghar who both appeared as witnesses at the hearing. In addition, prior to the hearing the Upper Tribunal made available two further bundles of communications received by us from Zafar Law Chambers in connection with judicial reviews, many of which were duplicates or related to the cases to which Mr Zafar’s attention had been drawn in the original Upper Tribunal correspondence.
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Mr Zafar was ably represented by Mr Gajjar at the hearing. It was agreed that there were three issues which needed discussion: firstly, the psychological reports of Dr Latif and any role that Zafar Law Chambers played in placing apparently misleading evidence before the Secretary of State and the Upper Tribunal; secondly, whether Zafar Law Chambers were responsible for the production of the copious standard “42 page” grounds judicial reviews; and thirdly, whether Zafar Law Chambers had acted outside of the scope of their level 3 OISC registration by conducting judicial review work. We examined these issues in turn, with reference to the documentation placed before the Upper Tribunal by Mr Zafar, and with the assistance of evidence from Mr Zafar himself and from the two witnesses, Mr Patel and Mr Asghar, in relation to the second issue, and by way of questions from the bench and submissions from Mr Gajjar on all three matters.
Discussion
Issue 1 - Psychological reports of Dr Saima Latif
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In judicial review JR/4231/18, an application relating to an applicant whom we have anonymised as PSP, there appeared in the bundle of documents a May 2018 psychological report produced by Dr Latif. The application was lodged on 18th June 2018. The grounds in this application for judicial review were generic, irrelevant and made no reference to anything personal to PSP, and the application was refused and certified as totally without merit. Zafar Law Chambers do not accept that they were involved with the making of this application, although they do accept that they represented PSP from May 2018, obtained the psychological report from Dr Latif and succeeded in getting PSP released on bail on 27th June 2018.
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From the decision under challenge it was clear that the Secretary of State contended that the psychological report of May 2018 could not have any weight attached to it as the detention centre records showed that Dr Latif had not gone to the detention centre to interview PSP for the purpose of preparing the report on the day the report contended she had attended, and that instead it appeared that a member of staff of Zafar Law Chambers had obtained the information on which the report was based. There was accordingly concern that Zafar Law Chambers were implicated in the obtaining of this highly problematic expert evidence to obtain the release of the applicant from detention, and in presenting that evidence in a judicial review without providing any further explanation to the Upper Tribunal in the context of the Secretary of State’s concerns.
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The response of Mr Zafar to these contentions can be summarised as follows. He accepts that Zafar Law Chambers instructed Dr Latif in up to 20 detained cases, including that of PSP, where the procedure to produce the reports was that there was an initial face to face client screening which was conducted by a personal visit in detention to the detainee by Mr Sammad S Zafar (who is the brother of Mr Zafar), who was acting as an assistant to Dr Latif at that time and who has no medical or legal training. Mr Sammad S Zafar was at the time not an employee of Zafar Law Chambers, although he later became so. Mr Zafar’s understanding is that Mr Sammad S Zafar was never in fact paid by Dr Latif, as he had not billed her for any of his time, up to the point when the probative value of the reports was called into question. At that point Mr Zafar and Mr Sammad S Zafar decided that it would not now be appropriate for the latter to bill Dr Latif.
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Mr Zafar says the initial face to face client screening in detention by Mr Sammad S Zafar was followed up with a telephone consultation with the detainee by Dr Latif, who then wrote the psychological report. These 20 or so reports had all been obtained prior to 7th June 2018, when the issue of their transparency and probative value was raised by the Secretary of State with Zafar Law Chambers. At this point the procedure was abandoned and only reports obtained by a face to face interview with a medical expert were used. Furthermore,...
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