Upper Tribunal Gives Judicial Review Warning

Okondu & Anor, R (on the application of) v Secretary of State for the Home Department (wasted costs; SRA referrals; Hamid) IJR [2014] UKUT 377 (IAC) (20 August 2014)

With more than a thousand claims being filed very month, the Upper Tribunal (Green J and UTJ Gill) has given an all out warning to law firms regarding immigration judicial reviews. In light of the UT’s recent jurisdictional acquisition of the bulk of immigration judicial review cases, Green J considered it good timing to “lay down some markers” in order to control – “act in a manner which is commensurate with their duty towards the Tribunal” – the bad behaviour of law firms. The judges are clearly very angry about the poor quality of work that is being submitted in judicial review cases. They are equally concerned about the low level of disclosure. However, despite the shoddy standard of papers that the judges have had sight of, they did not feel that a weak claim should be a reason for someone not to approach a court for a remedy. In the instant proceedings, two Nigerian nationals, otherwise unconnected to each other, Abdussalam and Okondu, were represented by their respective lawyers who did really poorly in making their clients’ cases and they have therefore been named and shamed in this decision so that others take care to avoid a similar fate.

Abdussalam relied on his health to remain in the UK. He had a weak case and was accused by the Home Office of “remaining here to access free medical care” which he could obtain in Nigeria where he had lived for thirty years. The pre-action assertions of his representatives that he would kill himself if removed did not match the expert’s views (who found the risk of suicide to be “low”). The Home Office found this grossly misleading and Abdussalam later wanted to withdraw his claim but the UT did not allow this to happen because it needed to set things straight for future applications as the solicitors’ firm in question had no less that ten cases where they had raised article 3 and article 8 ECHR in the context of adverse mental health.

Green J and UTJ Gill were extremely unimpressed with the “grossly misleading” generic grounds used in all these cases and in the circumstances the UT decided to refer the firm to the Solicitors Regulation Authority because it was not a case where there had been any form of full and frank disclosure to the Tribunal. Accordingly, the UT concluded that it would have failed in its duty had it not referred the firm. Points made in mitigation regarding a “failure of supervision” in a one-off case were roundly rejected and the UT explained that it could not rule out “an endemic problem running throughout the firm.”

Exercising its discretion under section 29(4) of the Tribunals, Courts and Enforcement Act 2007, the UT ordered Abdussalam’s legal representatives (who did not resist) to pay wasted costs incurred by Home Office, summarily assessed at £1,492 inclusive of VAT, because “the application was flawed from start to finish”.

Okondu had a criminal history. He overstayed his visit visa and was caught using a false British driving licence and was sentenced to six months’ imprisonment at Woolwich Crown Court. He was subsequently arrested for criminal and immigration matters involving a sham marriage to a French national who had admitted all offences. Consequently, the Nottingham Crown Court convicted and sentenced him to sixteen months’ imprisonment for seeking to obtain leave to enter the United Kingdom on an illegal basis. The sentencing judge was emphatic that Okondu was involved in “overt dishonesty”.

Against this history, the Home Office considered Okondu’s case under article 8 ECHR taking into account not only his criminal history but also his family position and concluded that he was not in a genuine and subsisting relationship or, otherwise, did not meet the conditions for being granted leave.  It was also considered that there were no exceptional circumstances granting leave outside of the Immigration Rules.

Describing the application seeking permission to apply for judicial review prepared by Okondu’s solicitors as “an extraordinary document … almost on any sensible reading” the UT was flabbergasted to learn that section 6 of the claim form detailing the remedy sought stated:

1. Order that I must be removed from the UK.

2. Order that the decision of the Defendant is disproportionate and thereby unlawful.

3. Order that the decision not to grant me a right of appeal is not in accordance with the law and thereby unlawful.

4. Order that right of appeal be granted to me.

5. Order that the costs be paid by the Defendant.

A frustrated UT explained that the statement of facts and grounds of application was only ten short paragraphs stretching just over a single side of A4 and was based on abstract grounds headed “Illegality”, “Irrationality”, “Procedural Impropriety” and “Other Grounds” which did not lock into any particulars, evidence or case law; failed to relate the claim to the applicant or his personal circumstances, deliberately omitted Okondu’s criminality and failed to refer to the decision under challenge (which was not supplied with the application and instead only the removal directions were provided). Yet a solicitor had signed the claim form!

The UT explained that a firm is under “a continuing duty” once proceedings have been issued and although it accepted the abject apology from Okondu’s solicitors and did not refer them to the SRA as their mistake was a one-off, the judges made it very clear that the fact that no reference was made in Okondu’s solicitors’ case did not mean that in the future others would not be referred to the SRA and/or Legal Aid Agency upon committing a first offence of this nature. Okondu’s representatives were ordered (and they did not resist) by the UT to pay the wasted costs incurred by Home Office; the UT summarily assessed these at £932, inclusive of VAT.

This is definitely good news for representatives who do things properly and ensure that their papers are in order (which is a great way to please judges; they totally love it). If not for the judges, at the very least, representatives can make things easier for themselves by presenting things clearly. Accuracy in making a claim, of course, can quite easily be compromised by being involved in multiple cases. So the moral of the story is not to be greedy and to serve justice instead.

In issuing its general warning, the UT also lamented that Sir John Thomas’s words of caution and concern in R (Hamid) v SSHD [2012] EWHC 3070 (Admin) have not been heeded by the legal profession and on the whole the UT was very clear, and it is indeed hard to disagree, that:

(1) Section 29 of the Tribunals, Courts and Enforcement Act 2007 confers on the Upper Tribunal a discretionary power to order a legal or other representative to pay “wasted costs” incurred by the other party. “Wasted costs” are defined in section 29(5) as costs incurred by a party: “(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or (b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.” The words: “improper, unreasonable or negligent act or omission” are explained in Ridehalgh v Horsefield [1994] EWCA Civ 40. Rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is also relevant. It provides (inter alia) that the Upper Tribunal may not make an order in respect of costs except in judicial review proceedings, under section 29(4) of the TCEA and “if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings”.  The wasted costs jurisdiction applies to all parties. It can arise in the case of a winning party whose conduct, on the way to success, has fallen below the requisite standard and caused wasted costs to be incurred by the losing party.

(2) The overriding duty of all representatives is to the court or the Tribunal.  It is improper for any practitioner to advance arguments which they know to be false or which they know, or should know, are inconsistent with their own evidence, including medical or other expert evidence.  It is also incumbent upon practitioners to ensure that the Tribunal is provided with a fair and comprehensive account of all relevant facts, whether those facts are in favour or against the legal representative’s client.  It will also not be acceptable to say that as of the date of the service of the application the representative was not in possession of all relevant facts because of time constraints.  Time pressures might mean that applications that are less than perfect or comprehensive or complete might in actual fact reflect the very best that can be done in urgent circumstances.  However, this does not excuse a failure, following service of the application, to complete the fact finding and verification exercise, and then seek to amend the application accordingly so as to ensure that the Tribunal is fully informed of the relevant facts and matters.

(3) The attention of representatives is drawn to the judgment of the High Court (Divisional Court) in R (on the application of Hamid) v SSHD [2012] EWHC 3070 (Admin), the importance of which is underscored. Given the assumption by the Upper Tribunal of much of the jurisdiction of the High Court for dealing with judicial reviews in the field of immigration, the Tribunal will, as it has in this case, adopt a similar procedure in those circumstances where it considers it appropriate to do so.

(4) The Upper Tribunal recognises that applicants with weak cases are entitled to seek to advance their case and have it adjudicated upon; that is a fundamental aspect of having a right of access to a court.  But there is a wealth of difference between the advancing of a case that is held to be unarguable in a fair, professional and proper manner and the advancing of unarguable cases in a professionally improper manner.

Comment

images-238But surely this is only one side of the coin. The Home Office also has atrocious papers. Perhaps their decisions are not as nonsensical as Okondu’s application but at times some immigration decisions can easily be as misleading as Abdussalam’s pre-action letter.

Moreover, as is well-known, by virtue of R (Kumar & Anor) v SSHD (acknowledgement of service; Tribunal arrangements) (IJR) [2014] UKUT 104 the UT has created special rules for the Home Office and has allowed the government to depart from its pledge to Hickinbottom J in R (Singh & Ors) v SSHD [2013] EWHC 2873 (Admin) that it will comply with the procedural rules for judicial review applications by the end of 2013; see Delays by Home Office in judicial review cases.

In approaching things in this manner, the UT is acting in concert with the Home Office and together they are creating yet another backlog of cases. In reality, even those applicants whose judicial review claims have reasonable prospects of success, and whose representatives have made full and frank disclosure, are unfortunately left guessing what the future beholds.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
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