A High Court judge has condemned what he called a ‘substantial cohort’ of immigration lawyers who use litigation as a tactic to delay and deter removal proceedings.
Mr Justice Green said three cases brought together before the court amounted to ‘serious and persistent failure’ to adhere to proper standards and he referred all three firms involved to the Solicitors Regulation Authority.
The judge said the conduct of the firms, London-based David Wyld & Co Solicitors and Topstone Solicitors and national firm Sabz Solicitors, was indicative of wider problems facing the courts and tribunals in the immigration and asylum fields.
In Sathivel, R v Secretary of State for the Home Department, Green suggested the incentive of some practitioners in initiating court or tribunal proceedings was simply to delay the immigration process, which they do by exhausting every judicial or tribunal opportunity, irrespective of the merits of the case.
He added: ‘Buying time is valuable. Even a hopeless application or appeal takes time to determine … it is commonplace for such cases to continue for many years and in extreme cases decades.’
The longer the case goes on, he explained, the more scope there was 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.
Last-minute applications are made to the High Court literally minutes before the removal flight leaves the runway, with fresh material submitted late so the Home Office determination can be deemed to be unlawful.
Green continued: ‘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.’
In the case of Sr Lankan Gopinath Sathivel, his firm David Wyld Solicitors was found by the court to have made an application that was totally without merit.
A challenge to detention was ‘no more than a device’ to bypass the Upper Tribunal and appeal against the client’s removal. The judge in these proceedings considered them an abuse of process.
The firm said another firm had prepared previous applications and information was withheld by the client, but the court found it ‘unacceptable’ that a case based upon incomplete and inaccurate instructions was advanced as true.
In the case of Nigerian national Daru Dola Abraham Ajani, Sabz Solicitors was found to have, at the very least, failed to supervise a junior employee whose misleading drafting was then allowed to proceed to mislead the court. One application was said to be ‘extremely weak’ and there was a failure to ensure full documentation was placed before the court.
Finally, Topstone Solicitors, representing a Zimbabwe national who arrived in the UK illegally in 1996, was said to have failed to make enquiries on the history of the case and submitted grounds to the court that were ‘irredeemably bad’.
Green added: ‘No even remotely competent lawyer could ever have countenanced such a document being placed before a court as a proper pleading.’
The judge said the court will set out guidelines for future procedure in immigration appeals, starting by reiterating the duty owed to the court.
In future, a show cause letter must be drafted by a person responsible for the case who knows they will be in contempt of court if there is any attempt to lie or mislead.
The court insisted its views should not be binding upon the SRA. The Gazette has contacted each named firm for comment.
In a statement, David Wyld & Co said: ’It is apparent to us that there are a number of factual clarifications which must come to light to evidence the fact that there was no deliberate abuse of process by David Wyld & Co, and further that there was no attempt by the firm to mislead the court or circumvent due process.
’We acted reasonably based on the information before us at the relevant time, though we accept that our position should have been better presented to the High Court. David Wyld & Co are now seeking legal advice on appealing the decision further.’