Immigration solicitors who lodge last-minute groundless applications to prevent removals will be named and shamed and have their senior partners summoned before the court, the president of the Queen’s Bench Division has warned.
Sir John Thomas said the administrative court faced an ‘ever-increasing large volume’ of such applications, often filed on the day of removal and without adhering to the appropriate procedure.
He described such ‘late meritless’ applications as an ‘intolerable waste of public money’ that put ‘great strain’ on the court’s resources and were an ‘abuse of the services’ of the court. ‘Many of these cases are totally without merit. The court infers that in many cases applications are left to the last minute in the hope that it will result in a deferral of the removal,’ he said.
Thomas warned that the court would take the ‘most vigorous action’ against lawyers who pursue them. He was giving judgment in Hamid v Secretary of State for the Home Department.
The case concerned a Bangladeshi student who had been notified that he was an overstayer and served with removal directions. His solicitors made two applications to postpone removal the day before he was due to be deported after a previous application had already been rejected.
A High Court judge dismissed the application as being ‘totally without merit’, stating that information required by the form N463, including the reasons for urgency, had not been provided.
Thomas warned that in future if any firm failed to complete the form, the court would require the attendance in open court of the solicitor from the firm responsible, together with their senior partner. ‘It will list not only the name of the case but the firm concerned. Non-compliance cannot be allowed to continue,’ he said.
In addition, if the form is not completed and the reasons for urgency not given, he said, the judge may refuse to consider the application.
Thomas warned: ‘The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.’
He added: ‘That is a warning for the future. We hope it will be unnecessary to have to have any further hearings of this kind or to refer to the SRA, but we will not hesitate to do so where there is a failure to comply with the court’s requirements.’
In this case, Thomas did not name the solicitor from whom the court had received an apology, because neither he nor the caseworker appreciated that the information was now required.
The chair of the Law Society’s immigration committee Chris Cole said that solicitors often do not get cases until the last minute as clients initially go to regulated immigration advisers who are not solicitors and therefore cannot take judicial reviews once their representations to the UK Border Agency have been refused. ‘Therefore solicitors have no option but to apply for urgent interim relief,’ he said.
Cole said that in the vast majority of cases it is the delay by the UKBA in making removal decisions, that necessitates urgent applications to out-of-hours judges, as solicitors do will not want to issue proceedings unnecessarily or prematurely. ‘If UKBA could make earlier decisions, then such last-minute applications could be reduced,’ said Coles.
But Cole accepted that ‘small minority’ of immigration solicitors do not pursue cases appropriately and make ‘unjustified and ill-prepared’ last-minute applications without complying with the procedure rules.
Cole said: ‘The views of the president are extremely robust and, although it is rarely excusable to fail to comply with the civil procedure rules, it is my concern that the tone of this judgment will affect the conduct of the conscientious solicitors far more than the few rogue solicitors who probably won’t even read the judgment.
‘It is a real concern that genuine and meritorious cases may not be pursued because of a solicitor’s fear of being named and shamed by administrative court judges,’ he added.
Cole added that it was ‘unlikely’ that unmeritorious applications would be funded by legal aid as there is a strict merits test. ‘Clients will often be desperate not to be removed and thus will pursue any avenue, however expensive and however slim the prospects of success.
‘Solicitors can advise a client about the poor prospects of success, but if instructed to pursue a claim, then in most circumstances a solicitor must act on the client’s instructions,’ he said.
The full judgment can be read here.