Leveson anger over lawyer’s asylum case ‘shambles’

Senior UK judge Sir Brian Leveson has strongly criticised a solicitors firm for the “systematic failure” surrounding an asylum application on behalf of two Pakistanis. The handling of a judicial review application by solicitors Rashid and Rashid, of Merton High Street, South Wimbledon, London, was put under investigation by the Solicitors Regulation Authority.

Leveson, President of the Queen’s Bench Division said: “What has happened in these cases follows what has become an all too familiar and depressing pattern in which the legal representatives demonstrate a remarkable lack of knowledge and/or regard for the substantive and procedural rules governing claims for judicial review.”

He spoke of the danger of lawyers abusing the court processes for personal gain and questioned whether Rashid and Rashid had acted “in a professionally appropriate manner towards its clients”. The suggestion was that the firm extracted a fee of around £5,000 with a promise that the clients would have experienced counsel, yet the case seems instead to have been entrusted to an inexperienced case worker. That would be a clear breach of duty, said Leveson. 

Mr Justice Jay, who received the application in the High Court, had said: “These proceedings are a complete shambles. You have not begun to understand the basic procedures which apply.”

Rashid Khan, the sole principal at the firm, has admitted the grounds set out in a judicial review application in the case of Adil and Amir Akram by the case worker, who holds a legal secretary diploma, “were badly drafted and failed to identify the relevant principles”. 

Leveson said Khan had allowed documents to be served “which purported to be with his authority and knowledge, but which had not been checked as legally justifiable”.

Khan submitted an apologetic letter to the court with a list of steps he proposed to take to avoid repetition including ensuring all judicial review grounds be prepared with the advice of Counsel. Such a letter is in line with the required response to such cases under Hamid [2012] and Butt [2014] – which Jay had told Khan to read before submitting his letter. Leveson, however, considered there was a problem with the statement of truth regarding the judicial review application – that it had been signed off by him, in effect that he “takes ownership and responsibility of the facts and matters et out in the application”. Failures relating to the statement of truth were serious, said Leveson.

Secondly there was concern “that legal representatives may be incentivised to use and abuse the processes of the Court for personal gain”. Asylum seekers were often extremely vulnerable, often in detention and facing imminent removal. “They are therefore at risk of being easy prey to those who would extract fees upon the promise of experienced counsel being instructed to fight the case vigorously.” If they find they have been misled, it may be too late since they may have already been deported and not able to seek repayment or take legal action against their solicitors. The apology and remedial steps did not obviate the need for the SRA inquiry. (Details of the case: R (Akram and another) v SSHD)

Comment
There is increasing concern among judges about the failings of solicitors in immigration cases, to the extent that a special procedure has been put in place – the so-called Hamid court or hearing – of which Akram is the latest example. But this time it is serious.

Hitherto lawyers have been made to come to court to apologise and tell the court what processes they have put in place to remedy deficiencies. Even in quite serious cases such as R (Siddique), in which Eden Solicitors had previously appeared before a Hamid hearing, and R (Patel), an allegedly abusive application “based upon the dishonesty of an employee [of Malik & Malik] who felt pressured to make the application and to deceive the senior partner into signing the appropriate cheque to pay the court fee”, the firms were spared reference to the Solicitors Regulation Authority. These two cases were among four dealt in the Butt hearing – and there have been more.(See Awaku and B and Another)

In Butt Leveson said: “These courts are not assembled because of our wish to embarrass or otherwise impugn solicitors whose work is conscientious, thorough and in accordance with the highest keepings of the profession. We are, however, determined to ensure that the overly frequent abusive applications in this field of law cease and we will take whatever steps are necessary to do so.”

The Hamid courts are controversial. There are fears that media reports based on the hearings play to prejudices about unjustified asylum claims or the lawyers who pursue such claims. This is clearly not Leveson’s agenda. His concern is that too easily an asylum seeker or other person threatened with deportation may pay money with no way of knowing it has been well spent – and no way of bringing a solicitors firm to book once he or she has been ejected from the country.

The cost to the public purse is also an issue – adding a twist to the politically charged nature of the Hamid hearings. Leveson said, again in Butt:

“In these days of austerity, the court simply cannot afford to spend unnecessary time on processing abusive applications; still less is it a proper use of the time of out-of-hours and overnight judges, hard pressed at the very best of times, to deal with such applications. All those who practise in this field ought to be warned, because the most serious failings will not necessarily lead to this stepped approach but may lead directly to reference to the Solicitors Regulation Authority.”

Whether, as part of a “stepped approach”, having a judge of Leveson’s standing (particularly after the Leveson inquiry into press regulation) tear a strip off you in open court is preferable to facing the rather more discreet rigour of the SRA is a moot point. There is also an issue that the Hamid hearing is not quite a fact-finding forum – a point made carefully in Akram by Leveson who was circumspect in limiting his words to broad “concerns”  and speculations about the sort of things that might happen at a poor practice. This did not prevent him saying some provocative things – and could give cause for concern that he might as a result inadvertently be influencing the SRA inquiry

Those lawyers who object to the Hamid hearings also argue that they do no good and that the numbers of immigration judicial review applications have not fallen as a result. But that would require quite a sophisticated statistical study to prove or disprove. The best one can say, perhaps, is that the jury is still out on Hamid courts.

Twitter: alrich0660

A sceptical view of the Hamid courts is presented here by LT & P Solicitors. 

In contrast the Bar Council (in a response to the Grayling “reforms” of judicial review, rather favours Hamid hearings: “In our view, Hamid hearings are preferable to new costs rules. They target those whom the judges regard as being at fault and we hold the strong view that judges are in the best position to know. While targeting errant lawyers, they do not have any generalised, chilling effect on lawyers striving to serve their clients’ interests, or on access to justice.” Proposals for further reform – The Bar Council (pdf)

Akram is considered here by Colin Yeo on the Freemovement blog

Facts of the case Akram and Another v Secretary of State for the Home Department
Amir and Adil Akram are two brothers born in Pakistan. Both entered the United Kingdom on student visas in or about 2010 and 2011. Various applications were made upon their behalf for visas, all of which were refused. Applications to the First Tier Tribunal and to UTIAC ensued, all of which failed, essentially for procedural defaults, at least one of which based upon non-payment of the requisite fees. Thereafter, applications for asylum were made which were also refused. Appeals from these refusals were dismissed. At the end of the line, an application to the High Court for permission to apply for judicial review was made, and it came before Jay J on paper … permission was refused.

Letter to Jay from the Akram brothers (extract) January 2015
“Sir we paid nearly 5000 pound for fight our case and [he said] I will hire best barrister for our case because this case is very difficult but when apply JR in your court he gave our case [to a person with] the name Khokhour its just a training person and [unknown] us he get ready our JR and send in your Court now Mr Justice Jay I have just request we loose our case due to this solicitor who was not qualified and experience. Please take self notice about him because it can happen with many others one again and in future he can play with other persons. I and my brother going back 3rd Feb we [don’t] know we will be alive or die because our case is very difficult. Please safe other persons who can effect in [text unreadable] due to Rashid and Rashid.”

Terms of Jay J’s refusal
“These proceedings are a complete shambles. You have not begun to understand the basic rules and procedures which apply. First, your asylum and human rights claims have been adjudicated upon within the appellate system. The only decision which is capable of challenge (putting to one side your so-called ‘fresh claim’ letter) is that given by UTJ Goldstein on 21/7/14 refusing you permission to appeal against the decision of the FTT.

That decision may only be challenged in JR proceedings brought before this Court on Cart principles. However, you have conspicuously failed to raise any matters which are fit for a second appeal. In my judgment, there are not any.

The procedural route you have pursued is misconceived. You tried to issue in the Upper Tribunal, but you ought to know that the UT has no jurisdiction. The matter was transferred to this Court. Your JR grounds are not limited to the decision given on 23/7/14, whereas CPR Part 54.7A(2)(b) makes plain that you must not include other matters. You must confine the claim to the UT’s refusal of PTA decision. Your grounds also fail to mention Cart. Secondly, it follows from the above that your ‘fresh claim’ arguments simply cannot be run in these proceedings.

However, there is another fundamental obstacle to that aspect of your case, which it is convenient to address here. Your letter dated 23/7/14 was considered by the SSHD on 6/8/14 and 7/8/14. You have made no challenge to those decision letters. They contain no arguable legal errors, you would now be out of time to challenge them, and in view of my findings it would be an abuse of process for you to do so now. I am not satisfied that you have demonstrated competence to handle these difficult cases.”

• An examination of the Supreme Court’s Cart principles by Edward Craven is on the UKSC Blog   

Note
Sir John Thomas (then President of the Queen’s Bench Division)  in Hamid: “These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. 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.

Thanks to Bailii.org as ever for cases