England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		30 October 2012

1. THE PRESIDENT: This is the judgment of the court. On 13 January 2011, the claimant entered the United Kingdom from Bangladesh as a student with clearance until 30 April 2014. On 30 March 2012, the leave was curtailed to expire on 29 May 2012. The claimant was found to be working in a restaurant in Bournemouth. On Saturday 20 October 2012, he was notified that he was an overstayer and held in detention. The following day he was served with removal directions for a flight on Thursday 25 October 2012 at 9.15 am. He then consulted immigration advisors and representations were made to the Secretary of State. Those representations were rejected and the removal affirmed. On Wednesday 24 October 2012, further representations were made by a firm of solicitors. They were considered on behalf of the Secretary of State and rejected. At 4.00 pm that afternoon an application was made by the solicitors to the Administrative Court claiming that the court should defer the removal.
2. This court, because of a very substantial number of such claims, has now revised its form N463. First the form requires in section 1 that the reasons for urgency be stated. Secondly, it requires in section 2 the appellant to state the timetable in which the matter should be heard. Third, it requires the justification for immediate consideration to be given. In particular it requires the date and time when it was first appreciated that an immediate application might be necessary and, if there have been any delays, the reasons are to be stated. Also the form requires any efforts that have been made to put the defendant and any interested party on notice to be set out.
3. The form was revised because the Administrative Court faces an ever increasing large volume of applications in respect of pending removals said to require immediate consideration. Many are filed towards the end of the working day, often on the day of the flight or the evening before a morning flight. In many of these applications the person concerned has known for some time, at least a matter of days, of his removal. Many of these cases are totally without merit. The court infers that in many cases applications are left to the last moment in the hope that it will result in a deferral of the removal.
4. The Court of Appeal in R (Madan) v Secretary of State for the Home Department [2007] 1 WLR 2891 set out in the judgment given by Buxton LJ a number of principles that must be taken into account by legal advisers on attempts to obtain judicial review of removal decisions: see paragraph 17 and in particular the following sub-paragraphs:

"i) CPR PD 54.18 makes provision for the hearing of judicial review applications in the Administrative Court against removal from the jurisdiction. Such applications must be made promptly on the intimation of a deportation decision, and not await the actual fixing of removal arrangements.

ii) The detailed statement required by PD 18.2(c) must include a statement of all previous applications made in respect of the applicant's immigration status, and indicate how the present state of the case differs from previous applications.

iii) Counsel or solicitors attending ex parte before the judge in the Administrative Court are under professional obligations (a) to draw the judge's attention to any matter adverse to their clients' case, including in particular any previous adverse decisions; and (b) to take a full note of the judge's judgment or reasons, which should then be submitted to the judge for approval.

...

viii) Counsel will remember that where the application is made ex parte there is a particular obligation to draw the court's attention to relevant authority, including in particular Country Guidance cases."

As Buxton LJ pointed out at paragraph 8, there are circumstances in which professional misconduct can arise if an application is made with the view to postponing the implementation of a previous decision where there are no proper grounds for so doing.

5. In this particular case (where we do not name the solicitor), no reasons for urgency were given, no information was given of the time at which it was appreciated the matter required immediate consideration and nothing was set out as to whether the defendant had been notified. The judge who considered this application refused it as totally without merit.
6. The court has required the attendance of the solicitor today. It has received an apology on his behalf. Neither he nor the caseworker appreciated that this information is now required. It is for that reason that on this occasion we do not name either the employee or the firm.
7. However, we will for the future do the following. If any firm fails to provide the information required on the form and in particular explain the reasons for urgency, the time at which the need for immediate consideration was first appreciated and the efforts made to notify the defendant, the court will require the attendance in open court of the solicitor from the firm who was responsible, together with his senior partner. It will list not only the name of the case but the firm concerned. Non-compliance cannot be allowed to continue.
8. That will not be the only consequence of failing to complete the requirements set out in this form. First, one consequence may be that, if the form is not completed, the judge may simply refuse to consider the application. Second, if reasons are not properly set out or do not explain why there has been delay or the reasons are otherwise inadequate, the court may simply refuse to consider the application for that reason and that reason alone.
9. These remarks apply equally to the form soon to be introduced for out of hours applications and the form for renewals when an application has been refused on the papers.
10. 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.
11. 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 anyone to the Solicitors Regulation Authority, but we will not hesitate to do so where there is a failure to comply with the court's requirements.