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
		16 November 2012

1. THE PRESIDENT: There are before the court today four cases that arise out of the problem to which this court drew attention in its judgment in R(on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin). The court drew attention to the very high duty of disclosure, repeating once again the words of Buxton LJ in R(on the application of Madan) v Secretary of State for the Home Department [2007] 1 WLR 2891, and to the importance of compliance with the procedures of the court and, in particular, the new forms that the court has introduced. The court expressed the hope that practitioners would comply with these obligations and the court would not have to take any further action. The court is disappointed that it has had to do so.
2. We will deal with three of these cases in this judgment. We will deal with the fourth, Awuku, when further inquiries have been made in due course.

Hamid

3. The first case does involve the very same case of Hamid. On this occasion we shall name the solicitor as MQ Hassan. After the rejection of the application referred to in the earlier judgment of the court, an application was made again to this court on virtually the same points. However the application contained no disclosure whatsoever of the previous application and its failure. There was without any doubt a gross breach of the obligation of disclosure that arises on an ex parte application. Mr Hassan has appeared here today and apologised. He said that his firm is in the process of tightening its procedures so this would not happen again.
4. We consider that the appropriate course of action to take in this case is for Mr Hassan to report to the Solicitors Regulation Authority what steps he is taking to ensure that all those who work in his firm are properly trained in particular in the obligation incumbent upon a solicitor to make full and proper disclosure of all material facts to the courts. The court will communicate itself with the Solicitors Regulation Authority to say that it has required that. The Solicitors Regulation Authority can consider whether there is a proper training programme in hand. However, we will add that if this happens again in this firm, we shall refer the matter for consideration by the disciplinary branch of the Solicitors Regulation Authority.
5. Mr Hassan, this is your last chance and you must put your house in order.

Murugesapillai

6. We next consider R(on the application of Murugesapillai) v Secretary of State for the Home Department, in which Miss Kezia Tobin, instructed by S Satha Solicitors, appeared on behalf of the claimant in the renewal application made to this court [2012] EWHC 3219 (Admin).
7. Very briefly, the facts were these. The claimant is a Tamil from Sri Lanka who came on a student visa on 22 September 2010. Leave to enter was curtailed to expire on 9 September 2012 on the basis that he had ceased to study. Six months later he made an asylum claim on the basis that he is a Tamil and involved in the LTTE. It was refused. The appeal against the Secretary of State's refusal was heard by the Tribunal, which dismissed the appeal on 15 August 2012, the judgment being served on 22 August 2012. The principal reason for the decision was that the claimant was not believed.
8. It was not until 20 September 2012 that an application for permission to appeal was made. The time limit is a strict one of 5 days after service of the judgment. The consequence of a failure to serve on time is that, unless the Tribunal admits the appeal, there is no appeal pending. The late application was considered by Immigration Judge Grant on 27 September 2012. He refused to admit it. There appears then to have been an application for permission to appeal to the Upper Tribunal on 11 October 2012. In the form submitted to the Upper Tribunal for permission to appeal, under paragraph D there is the question: "did the First-tier Tribunal refuse to admit your application because it was late?" The box was ticked "no". That was untrue, as the application had been refused.
9. The Secretary of State issued removal directions on 7 November for 13 November 2012. On 8 November 2012, solicitors wrote saying they had lodged grounds of appeal to the Upper Tribunal on 11 October 2012 and they therefore had an outstanding appeal. An urgent judicial review application was lodged ex parte on 9 November 2012, drafted by counsel (not Miss Tobin) to stay the removal. It stated that the appeal was pending. Nowhere was it drawn to the court's attention in the application that, first of all, the evidence of the applicant had been rejected as not credible, secondly, that permission to appeal had not been admitted and thirdly that therefore there was no pending appeal before the Upper Tribunal.
10. It is clear to us, and is accepted by the solicitors, that there had been the most serious non-disclosure to this court. An apology has been tendered. Furthermore, the new form was not properly filled in and did not make clear to the judge why there were reasons for urgency. As this is the second, and I hope this time the last, occasion upon which this court will have to sit in this way, we will not refer the solicitor concerned to the Solicitors Regulation Authority but we mark the case as one where there has been a grave non-disclosure and a failure to comply with the rules of court.

N

11. The third case in front of us today is R(on the application of N) v Secretary of State for the Home Department. The claimant comes from Uganda. She has been here for some 10 years. She made an asylum claim on the basis of being a lesbian. The asylum claim was considered by the Immigration Judge on 10 September 2012, who rejected it on the basis that it was not credible. Two Immigration Judges refused permission to appeal.
12. New solicitors came on the record and produced to the Secretary of State a document which was said to be a letter from the brother of the claimant's Ugandan girlfriend. The Secretary of State rejected that as constituting new evidence as it contained inconsistencies and was unverifiable. The solicitors then produced three more documents and provided those to the Secretary of State. The Secretary of State found that those had already been considered by the immigration judge. The Secretary of State then issued removal directions for 26 October 2012.
13. Thus far, we do not criticise what happened because although the statement in support of the application for judicial review was not in the form in which it should have been, at least all of the relevant documentation was annexed.
14. However, when an application was made on an ex parte basis for the staying of the removal, there was non-disclosure. It is accepted there was, and an apology has been made. There was nothing in the submission that was made to the judge to the effect that the application before the Immigration Judge had failed because N's evidence was not credible, that the application was being made because there was fresh evidence, and drawing to the judge's attention in the submission the fact that the Secretary of State had stated that the three documents relied on had been before the Immigration Judge and that the other document was inconsistent and was not verifiable. The application should then have dealt with those matters.
15. We make this observation. All of those who have appeared before us today have accepted that there rests upon an advocate or other officer of the court the highest obligations of disclosure when making an application to the court for ex parte (or without notice) relief. The court relies upon those in the legal profession for the performance of that obligation in entertaining ex parte (or without notice) applications. It must be appreciated, in particular in this kind of case where on many days this court is faced with a very large number of applications, that it is absolutely essential that there is put on the face of the submission all the points that tell against the grant of relief; that is the absolute duty of the solicitor or counsel.
16. We surmise that had that been done in these cases, no application would have been made because if, in preparing a document for the court, which showed the true points against the grant of an injunction staying removal, it would have been obvious to the author of that document that the court would not entertain such an application.
17. It is therefore deeply regrettable that in each of these three cases there has been a grave failure to disclose. As again this is a long-standing failure in this kind of work and as there has not been a strict adherence to the requirements of this court and a long-standing principle of the law, we will not on this occasion, although we have named those concerned and accepted their apologies for these very grave failures, take any further action. That will be the last time this court will, unless there are strong mitigating circumstances, fail to refer people to the Solicitors Regulation Authority for a breach of these very high duties to the court.
18. The last case we have put back because we wish further inquiries to be made because that case may involve us explaining again the duties that the solicitor owes to this court when advancing cases. We will say no more at this stage.
19. We are grateful to all of those who have attended and in particular to those representing the Secretary of State.
20. We should add that our attention has been drawn to one further matter. We do not think it is necessary to mention it because it is something in a blog but it will have no influence whatsoever on this court.
21. MR JUSTICE CRANSTON: I agree.