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
		28 January 2014

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:

1. In R ex parte Hamid v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), the then President of the Queen's Bench Division Sir John Thomas, now Lord Chief Justice, delivered a judgment of the court in which he made the point at paragraph 10 that 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. He went on to observe that:

"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."

2. In subsequent decisions Awuku (No 2) v Secretary of State for the Home Department [2012] EWHC 3690 (Admin) and B & J v Secretary of State for the Home Department [2012] EWHC 3770 (Admin), Sir John identified the importance of compliance with professional obligations and the need for appropriate scrutiny by qualified lawyers, particularly in relation to applications on an ex parte basis.
3. It should not be thought that the approach which the then President initiated has in any sense fallen into desuetude following his appointment as Chief Justice. In my judgment, it remains equally critical that solicitors who work in this field make applications only when based upon a proper consideration of the evidence, having assembled appropriate proof and taken care to ensure that the time of the court is not being wasted. If a firm is called to show cause in the future, the first occasion may very well be met with an opportunity to address failings. That opportunity will have to be seized and is likely to consist of a requirement for training and a report back to the Administrative Court of steps taken in that regard. Normally a second, and even more so a third, reference to this court is likely to lead to the papers being dispatched to the Solicitors Regulation Authority.
4. 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.
5. With those words, I deal shortly with the applications before the court today. The first, R (Butt) v Secretary of State for the Home Department, concerns M & K Solicitors, who had not previously come to the attention of this court but whose application was considered to be totally without merit and an abuse of process because the relevant decision was taken as long ago as 2010, with the pre-action protocol letter being dated 15 November 2012 and the claim issued 10 May 2013. Dealing with the application for permission, Cranston J said:

"All this simply beggars belief and to suggest that this was an ongoing refusal of the Secretary of State which somehow justifies coming to the court almost three years after the decisions being challenged demonstrates a level of incompetence which the senior partner of the firm can explain to the Divisional Court."

6. It is commonplace that applications for judicial review must be made as soon as possible and no later than three months after the relevant decision. Of course there is liberty in certain circumstances to extend time, but to believe that such an extension could be granted after three years is utterly to fail to recognise the importance of speed and expedition in this court. It has not been suggested that the application was not an abuse of process.
7. In addition, reliance was placed upon an extremely scruffy handwritten letter from a bank. The circumstances do not matter, but it is not surprising either that the Secretary of State or that the court should have been extremely concerned as to the origins of this letter. To say that to produce such a document necessarily reverses the burden of proof equally misunderstands the approach which has to be adopted in this court.
8. The firm has given an undertaking as to its future conduct and as to appropriate steps which it will take to ensure that all those working within it are suitably aware of the importance to which the court attaches to timeous applications properly made and properly evidenced. They, along with other firms dealt with today, must write to the Administrative Court within six weeks explaining the steps they have taken to put that into effect.
9. The second case with which the court has had to deal, R (Kiran) v Secretary of State for the Home Department, is even less explicable than the last. This application initially was for urgent consideration and was sent to the immediates judge with the claimant seeking urgent interim relief. Turner J dealing with it said this:

"This application betrays a complete lack of understanding of the nature of an application for urgent consideration. There is no justifiable basis whatsoever for the request that the court should consider this application within 48 hours. An out of date form N463 has been filled in as a result of which no explanation is proffered as to why such urgency applies to applications relating to a decision reached more than two months ago."

10. Quite apart from the use of the wrong form, the more serious failing in this application was identified when the matter came for consideration on the documents. The judge observed:

"This is not an appealable immigration decision. It informs the individual that they are an illegal entrant and they are liable to detention and removal. It also allows the imposition of reporting restrictions. It is when an immigration decision is made that there will be a right of appeal under Section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002. At that point the claimant will be able to advance her explanation, including that what she said at the screening interview was inaccurately recorded. Thus the challenge to IS 151A is incompetent."

11. Mr Zeeshan Mian, a solicitor advocate and senior partner in the firm, has offered an undertaking to ensure that the firm does not get into a similar unwanted situation in future by providing in-house training to all qualified fee earners, by personally scrutinising the merits of a claim before it is filed and to take these steps additionally to those which have already been taken, such as the appointment of a Head of Immigration Department to review all applications and claims and appointing a part-time in-house counsel.
12. It is sad to see a firm which has not previously come to adverse attention of the court appearing before us in these circumstances. We accept the undertaking that Mr Mian has made. We require him to write to the Administrative Court in six weeks to identify how all these various measures have been put into effect and the impact of the changes that have been made.
13. The third case which we have considered is R (Siddique) v Secretary of State for the Home Department. This case is more serious because the firm, Eden Solicitors, has previously appeared before a Hamid court. Indeed, on 25 November the firm wrote to the Administrative Court enclosing certified copies of training certificates to demonstrate its compliance with its undertaking. Nevertheless, this application for judicial review was received by the Administrative Court on 12 December. In refusing permission, the reasons given were:

"The grounds are essentially of what were advanced before the FTT. Judge Borsada dismissed the case on the grounds that the claimant lacked credibility. This is a case to which CPR 54.7A applies. The Court will give permission to proceed only if it considers that there is an arguable case which has a reasonable prospect of success because both the decisions of the Upper Tribunal and the First-tier Tribunal are wrong in law and that either (i) the claim raises an important point of principle or practice; or (ii) there is some other compelling reason to hear it. No attempt is made to address CPR 54.7. The claim is an abuse of process and should never have been filed."

Counsel instructed on behalf of the solicitors has been the first to recognise the validity of those observations.

14. We have anxiously considered whether the time has now come for that firm to be referred to the Solicitors Regulation Authority. On their behalf, Miss Broadfoot of counsel has offered that the firm will not merely follow up on the training for judicial review generally but will arrange for specific training in immigration law. They are also intending to review the internal checklist and flow chart and ensure that no application is made without having been checked by a senior partner. The particular application was made by a foreign-registered lawyer who is not authorised to commence judicial review proceedings. That itself is a failure which needs to be addressed.
15. For the final time, but specifically for the final time, we will accept this undertaking and require the firm again within six weeks to write to the Administrative Court Office identifying precisely what steps it has taken to ensure that these failings do not recur.
16. The final case before the court is slightly different. In one sense in R (Patel) v Secretary of State for the Home Department, the solicitors, Messrs Malik & Malik, present a particularly serious problem given that they have twice before appeared in Hamid courts. However, the explanation for what is conceded to have been an abusive application in this case is based upon the dishonesty of an employee who felt pressured to make the application and to deceive the senior partner into signing the appropriate cheque to pay the court fee.
17. It is not necessary to enter into the merits of the particular case. The relevant employee has undergone disciplinary proceedings and been dismissed. He himself has signed a statement for the court apologising fully and unreservedly and with the highest degree of shame and embarrassment, not blaming anyone but himself for his actions. The senior partner of the firm of solicitors also expressed his mortification in having to appear before the court in these circumstances. We recognise that the unauthorised actions of a trusted individual are difficult to stop. The firm will have to reflect upon what the senior partner needs to see before signing cheques on the firm's behalf, and will doubtless have learnt a salutary lesson in relation to this particular problem.
18. In the circumstances, although reading the papers before seeing this explanation we were minded to refer this firm to the Solicitors Regulation Authority, we have decided not to take that step but to accept the apology. Again, the firm will write to the Administrative Court Office identifying what steps it has taken to improve its procedures to ensure that this will not happen again. It is almost inconceivable that Malik & Malik will survive a further referral to a Hamid court.
19. We add only this: 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. This judgment will be circulated to all judges and deputy judges sitting on these applications in the Administrative Court.
20. Finally, for my part I regret that many of these applications have only received responses either yesterday or today. In future, we expect that any response to an application to appear before a Hamid court, should there be another one, is filed with the court at least seven days before the hearing.
21. MR JUSTICE CRANSTON: I agree.