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
		20 April 2015

1. SIR BRIAN LEVESON P: It is not surprising that those who seek asylum or to regulate their immigration status in order to remain in this country will take whatever steps are open to them in order to do so. To that extent, they are vulnerable and those who practise in this area of the law must always be acutely conscious of the need for a thorough understanding of the law, fully appreciating that pursuing litigation without arguable grounds is potentially unprofessional. This Court has demonstrated its intention to take a proactive approach to such cases in order to enforce standards and to ensure that the time of the Court (not to say public and private funding of such litigation) is not wasted. That much is clear from the principles set out in the earlier decisions of this Court in Hamid [2012] EWCA 3070 (Admin) and Butt [2014] EWHC 264 (Admin). Similar statements of principle and concern have been made in the context of appeals and jurisdiction conducted before the Upper Tribunal (Immigration and Asylum Chamber) ("UTIAC"): see Okundu and Abdussalam v Secretary of State for the Home Department [2014] UKUT 377 (IAC).
2. This point, it seems, must be repeated. There is a pressing need for legal representatives acting for claimants in judicial review proceedings to do so in a professional manner both towards their clients but also towards the Court, bearing in mind that the paramount duty of all legal representatives acting in proceedings before courts is to the Court itself. The need for this warning to be taken seriously increases as the resources available to the Courts to act efficiently and fairly decreases. If the time of the Court and its resources are absorbed dealing with utterly hopeless and/or unprofessionally prepared cases, then other cases, that are properly advanced and properly prepared, risk not having devoted to them the resources that they deserve.
3. It is in those circumstances, pursuant to its inherent jurisdiction, that the Court comes to consider the behaviour of Rashid and Rashid Solicitors, initially of 21-23 Tooting High Street, London but now of 190 Merton High Street, South Wimbledon, London and their conduct of an application for permission to apply for judicial review on behalf of the applicants, Adil Akram and Amir Akram. As I shall explain, 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.

The Facts

4. 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. It is not necessary to refer to the substantive grounds; permission was refused.
5. It is worth quoting the terms in which Jay J refused permission:

"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.

In those circumstances, I direct that within 14 days of your receipt of this Order, you must write to the ACO explaining yourselves, in line with the principles set out in Hamid [2012] EWHC 3070 (Admin) and Butt [2014] EWHC 264 (Admin). If you do not understand what is required, having read those cases, you are advised to seek advice from experienced Counsel. Your letter must be addressed for the attention of Dilys Tausz.

You must not ignore this direction. The ACO will be monitoring the position.

To the extent necessary, I certify this claim as being totally without merit.

The costs of preparing the Acknowledgment of Service are to be paid by the claimants to the Treasury Solicitor, acting for the SSHD, in the sum of £320 unless within 14 days the claimants notify the court and the Treasury Solicitor, in writing, that they object to paying costs, or as to the amount to be paid, in either case giving reasons. If they do so, the Treasury Solicitor has a further 14 days to respond to both the court and the claimants, and the claimants the right to reply within a further 7 days, after which the claim for costs is to put before a judge to be determined on the papers."

6. On 18 December 2014 the Administrative Court Office ("ACO") communicated that order to Rashid and Rashid Solicitors.
7. It is apparent that the order found its way to the two Akram brothers, because on 21 January 2015 they sent to Jay J a letter which can only be described as disquieting. At the time they were in detention awaiting deportation. The letter is somewhat difficult to read, but a transcription of it appears to be in the following terms:

"In the name of Honourable Mr Justice Jay

I received your decision about our JR application 18/12/2014 and point out mismanagement about our solicitor Rashid and Rashid. Honourable Sir I respect your decision.

Mr Justice Jay I was completely unknown about the law of UK and my friends advise us about Rashid and Rashid law firm and he guide us as he say we followers.

Sir we paid nearly 5000 pound for fight our case and [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 [prodge] 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.

Thanks

Date 21.01.15"

8. It is apparent from this that the assertion of the Akram brothers was that they had paid nearly £5,000 and been promised the services of experienced counsel to fight their cause, whereas in practice they received the services of a trainee (if that) who produced a document that, as we have already observed, Jay J concluded was, in his words, "a shambles".
9. At all events, and in non-compliance with the order of Jay J, Rashid and Rashid did not provide any response or explanation.
10. On 26 January 2015 a further letter was sent to the solicitors from the ACO pointing out that the failure on the part of the solicitors to respond was in breach of the prior order and directing that an explanation be provided by 4 pm on 2 February 2015 so that it could be determined whether the firm should be required to appear before the Divisional Court to show cause why further disciplinary steps should not be taken.
11. In response to this, on 30 January 2015, a document entitled "A Statement and Apology" was sent on behalf of the solicitors. It explained that Rashid Ahmad Khan, of Rashid and Rashid Solicitors, was the principal and sole practitioner of the firm. He started the office in April 2010 and was regulated by the Solicitors Regulation Authority. He explained that on 19 December 2014 the order of Jay J was received, but that it was inadvertently filed under the wrong reference name and was not brought to his attention until 23 January 2015. It is then stated that as soon as he was made aware of the order, he liaised with his colleague, Mr Khokhar, who had conduct of the case. It is stated that Mr Khokhar is employed as a "caseworker" at Rashid and Rashid Solicitors. Nowhere, in that letter at least, is it explained what in actual fact the relevant qualifications (if any) of Mr Khokhar are.
12. Paragraphs 6-9 of the statement are important in that they explain how the grounds which led to the order rejecting permission came to be drafted and finalised. In particular they explained when it was that Mr Khan says that he first came to see the grounds as lodged:

"6. Rashid and Rashid solicitors were instructed by Mr Adil Akram and Mr Amir Akram, in relation to their immigration matters, on 28.02.2012. After representing them at the First tier Tribunal and Upper Tribunal we were instructed on the 24.07.2014 to prepare and submit an application for Judicial Review challenging the Refusal of Permission To Appeal by the Upper Tribunal dated: 21.07.2014. The Judicial Review application was prepared on 28.07.2014 by Mr Khokhar.

7. I did not have sight of the Grounds and was at IAC Hatton Cross in the appeal hearing of a client Mr Sayar Gul (Appeal No: IA/03671/2014). The Notice of Hearing attached as evidence.

8. It is with extreme regret that Mr Khokhar did not address in the Grounds the relevant Civil Procedure Rules and the second appeals test. He should have. It is also extremely regrettable that he sought to also challenge the decisions that related to the Fresh Claims when he was not permitted to do so under Civil Procedure Rules.

9. Initially, the Judicial Review application was sent to the Administrative Court Office using Form N461. It was hand delivered by the junior clerk, Mr Fazal Mehmood on 28/07/2014. Mr Mehmood was informed by the Administrative Court office that the application should actually have been submitted to the Upper Tribunal. Accordingly he brought the application back to the office explaining what had happened to Mr Khokhar. As a result Mr Khokhar prepared the Application using form T480 and again passed the application to Mr Mehmood to be submitted to the Upper Tribunal the following day. At no time was I made aware of this by either Mr Mahmood or Mr Khokhar as I was in the courts on both occasions the 28 and 29.07.2014."

13. At paragraph 10 of the statement Mr Rashid Khan sets out the steps that he proposes to take to avoid repetition. It is worth setting these out in full:

"a. Arrange in-house Training on immigration law and judicial review for all of my staff dealing with immigration matters. The training will be conducted by Counsel outside of Rashid and Rashid Solicitors.

b. Update the office library with the latest editions of the leading immigration practice texts, including the forthcoming 9th edition of McDonald's Immigration Law and Practice, and the most recent edition of Immigration manual and updated HJT Manual.

c. Closer scrutiny of all incoming and outgoing post and mail.

d. All Judicial Review Grounds to be prepared with the advise of Counsel.

e. Participation of immigration case workers in the upcoming event by ILPA, titled DT 1609 Judicial Review following the Immigration Act 2014, to be held on 19/03/2015.

f. The Accreditation of case workers by CLT or OISC or other recognised, approved bodies.

g. Perform fortnightly File Review instead of monthly basis.

h. To update the Court in 6 weeks with what steps were taken."

Finally, in the statement of Mr Rashid Khan, he reiterated his sincere apology to the Court.

14. This statement did not address a number of concerns and, as a result, by letter dated 2 March 2015 the ACO indicated that the response to the order was not satisfactory and that it was necessary for Mr Rashid Khan and the caseworker to attend before the Divisional Court to show cause why they should not be dealt with in accordance with the principles set out in Hamid (ibid) and Butt (ibid). Further, to ensure that Rashid and Rashid were aware of the Court's concern arising out of the letter sent by the Akram brothers, a copy of that letter and the transcription of it was sent to the firm prior to the hearing, together with an indication that it would be raised as an issue at the hearing.

The Issues

15. A review of the original statement reveals two matters of signal concern. First, Rashid Khan explained in his statement that he did not see the grounds and he attributes blame fully to his caseworker. On the face of it, however, this is inconsistent with the fact, as can be seen from the grounds themselves, that Rashid Khan purported to sign the statement of truth in his personal capacity as principal. Thus, on the record, he is personally representing and attesting that the facts stated in the claim form are true; this would require him to be aware of the grounds before they were sent.
16. In a more recent statement, dated 15 April, Rashid Khan explains that the case owner was Muhammad Naeem Khokhar, described as a "caseworker, immigration", to whom he had delegated the preparation of the grounds and the JR bundle because he was in Court on the two days on which he sought to lodge the grounds. He asserts:

"Mr Khokhar signed the T480 form on my behalf as I was not in the office. I had given him the authority to do so. At this time, I was also in touch with the clients who were in immigration detention by telephone.

Unfortunately, I did not follow my normal practice on this occasion of checking and signing the JT grounds and bundle before it goes out ... In hindsight I recognise that it was an error on my part to not have instructed counsel from the outset, particularly in a second appeals test judicial review.

I recognise that the grounds were badly drafted and failed to identify the relevant principles, including the decision in Cart. There was a combination of factors that led to the grounds going out as they did. They include the pressure my case owner was under from the client, the fact that I was in court on the two days in question ... and finally, that although I asked my case owner, Mr Khokhar to check the merits of the argument grounds with a barrister, he could not reach that barrister and then submitted the grounds regardless."

17. Mr Khokhar, on the other hand, says that he misunderstood the instructions that Mr Rashid Khan had given him. He thought that he had been asked to prepare the grounds for judicial review and the bundle so that he had authority to draft the grounds himself. His statement goes on: "This was not the case and I am truly sorry that I misunderstood the instructions and that the quality of the grounds I drafted were so poor". He says that he could not get in touch with the client, but this apparently refers to the period following the acknowledgement of service, Mr Rashid Khan having spoken of the pressure that his case owner was under from the client.
18. Mr Rashid Khan recognises the failures identified by Jay J. He accepts that there was no basis advanced for the proposition that the decision of the First-tier Tribunal was legally flawed, that the grounds did not confine themselves to the Upper Tribunal's refusal of permission and failed to deal with Cart. He also accepted that the claim was totally without merit.
19. Mr Khokhar holds a diploma in computer and legal studies and has completed a legal secretary diploma from Ilex. Precisely how far that involves him in the law and practice of immigration is unknown. Suffice to say it seems clear that his only immigration and asylum training has come from his principal, Mr Rashid Khan, and, perhaps, his previous employers. In addition to believing that he had been given authority to draft the application for judicial review and that he had "misunderstood" the position, he also explained, as I have recounted, that he had been unable to contact his clients after the acknowledgement of service had been received. He now recognises that all applications and bundles must be checked and signed off either by Mr Rashid Khan or by a barrister following a merits assessment.
20. From this material, it is clear that, at the time, there was a systemic failure on the part of Mr Rashid Khan and his firm, in that he permitted or gave the impression that junior members of staff were able to use his name and allow documents to be served on the Court and the Defendant which purported to be with his authority and knowledge, but which had not been checked as legally justifiable.
21. The second area of concern in view of the letter from the Akram brothers relates to the question whether the firm was acting in a professionally appropriate manner towards its clients. If the firm extracted a fee of around £5,000 (said by Mr Rashid Khan now to have been £4,500) upon the promise that the client would be represented by experienced counsel, then it was clearly a breach of duty to entrust the case to an inexperienced case worker without the case having been analysed and the subject of advice from experienced counsel. Mr Rashid Khan did not deal with this complaint in his recent statement, but we are told by Mr Andreas Pretzell, who has appeared on his behalf this morning, that the fee represented the entirety of the costs expended from 28 February 2012 to 29 July 2014, when judicial review proceedings were commenced. The judicial review was itself launched without the payment of further fee. That may be difficult to square with the fact that the Tribunal give as one of its reasons for proceedings being dismissed the failure to pay the fee but Mr Pretzell explains that at the relevant time the Akram brothers had not paid £750 towards these costs and had undertaken to pay the fee directly.
22. In that regard it is worth noting that Mr Rashid Khan speaks of having conduct of 72 immigration appeals and 45 claims for judicial review in relation to immigration matters in which the client either pays money on account or makes payment on an agreed date. Although it must be recognised that the statements of the Akram brothers have not been tested (or indeed the subject of written response), there is no doubt (and Mr Rashid Khan concedes) that a service which promises expert attention from counsel was not, at least in this case, delivered. That is a matter which we are told is presently being investigated by the Solicitors Regulation Authority on the basis the letter addressed to Jay J was also copied to the SRA and they are undertaking their own enquiries.
23. Where does that leave this case in connection with the Hamid jurisdiction? It is the first occasion upon which this firm of solicitors have appeared before this Court for failures of the type identified in Hamid and Butt. Usually, such cases are adequately met by appropriate assurances, which have been given to the Court and repeated in various statements and in Mr Pretzell's skeleton argument today. The two additional concerns, however, raise different issues.
24. The first is the statement of truth. In Kadyamarunga [2014] EWHC 301 (Admin), the Administrative Court stated at paragraph 29 the following about the importance of statements of truth in immigration cases:

"29 ... The purpose behind a Statement of Truth is that the party certifies the accuracy and truth of the matters advanced and is thereby less likely to advance speculative, fanciful or false statements. If the party is cross-examined upon the evidence veracity can become an issue by virtue of the Statement of Truth."

25. The statement of truth is not an irrelevant mantra or mere verbiage. This Court has now on a number of occasions reiterated the substantial importance attached to qualified lawyers being in a position diligently and carefully to scrutinise applications made to the Court. In Awuku (No 2) & Others (10th December 2012), the then President of the Queen's Bench Division, Sir John Thomas, stated:

"It is not sufficient for an application to be made by a caseworker without scrutiny by a qualified lawyer."

26. That observation was made in the context of an application to the Court on an ex parte basis. However, in our view, it applies equally to all applications to the High Court. If, in a given case, an application is drafted by a trainee or caseworker, then it is of high importance that it should be overseen by an experienced lawyer and that a statement of truth in the name of that experienced lawyer should accurately reflect the fact that the lawyer in question takes ownership and responsibility of the facts and matters set out in the application.
27. We should, therefore, make it clear that we view the failures of Mr Rashid Khan and Mr Khokhar relating to the statement of truth to be serious. The SRA is, as I have identified, presently investigating this matter having received the letter addressed to Jay J, and we would do nothing to discourage them from doing so.
28. The second issue concerns the complaint made by Mr Rashid Khan's clients. We have noted the explanation given to us, both in writing and in the course of argument. We are not, of course, able to go beyond it.
29. Prima facie the relationship between a solicitor and client is governed by contract and not something with which the Court will ordinarily intervene. However, in circumstances such as have arisen in this case, there is clear concern (I say no more than "concern" on the basis that this court is not in a position to make a finding of fact) that legal representatives may be incentivised to use and abuse the processes of the Court for personal gain. As such, in principle, even relations between solicitor and client can be such as to fall within the legitimate concern of the Court in the exercise of its inherent jurisdiction to govern conduct before it.
30. Persons seeking to avoid being removed from the jurisdiction in the position of the Akram brothers are frequently extremely vulnerable. They are subject to the rigours of the immigration system. They may well be in detention facing imminent removal. If not in detention, they may be destitute and unable to work. They are likely to be desperate. They are thereby 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. When (or if) they discover they have been misled, it may be too late and they may well have long departed these shores, often through coercive removal. In the present case, the removal date of the Akram brothers was in March of this year. It may be a statement of the obvious, but they would not, in such circumstances, be around to challenge the solicitors or seek repayment of fees or make their own complaints to the SRA, although in this case, because of the analysis of the case provided by Jay J, they have done so.
31. We do not consider ourselves to be in a position fully to explore the ins and outs of the relationship between Mr Rashid Khan and his clients, although we recognise that Mr Rashid Khan has accepted that the service which his clients received did not include the experienced counsel they were promised. Again, the SRA are now in a position to conduct the enquiry that they have commenced, and that, I repeat, appears to be what they are doing.
32. We have taken into account the apologies proffered by Mr Rashid Khan. We have taken into account the remedial steps which are being put into place. However, this does not, in our view, obviate the need for such full and proper investigation by the SRA as the SRA determine, particularly in relation to the two features to which we have referred. We should add for the avoidance of doubt that the remedial steps identified by Mr Khan should be implemented quite regardless of the fact that the SRA are involved in an investigation of aspects of this case. We assert that it is a matter in which the SRA would itself be interested in any event.
33. In the circumstances, having noted that the SRA are considering the case, we direct that a transcript of this judgment and the documents on the Court file should be passed to them.
34. Thank you very much.
ADDENDUM (In the absence of solicitors and counsel)
35. SIR BRIAN LEVESON P: For the avoidance of all doubt:
36. MR JUSTICE GREEN: I agree.
37. A MEMBER OF THE PRESS: My Lord, before you rise. I have asked for access to documents to enable me to prepare a report of this case. I have been refused by the parties, so my only other remedy is through yourself. That is the reference to the skeleton arguments and witness statements put before the Court.
38. MR JUSTICE GREEN: You are entitled to skeleton arguments.
39. A MEMBER OF THE PRESS: I know. I told counsel that, but it went nowhere. This is a continuing problem.
40. SIR BRIAN LEVESON P: You are entitled to the skeleton argument.
41. A MEMBER OF THE PRESS: And documents which have been referred to in open court.
42. MR JUSTICE GREEN: Which includes the statements.
43. A MEMBER OF THE PRESS: I asked counsel, and he referred to his clients and they just refused to comply.
44. MR JUSTICE GREEN: Is it just skeletons and statements?
45. A MEMBER OF THE PRESS: Yes, my Lord.
46. MR JUSTICE GREEN: And the order of Jay J.
47. A MEMBER OF THE PRESS: Yes, that would be very helpful.
48. MR JUSTICE GREEN: That will be set out in the judgment, as will the letter which the Akram brothers wrote will also be fully set out in the judgment.
49. A MEMBER OF THE PRESS: Yes, that is exactly what I need.
50. MR JUSTICE GREEN: But if they are in the judgment, which will be out in the next day or so -- or do you want them before that?
51. A MEMBER OF THE PRESS: Yes, my Lord, I have to do it today, if at all possible. If it is helpful, any documents I can photocopy and return in the next ten minutes.
52. SIR BRIAN LEVESON P: Why am I not surprised?
RULING
53. SIR BRIAN LEVESON P: An issue has arisen in relation to sight of the documents to which reference was made both in Court and in the judgment which I have just given. There is no doubt that the skeleton argument is a document properly available to the press, and given the extensive citation from the statements provided by Mr Rashid Khan and Mr Khokhar (which are incorporated in the judgment), I have no doubt that these are properly disclosable to the press. I would so order.
54. In addition, a copy of the order of Jay J, again extensively set out in the judgment, and the letter from the Akram brothers, cited I believe in full, should also be made available.
55. A MEMBER OF THE PRESS: Thank you, my Lord.
56. MR JUSTICE GREEN: I agree.