Als je ziet hoe Engelse rechters falende vreemdelingenrecht advocaten aanpakken is Deken Loorbach een zacht ei
"Today there are two cases before this court which we will refer to by
the initials "B" and "J". As will become apparent when we set out the
facts, there were, in essence, two explanations for what had happened in
these cases. The first explanation is that the lawyers concerned were
competent in the area of immigration law, but put forward applications
to the court which, being competent practitioners, they must have
appreciated were applications supported by arguments that were
nonsensical. The other explanation was that those lawyers putting
forward these applications were not competent in the area of the law and
put forward applications in ignorance of the law that showed the
lawyers were incompetent. As a result of the hearing before us, it is
clear that both cases fall within the second category, in that arguments
that were nonsensical were put forward to the court by lawyers who did
not have the degree of competence that is essential to practice in
immigration law.
(....)
It is important in cases involving asylum and immigration, where the court offers a very generous service, both out of hours and in the speed of its decision making, that lawyers put at the forefront of their consideration two things: one, only undertake cases where they have a proper knowledge of the law to be able to put forward competent arguments and, secondly, to bear in mind always the paramount duty to the court which I have just summarised. In these two cases, it seems clear to me, on what has been said, that the duty to the court was overlooked but, more seriously, there was a lack of professional competence. Apologies have been made by counsel and solicitors who acted in the case of B. In the case of J, the solicitor-advocate who made the application, and the partner of the firm which had recently employed him, also put forward an apology to the court. I will not now name any of the solicitors or advocates concerned, but I intend briefly to set out the facts as illustrative of what happened in these cases, which must never happen again, and of the importance in this field of law of the observance of the duties to which I have referred.
(...)
Counsel who put forward this argument, for his name appears upon the document, has apologised for what has happened. No counsel knowing anything about this area of the law could put forward such an argument. It is of course right that a person can put forward a claim which he is asked to do by the client, but it is a plain breach of duty to do so in advancing arguments to the court that are manifestly nonsensical and display an obvious ignorance of the law. As I observed at the outset, there are only two explanations for such conduct conceivable: either it was conduct that was deliberate and therefore in gross breach of duty because the lawyer knew what the law was; or the lawyer exhibited a degree of manifest incompetence. It was the latter in this case.
(....)
In the light of the apologies that have been given, and in the light of the explanations tendered, and since this is the first occasion on which this court has had to deal with reiterating the duties of advocates and lawyers, this court will, if my Lord agrees, not take any action in referring the solicitors firms, the solicitor advocate or counsel to the relevant regulatory authorities. This court wishes to make quite clear for the future that, if arguments or advocations of this kind are put forward, the court will act. This is an area of the law where those who are not competent to practice must not practice, and where those who are competent to practice must practice with their duty to the court at the forefront of their mind.
http://www.bailii.org/ew/cases/EWHC/Admin/2012/3770.html
Zie ook deze: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3690.html
En deze: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3298.html
Lees vooral ook de reactie van een barrister op deze kwestie:
More judicial warnings to immigration lawyers
" (....)
The other of the two reported cases, Awuku (No 2), seems to have been the outcome of a new matter list of potential offending immigration lawyers, collectively hauled down to court to explain themselves before the judges in some sort of Star Chamber. I heard that in one case the barrister’s brief had omitted a page from a document to which, naturally, the barrister made no reference. The barrister was let off the hook. This will be little consolation to someone who loses a day’s work and probably a bucket load of sweat wondering if one’s professional career will be in tatters. Will such a person or their colleagues be reluctant to get involved in injunction applications in future? Is this perhaps part of the point of this exercise? Intimidating lawyers into stopping making these pesky applications?
We immigration lawyers are no doubt annoying. So too, to many in our society, are immigrants. Judges are irked that after stellar careers in profitable and intellectually stimulating areas of law they are reduced to deciding mere immigration cases, sometimes of highly questionable merit, as if they were the lowest rung of the tribunal judiciary. This naming and shaming of lawyers is unprecedented, though.
Representing unpopular minorities has never been easy. Looking through some of the litigation around the Birmingham Six there is no criticism of the lawyers despite findings of abuse of process: see McIlkenny v. Chief Constable [1980] 1 Q.B. 283, infamous for the ‘appalling vista’ quote from Lord Denning as he was by then, and Hunter v Chief Constable [1982] AC 529. Those claims were no doubt considered to be ‘not properly arguable’ but the lawyers weren’t hauled over the coals for making the arguments.
Sir John Thomas has embarked on a very dangerous course. Will SIAC lawyers be next? Criminal defence lawyers for terrorist suspects? If it is true there is a new ‘defaulting immigration lawyer list’ at the Royal Courts of Justice, I for one have a family to feed and may decide to stop being available for out of hours work like injunctions. I’ve done three injunction applications in the last few weeks I can think of, two of which succeeded. If I need to start worrying about being hauled down to court for doing my job then I may well stop."
Hele reactie hier: http://www.freemovement.org.uk/2013/01/11/more-judicial-warnings-to-immigration-lawyers/
Voor de duidelijkheid: In Engeland bereiden sollicitors zaken voor zoals wij hier advocaten hebben en barristers (councel) gaan hem op zitting bepleiten (zoals je vroeger hier procureurs had).
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(....)
It is important in cases involving asylum and immigration, where the court offers a very generous service, both out of hours and in the speed of its decision making, that lawyers put at the forefront of their consideration two things: one, only undertake cases where they have a proper knowledge of the law to be able to put forward competent arguments and, secondly, to bear in mind always the paramount duty to the court which I have just summarised. In these two cases, it seems clear to me, on what has been said, that the duty to the court was overlooked but, more seriously, there was a lack of professional competence. Apologies have been made by counsel and solicitors who acted in the case of B. In the case of J, the solicitor-advocate who made the application, and the partner of the firm which had recently employed him, also put forward an apology to the court. I will not now name any of the solicitors or advocates concerned, but I intend briefly to set out the facts as illustrative of what happened in these cases, which must never happen again, and of the importance in this field of law of the observance of the duties to which I have referred.
(...)
Counsel who put forward this argument, for his name appears upon the document, has apologised for what has happened. No counsel knowing anything about this area of the law could put forward such an argument. It is of course right that a person can put forward a claim which he is asked to do by the client, but it is a plain breach of duty to do so in advancing arguments to the court that are manifestly nonsensical and display an obvious ignorance of the law. As I observed at the outset, there are only two explanations for such conduct conceivable: either it was conduct that was deliberate and therefore in gross breach of duty because the lawyer knew what the law was; or the lawyer exhibited a degree of manifest incompetence. It was the latter in this case.
(....)
In the light of the apologies that have been given, and in the light of the explanations tendered, and since this is the first occasion on which this court has had to deal with reiterating the duties of advocates and lawyers, this court will, if my Lord agrees, not take any action in referring the solicitors firms, the solicitor advocate or counsel to the relevant regulatory authorities. This court wishes to make quite clear for the future that, if arguments or advocations of this kind are put forward, the court will act. This is an area of the law where those who are not competent to practice must not practice, and where those who are competent to practice must practice with their duty to the court at the forefront of their mind.
http://www.bailii.org/ew/cases/EWHC/Admin/2012/3770.html
Zie ook deze: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3690.html
En deze: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3298.html
Lees vooral ook de reactie van een barrister op deze kwestie:
More judicial warnings to immigration lawyers
" (....)
The other of the two reported cases, Awuku (No 2), seems to have been the outcome of a new matter list of potential offending immigration lawyers, collectively hauled down to court to explain themselves before the judges in some sort of Star Chamber. I heard that in one case the barrister’s brief had omitted a page from a document to which, naturally, the barrister made no reference. The barrister was let off the hook. This will be little consolation to someone who loses a day’s work and probably a bucket load of sweat wondering if one’s professional career will be in tatters. Will such a person or their colleagues be reluctant to get involved in injunction applications in future? Is this perhaps part of the point of this exercise? Intimidating lawyers into stopping making these pesky applications?
We immigration lawyers are no doubt annoying. So too, to many in our society, are immigrants. Judges are irked that after stellar careers in profitable and intellectually stimulating areas of law they are reduced to deciding mere immigration cases, sometimes of highly questionable merit, as if they were the lowest rung of the tribunal judiciary. This naming and shaming of lawyers is unprecedented, though.
Representing unpopular minorities has never been easy. Looking through some of the litigation around the Birmingham Six there is no criticism of the lawyers despite findings of abuse of process: see McIlkenny v. Chief Constable [1980] 1 Q.B. 283, infamous for the ‘appalling vista’ quote from Lord Denning as he was by then, and Hunter v Chief Constable [1982] AC 529. Those claims were no doubt considered to be ‘not properly arguable’ but the lawyers weren’t hauled over the coals for making the arguments.
Sir John Thomas has embarked on a very dangerous course. Will SIAC lawyers be next? Criminal defence lawyers for terrorist suspects? If it is true there is a new ‘defaulting immigration lawyer list’ at the Royal Courts of Justice, I for one have a family to feed and may decide to stop being available for out of hours work like injunctions. I’ve done three injunction applications in the last few weeks I can think of, two of which succeeded. If I need to start worrying about being hauled down to court for doing my job then I may well stop."
Hele reactie hier: http://www.freemovement.org.uk/2013/01/11/more-judicial-warnings-to-immigration-lawyers/
Voor de duidelijkheid: In Engeland bereiden sollicitors zaken voor zoals wij hier advocaten hebben en barristers (councel) gaan hem op zitting bepleiten (zoals je vroeger hier procureurs had).
Law blog
Tweet
Reacties
Wie durft deze specifieke problematieken te erkennen?
Ik ken nl. geen enkele advocaat die de zgn. 'witte vlucht' erkent.
Ik vroeg het dhr. Bolkestein na zijn Elsevier/Schoo-lezing in 2011, maar hij kende geen enkele oplossing voor dit groeiende probleem.