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"By perseverance the snail reached the ark. "
- Charles Spurgeon

"Not all those who wander are lost."

19 juni 2015

Vreemdelingenrecht zaak waar advocaat fraudeur was en Immigratiedienst er een potje van maakte

Een Britse uitspraak is vaak een enorme lap tekst die je niet snel kunt scannen. Desalniettemin vind ik ze vergeleken bij Nederlandse uitspraken een stuk persoonlijker en begrijpelijker voor de partijen. Onderstaande uitspraak laat zien hoe mensen soms de pineut zijn van knullig handelende adviseurs en ambtenaren.

  1. The Claimants in this case are a brother and sister who are Indian nationals, who came to this country lawfully on student visas, which were later extended for post-study work leave in 2008. In 2010, the Claimants sought to extend those visas. The immigration advisor who acted for them failed to put in applications based on true facts, and unknown to the Claimants, put in claims based on fraudulent documents. The Claimants have therefore been badly let down by an immigration advisor who has since served a prison sentence for fraud. As I explain below, they have also been ill-served by the Home Office, which mishandled their case. As a result of the immigration advisor's actions, they were wrongly suspected of having used deception to remain in the country in March 2012; and detained before they left the country. They have accordingly been subjected to an unlawful period of immigration detention for a period of seven days between 14 March 2012 and 21 March 2012, and in their removal from the country in circumstances in which they ought not to have been required to do so. Their appeals, conducted out of country, were also mishandled by the Defendant, with documents being lost, and many delays. Once the appeals were allowed, there were severe delays in action being taken to consider how to address the consequence of that.

  2. This claim is therefore brought in very unfortunate circumstances. As the Defendant's skeleton argument noted (underlining in the original):

  3. "… [I]t is important to record the Defendant's apology to the Claimants for the manner in which they were treated in March 2012. An error was certainly made. The Claimants should not have found themselves in this situation. They should not have been detained. They should not have been removed in the circumstances they were. The Defendant apologises for this."
  4. Counsel for the Defendant started his oral submissions by repeating this apology in open court – and he was right to do so. As a result of these events, the Claimants may very well have a private law claim for damages for false imprisonment. But that is not the issue in this application for judicial review. Indeed, part of the problem is that it is very unclear what issues of public law the Claimants' lawyers said arose in this case. Ultimately, I have concluded that there is no properly pleaded public law claim, and the grounds as pleaded, even as expanded and re-cast in the skeleton argument, raise no failing by the Defendant which can constitute grounds for a successful challenge by way of judicial review. I make some observations about the way in which this claim was conducted on behalf of the Claimants in paragraphs 26, 31,35-44,54 and 55 below. 

Er gaat van alles mis in de zaak en de broer en zus hebben een enorme rottijd. Maar hun aanvraag wordt tenslotte toch op goede gronden afgewezen vindt de rechter. Maar let op hoe ze dan dat formuleert en ook de partijen eigenlijk adviseert wat er nog wel kan worden gedaan:

    Conclusion and costs
  1. For these reasons, and notwithstanding my great sympathy for the Claimants who have been let down by a great many people during the course of this saga, this application for judicial review is dismissed.

  2. The Defendant having succeeded in defending this application for judicial review, I will consider any application for costs which she may make in writing. Notwithstanding the usual rule that the winner obtains its costs from the loser, in view of the circumstances of this case; the failure to comply with the pre-action protocol; and the delays in lodging both Acknowledgement of Service and Detailed Grounds of Defence, it may take some compelling factor to persuade me to make any order that the Claimants be liable for the Defendant's costs.

  3. The fact that the claim has not succeeded means that strictly I do not need to address the schedule of costs lodged by the Claimants. However, the Claimants are privately paying clients and I regret that in fairness to them, I ought to say that I regard the sum which would have been claimed for costs in this case – which presumably is the sum they are to be charged on a solicitor-client basis - as grossly excessive. It is four or five times more than I commonly see in cases of an equivalent nature which have been well prepared by excellent and efficient advocates. As pointed out in the Defendant's skeleton argument, the Claimants' lawyer has not begun to plead the case properly or to comply with the practice directions as to what should be included in a claim. Moreover, even if the Claimants had succeeded, I would have felt unable to award the costs of the skeleton argument against the Defendant, for the reasons given by Lord Justice Jackson in Inplayer Ltd v Thorogood [2014] EWCA Civ 1511 at [51]-[57]. In that case, refusing to award the costs of a skeleton drafted by the same advocate because it failed to fulfil the intended clarificatory purpose of a skeleton argument, Jackson LJ described the skeleton as constituting "[many] pages of rambling prolixity through which the reader must struggle to track down the relevant facts, issues and arguments". I very much regret to say that the skeleton argument in this case suffered from the same defect. Had this been a case in which the Defendant would have been ordered to pay the Claimant's costs in principle, it would have been an uphill struggle for the Claimant's advocate to persuade me to award a fraction of the sum claimed (though I would have considered submissions from both parties as to quantum before reaching a concluded view). Whether or not the costs can be enforced against the Claimants may be a matter for the Legal Ombudsman; the claim having failed, it is not a matter for me.

  4. Postscript
  5. When I sent a draft of this judgment to the legal representatives (in the usual way), for typographical and other corrections, the Claimant's advocate said that the reference to the Legal Ombudsman (LeO) "appears to make no sense in this specific matter. LeO may be relevant to a bill in non litigation matters". He suggested that a contested bill would be assessed by the Senior Costs Office. I have checked this with the Legal Ombudsman's office, and they have confirmed that if a client wishes to challenge a bill from a regulated lawyer in connection with the conduct of litigation as being manifestly excessive, the Ombudsman has jurisdiction to consider it. My reference to the Ombudsman is therefore correct.

  6. The Claimants' advocate has correctly pointed out that the judgment does not mention two post-hearing notes submitted by the advocates, on 11 and 12 February 2015. I address these briefly below.

  7. The Claimants' note was an analysis of the case of R(Boafo) v Secretary of State for the Home Department [2002]EWCA Civ 44. That case had been cited at paragraph 11 of the Claimant's skeleton argument but no copy was provided at the date of the hearing. The Claimant's note submitted that Boafo was authority for the proposition that a court can grant Indefinite Leave to Remain ("ILR") in its own right if that is the inevitable consequence of a Tribunal's decision, even if the Tribunal does not give directions to that effect.

  8. The Defendant's counsel also produced a note distinguishing the facts of the Boafo case. He submitted that in this case there was no basis to require the defendant to grant ILR. Even if the Claimants had not wrongly been detained and removed, leave could have been lawfully curtailed because it was obtained by the Immigration Advisor's deception. Even if that had not happened, leave would have expired by the time of the Upper tribunal decision in any event. Mr McKendrick submitted that unlike Boafo, there was no unlawfulness in regard to the decision to refuse the Claimants further leave to remain.

  9. For the reasons outlined in the judgment, I accept this submission. My reading of paragraph 30 of Boafo is not that the Court was suggesting that it had any freestanding jurisdiction to grant ILR itself. Rather the Court, quashing a decision to refuse indefinite leave, can direct what the lawful result should be on a redetermination – i.e that the Secretary of State should himself grant that leave.

  10. The reference to Boafo makes no difference to my judgment.

  11. The second observation made by the Claimants' advocate is that there was some delay in handing down this judgment. (The final submissions from the parties were received on 12 February 2015 and the draft judgment was sent to the parties in embargoed form on 15 June 2015). The Court of Appeal has said that judgments should normally be handed down within three months, and this one took just over four. I apologise for this delay, caused by a period of leave in a week immediately after the hearing and thereafter pressure of other work.

  12. Finally, the Defendant's post-hearing note also attached a copy of the Home office's Complaint Management Guidance version 7. It observed that the usual timescale for receipt of a complaint to the Home office was three months but that this period could be extended and that

  13. "The Defendant is willing to extend time to the Claimants, given the usual and regrettable background circumstances and given the court's concerns. Any complaint should be in writing and addressed to the Treasury Solicitors to ensure it is correctly processed."
  14. In the light of this undertaking, it may be that a complaint through this route could constitute an effective, cost-free means of obtaining redress for at least some of the detriment which the Claimants have suffered, without the need to commence private law proceedings.

  15. I have been asked to order that the Claimants may commence private law proceedings if so advised. A claim for false imprisonment would be within limitation, and no permission from me would be needed for such a course. For the avoidance of doubt, I do not consider that it would constitute an abuse of process for such proceedings to be commenced in private law proceedings.

  16. There is, in the circumstances, no application for costs from the Defendant.
 Voor het hele verhaal / de uitspraak zelf:

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