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- Charles Spurgeon

"Not all those who wander are lost."

02 september 2015

Vreemdelingenrecht advocaat doet baggerwerk? Dan zelf voor de rechtbank komen

Sir Brian starts this latest judgment with a general warning or principle:
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.
…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 case had earlier been refused permission and described by Mr Justice Jay as “a complete shambles”, who ordered a Hamid hearing.


Leveson anger over lawyer’s asylum case ‘shambles’

Posted on
Senior UK judge Sir Brian Leveson has strongly criticised a solicitors firm for the “systematic failure” surrounding an asylum application on behalf of two Pakistanis. The handling of a judicial review application by solicitors Rashid and Rashid, of Merton High Street, South Wimbledon, London, was put under investigation by the Solicitors Regulation Authority.
Leveson, President of the Queen’s Bench Division said: “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.”
He spoke of the danger of lawyers abusing the court processes for personal gain and questioned whether Rashid and Rashid had acted “in a professionally appropriate manner towards its clients”. The suggestion was that the firm extracted a fee of around £5,000 with a promise that the clients would have experienced counsel, yet the case seems instead to have been entrusted to an inexperienced case worker. That would be a clear breach of duty, said Leveson. 
Mr Justice Jay, who received the application in the High Court, had said: “These proceedings are a complete shambles. You have not begun to understand the basic procedures which apply.”
Rashid Khan, the sole principal at the firm, has admitted the grounds set out in a judicial review application in the case of Adil and Amir Akram by the case worker, who holds a legal secretary diploma, “were badly drafted and failed to identify the relevant principles”. 
Leveson said Khan had allowed documents to be served “which purported to be with his authority and knowledge, but which had not been checked as legally justifiable”.
Khan submitted an apologetic letter to the court with a list of steps he proposed to take to avoid repetition including ensuring all judicial review grounds be prepared with the advice of Counsel. Such a letter is in line with the required response to such cases under Hamid [2012] and Butt [2014] – which Jay had told Khan to read before submitting his letter. Leveson, however, considered there was a problem with the statement of truth regarding the judicial review application – that it had been signed off by him, in effect that he “takes ownership and responsibility of the facts and matters et out in the application”. Failures relating to the statement of truth were serious, said Leveson.
Secondly there was concern “that legal representatives may be incentivised to use and abuse the processes of the Court for personal gain”. Asylum seekers were often extremely vulnerable, often in detention and facing imminent removal. “They are therefore 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.” If they find they have been misled, it may be too late since they may have already been deported and not able to seek repayment or take legal action against their solicitors. The apology and remedial steps did not obviate the need for the SRA inquiry. (Details of the case: R (Akram and another) v SSHD)

There is increasing concern among judges about the failings of solicitors in immigration cases, to the extent that a special procedure has been put in place – the so-called Hamid court or hearing – of which Akram is the latest example. But this time it is serious.

Hitherto lawyers have been made to come to court to apologise and tell the court what processes they have put in place to remedy deficiencies. Even in quite serious cases such as R (Siddique), in which Eden Solicitors had previously appeared before a Hamid hearing, and R (Patel), an allegedly abusive application “based upon the dishonesty of an employee [of Malik & Malik] who felt pressured to make the application and to deceive the senior partner into signing the appropriate cheque to pay the court fee”, the firms were spared reference to the Solicitors Regulation Authority. These two cases were among four dealt in the Butt hearing – and there have been more.(See Awaku and B and Another)

In Butt Leveson said: “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.”
The Hamid courts are controversial. There are fears that media reports based on the hearings play to prejudices about unjustified asylum claims or the lawyers who pursue such claims. This is clearly not Leveson’s agenda. His concern is that too easily an asylum seeker or other person threatened with deportation may pay money with no way of knowing it has been well spent – and no way of bringing a solicitors firm to book once he or she has been ejected from the country.
The cost to the public purse is also an issue – adding a twist to the politically charged nature of the Hamid hearings. Leveson said, again in Butt:
“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.”
Whether, as part of a “stepped approach”, having a judge of Leveson’s standing (particularly after the Leveson inquiry into press regulation) tear a strip off you in open court is preferable to facing the rather more discreet rigour of the SRA is a moot point. There is also an issue that the Hamid hearing is not quite a fact-finding forum – a point made carefully in Akram by Leveson who was circumspect in limiting his words to broad “concerns”  and speculations about the sort of things that might happen at a poor practice.This did not prevent him saying some provocative things – and could give cause for concern that he might as a result inadvertently be influencing the SRA inquiry

Those lawyers who object to the Hamid hearings also argue that they do no good and that the numbers of immigration judicial review applications have not fallen as a result. But that would require quite a sophisticated statistical study to prove or disprove. The best one can say, perhaps, is that the jury is still out on Hamid courts.

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