Nikam, Re [2008] EWCA Civ 1276

[2008] EWCA Civ 1276ON APPEAL FROM THE LAW SOCIETYVenue Royal Courts of JusticeStrandLondon, WC2Date Tuesday, 28 th October 2008B E F O R E:LORD JUSTICE STANLEY BURNTONIN THE MATTER OF THE SOLICITORS ACT 1974RE A SOLICITORNo. 16 of 2008
R.NIKAM
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT DID NOT APPEAR AND WAS NOT REPRESENTEDMR I MILLER (instructed by The Law Society) appeared as a Solicitor Advocate on behalf of the Respondent.
Judgment
[1]On 11 February 2008 a Solicitors Regulation Authority adjudicator, Miss Webb, considered an application for the 2007/2008 practising certificate made by Ranjana Devi Nikam, the appellant. The adjudicator refused to issue one. She did so for the following reasons:
“The Solicitors Regulation Authority’s overriding duty is to take action necessary to ensure that the interests of the public are adequately protected, whilst balancing this obligation with due regard for the solicitor’s right to practise. I have taken into consideration that the Home Office, Border and Immigration Agency, had advised the Solicitors Regulation Authority that Miss Nikam did not have leave to remain in the United Kingdom after 31 October 2004 and as a consequence, is not entitled to work for remuneration. It is understood that Miss Nikam has exhausted her appeal process and will accordingly be deported.”
In these circumstances, I am satisfied that it is not in the interests of the public, and would prejudice public confidence in the effective regulation of the profession by The Solicitors Regulation Authority, if a practising certificate were to be granted to Miss Nikam, who is an overseas national without valid leave to remain in the UK, and not a person therefore entitled to practise law in the jurisdiction.”[2]An appeal from that decision was dismissed by the SRA’s adjudication panel on 24 April 2008. Dismissing the appeal, the appeals panel noted that within her appeal she raised concerns about the status of qualifications obtained under the Qualified Lawyers Transfer Regulations (“QLTR”) and how they affected her immigration status. It noted how those matters were outwith the scope of the appeal. It further noted its concern that she had been working for remuneration when her immigration status did not permit her to do so. Finally it noted its concern that any client she had would be at risk, given that she might well be subject to deportation. They concluded that in those circumstances it was not in the public interest to grant her a practising certificate.[3]Miss Nikam appeals now from the Authority’s refusal to issue her a practising certificate for the year 2007/2008. Her appeal is pursuant to section 13(2)(b) of the Solicitors Act 1974. She has not appeared at the hearing of this appeal, but my enquiries of the court office have established that she is well aware of the hearing.[4]In her petition Miss Nikam seeks a number of heads of relief. She seeks compensation in respect of, amongst other things, matters concerning her relocation from India to England in order to take the Qualified Lawyers Transfer Tests (“QLTT”) fees incurred in taking the tests; costs of air fare; admission fees; admission fee to join the Solicitors’ Roll. She also seeks compensation for matters relating to Home Office enquiries into her immigration status; court proceedings arising out of and in connection to that matter; cost of correspondence to the SRA; the SRA’s intervention to her practise; loss of business here and in India and humiliation (inaudible) arising from the foregoing. Moreover she seeks what might be a declaration as to who is responsible for proving that the QLTT is a United Kingdom qualification that entitles its holder to live and work in the United Kingdom. She also raises an issue that the SRA has, in its approach to her, breached her Article 6 (inaudible) rights. Miss Nikam does not expressly state in her petition that she seeks an order directing the SRA to issue her with a practising certificate. I assume, however, that she does seek such an order.[5]This appeal was originally scheduled for 22 July 2008. It had, however, to be adjourned from that date because Miss Nikam was due to be deported on 14 July 2008. Apparently her deportation was postponed. Miss Nikam, seeking an adjournment to that hearing also by an application dated 9 July 2008, sought a stay of these proceedings pending the outcome of an application of the Home Office. In that application Miss Nikam sought, or perhaps seeks, to rely on the QLTT as the grounds for being granted leave to remain. It was submitted that a conflict of interest arose and it was said that the Master of the Rolls, the Lord Chief Justice and the Lord Chancellor would be liable to pay her compensation for the SRA’s failure to make representations to the Home Office that the QLTT ought to be recognised as a basis upon which leave to remain should be granted. That stay application was refused. It was refused as there is no real or perceived conflict of interest between the Master of the Rolls hearing this present appeal, limited as it is to a consideration of the validity of the SRA’a decision to refuse a practising certificate, and any potential future proceedings in matters relating to Miss Nikam’s immigration status.[6]However, Miss Nikam sought to join the Master of the Rolls, the Lord Chief Justice and the Lord Chancellor in these proceedings. In those circumstances, out of an abundance of caution and to ensure that there was an appearance of complete fairness, the Master of the Rolls determined that it was appropriate that I should hear this appeal rather than him. Having said that, and having carefully considered all the papers in this case, I have no doubt that the application to join the Master of the Rolls and others in these proceedings is wholly unjustified and unfounded and indeed there is no power to join them in an appeal such as this.[7]I would add that although section 13 authorises the Master of the Rolls or the judge acting in his place under subsection 4(e) to make “such other order as he thinks fit” on an appeal under section 13, I have no doubt that the section and indeed the Act do not authorise the making of orders for the payment of damages and the like such as those sought by Miss Nikam in the present case.[8]Turning to the substance of the appeal, Miss Nikam is qualified to practise law in India. Prior to leaving India in 2001 she practised in the High Court in Mumbai as a Maharashtra and Goan advocate. She practised there from 1995 to 2001, at which time she decided to move to London in order to establish an international law firm. To that end she moved to London in order to sit the QLTT. She did so following the grant of entry clearance into the UK based on the issue of a QLTT eligibility certificate. In December 2003 she passed the QLTT. She remained in England under a student visa until 2004; that visa gave her leave to remain until 31 October 2004. Before her leave to remain expired, Miss Nikam on 2 February 2004 was admitted as a solicitor. Then on 15 July 2004 she was granted a waiver under Rule 13 of the Solicitors Practice Rules 1990 to enable her to commence practice in England as a sole practioner without completing the otherwise compulsory three years’ legal practice in England and Wales before doing so. On 13 September 2004 she commenced practice as a sole practiitoner under the style “Rano Nikam & Co”. The SRA, in its written submissions, notes that it is not part of its processes to ascertain whether an applicant for waiver is entitled to work in England under immigration legislation and regulations. Equally it seems remarkable that the SRA can issue a practising certificate to an individual who has no legal right to work in England. However, it seems to me that that is a consequence of a failure to disclose in the application form made by the solicitor; that the lack of a right to work in this country, and indeed a right to continue to reside in this country, is a matter going to his or her suitability to practise as a solicitor and therefore is a matter which should be disclosed on the form.[9]It seems that from October 2004 Miss Nikam took steps to obtain a further grant of leave to remain. Those steps resulted in an initial refusal of leave to remain in January 2006. Reconsideration of that decision was refused on 31 May 2006. An application for a visa under the highly skilled migrant program under non-asylum application rules was refused. The Immigration Agency, on 5 September 2007, confirmed to the SRA that Miss Nikam had exhausted her avenues of appeal and would consequently be subject to deportation proceedings.[10]In that context the SRA took steps to intervene in the practice on 30 October 2007 and subsequently refused in February 2008 to assume new practices. They took steps to bring proceedings against her before the Solicitors Disciplinary Tribunal on two grounds: first that she practised in England despite the fact that she could not lawfully do so, and secondly that she was dishonest in obtaining a practising certificate and conducting a practice, given that she must have know that she had no lawful right to work in the United Kingdom.[11]Miss Nikam’s submissions focus on two points: first she raises questions as to whether the SRA, the Master of the Rolls, the Lord Chancellor or the Lord Chief Justice is responsible for making representations on her behalf to the Home Office to the effect that the QLTT is to be recognised as a qualification that grants her right to remain in the United Kingdom. Secondly, that the SRA adjudication panel had erred in reaching its decision to refuse to grant her a practising certificate by deciding wrongly that issues related to immigration status could not be considered by it.[12]The SRA’s position is equally straightforward. It submits that it was plainly right to refuse to issue Miss Nikam a practising certificate. To do so would have been contrary to the public interest, as she could not lawfully work in the United Kingdom, and the practising certificate could not therefore have been issued for a lawful purpose. Equally, given the risk of deportation, permitting Miss Nikam to practise would have been contrary to the interests of any clients she might have obtained. I would add that it is an additional objection to the grant of a practising certificate to someone who cannot lawfully work in the United Kingdom that the grant knowingly of such a certificate would be to connive at a breach of the immigration statutes and regulations.[13]The jurisdiction on this appeal is an appellate and supervisory one which relates to a refusal to grant a practising certificate. This is not the proper forum to deal with the vast majority of Miss Nikam’s claims for compensation and indeed in my judgment her claims are wholly unfounded.[14]So far as Miss Nikam’s claim for declaratory relief is concerned, the answer to the question is outwith the ambit of the present jurisdiction. Questions such as whether the SRA or others should make submissions on behalf of individuals seeking leave to remain are properly the matter of proceedings in another forum, i.e. judicial review.[15]For my part, without prejudice to any such proceedings, it would seem to me that the question as to who is responsible for making submissions as to the nature of the QLTT and whether it is a suitable basis for granting leave to remain is a matter solely for the individual seeking leave to remain. It seems to me that it cannot be the role of the SRA, which is a professional regulator, to make representations on behalf of individuals in this respect. Nor could it be the role of individual judges or the Lord Chancellor to act on behalf of individuals in the way that Miss Nikam has suggested.[16]I turn to the question as to whether the SRA erred in refusing to grant Miss Nikam a practising certificate. I have reached a clear conclusion that it did not. It was entirely right for the appeal panel to refuse to take into account Miss Nikam’s concerns regarding QLTT and her immigration status. Those were matters between Miss Nikam and the Home Office. Moreover, in the absence of a legal right to remain and work in the United Kingdom it would have been entirely improper for the SRA to grant Miss Nikam a practising certificate. The grant of a certificate in circumstances where the holder has no legal right to remain or work in the United Kingdom would have been, and is, contrary to the public interest. It would have been prejudicial to the interests of the public, who might have been wrongly persuaded by the sight of the practising certificate that Miss Nikam could lawfully conduct work for them. It would be prejudicial to the reputation of the profession. It would, as I have said, involve conniving at a breach of the immigration regulations and indeed a commission of a criminal offence by Miss Nikam, and it would be contrary to the interests of clients, who might find that she was suddenly deported in the middle of dealing with one of their matters.[17]Lastly, there was nothing in Miss Nikam’s submission that the SRA breached her Article 6 rights. The SRA process has been held by the Court of Appeal in Thomson v Law Society [2004] EWCA Civ 167 as applied in Lever v Law Society No. 13 of 2007 [2008] EWCA Civ 411 to be compatible with Article 6. It is compatible because, among other reasons, it includes the right to bring the present appeal, which is an appeal to an independent tribunal, namely the Master of the Rolls and a High Court judge.[18]In those circumstances, I have no doubt that this appeal fails.

Order

Appeal dismissed