B & Anor, R (on the application of) v Secretary Of State For The Home Department & Anor (Rev 1) [2012] EWHC 3770 (Admin)

Case No CO/11272/2012[2012] EWHC 3770 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 20 December 2012
Strand
London WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR JOHN THOMAS)
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF BAppellant&AppellantTHE QUEEN ON THE APPLICATION OF JAppellantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent&RespondentUPPER TRIBUNAL (IMMIGRATION ASYLUM CHAMBER)Respondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
J U D G M E N T
[1]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.

The duty to the court

[2]I say that by way of introduction because it is important to realise that advocates and litigators owe a duty to the court. That is a longstanding part of our law but it is reflected in section 188 of the Legal Services Act 2007, which provides, at subsection 2:
"(2) The person to whom the section applies has a duty to the court in question to act with independence in the interests of justice. "(3) That duty, and the duty to comply with relevant conduct rules imposed on the person by section 176(1), override any obligations which the person may have (otherwise than under the criminal law) if they are inconsistent with them."
[3]The duty of the advocate to the court has been set out in a number of authorities. Perhaps most pithily, it is put by Lord Denning MR in Rondel v Worsley [1967] 1 QB 443 at 502, where he says of a lawyer:
"He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants, or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that is fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court."
In more prosaic terms, those duties are set out in the respective rules of conduct of both of the solicitors and barristers profession. The duties of an advocate are also referred to in the decision of the Privy Counsel in Harley v McDonald [2001] UKPC 18, [2001] 2 AC 678, particularly at paragraphs 55 and following. The observance of the duty to the court and the requirement of competence[4]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 to 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.[5]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. The case of B[6]It was his case that he had arrived in the United Kingdom from Bangladesh in 1997. The Secretary of State contended he had only arrived in this country in 2009. In any event, he was apprehended on 24 June 2011. His claim to remain was rejected by the Secretary of State. The appeal was heard by Immigration Judge Finch, who rejected it on 1 August 2011. Permission to appeal was refused. The judgment dealt completely, in every way in which the claim could be put, including the time of his entry and, secondly, the Article 8 issues. The careful judgment of the immigration judge accepted that Article 8 was engaged but it was not disproportionate to remove him.[7]An application was made by solicitors then representing him to the Secretary of State on the basis of long residence and on Article 8. That was rejected on 29 September 2012. On 12 October 2012, he was served with directions for removal on 24 October.[8]He went to the new solicitors, who are those solicitors who are before us today. Another letter was written to the Secretary of State putting forward grounds that had already been advanced. They were rejected. On 22 October, a judicial review application was lodged on the basis of a failure to give consideration to Article 8 and on the basis of long residence. There was no copy in the application bundle of the grounds before the First Tier Tribunal, nor those for permission to appeal.[9]It appears an out of hours application was made on that day, or the following day, to the duty judge. An out of hours service is what this court provides, but cases like this demonstrate the abuse to which it can be put. The judge refused to stay the removal.[10]On 15 November 2012, Stuart-Smith J considered the judicial review application and dismissed it as totally without merit, making it very, very clear to anyone who had read or considered the matter that to argue that Article 8 had not been correctly applied was totally without merit. Nonetheless, on 27 November 2012, an application was made to renew. There was then an application for interim relief. The application put forward as one of the grounds that the way in which the First Tier Tribunal had dealt with the matter was that, having found that Article 8 was engaged, “it was a non sequitur and Wednesbury unreasonable for the immigration judge to dismiss the appeal”. The judge considering the case, Cranston J, described this as nonsense. It was indeed nonsense because even if Article 8 is engaged, that does notmake it inappropriate to remove.[11]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 conceivable explanations for such conduct: 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.[12]In the light of the fact that the apology has been made by counsel and he has undertaken that, in future, he will not deal with such cases without(a) improving his knowledge of the law, and(b) consulting his colleagues in chambers, I do not consider we should take any further action.[13]As to the solicitors, they have similarly apologised. They had relied on counsel. In the circumstances of this case, I think it sufficient to draw to their attention their duty only to instruct counsel who is competent in this area of the law and to satisfy themselves that the arguments are ones that can properly be made to this court.

The case of J

[14]J came to this country in 2003 from Mauritius when he was 18 to study. His visa was extended to end on 25 October 2011. Three days before that was to expire, he applied for indefinite leave to remain. He said that, although he was no longer pursuing his studies, he was supporting his aunt and uncle. He sought to advance a claim under Article 8. The Secretary of State refused on 27 January 2012. He appealed to the First Tier Tribunal. That appeal was heard on 26 April 2012. There he was represented by a solicitor advocate who put forward the arguments. The judge found that there was no dependency and, therefore, no Article 8 family life. Even if there had been, it would not be disproportionate to remove. On 23 July 2012, permission to appeal was refused.[15]On 19 October 2012, an application was made, signed by the solicitor advocate, for judicial review firstly of the decision of the Secretary of State made on 27 January 2012 and, secondly, against refusal of permission to appeal to the Upper Tribunal, dated 24 July 2012. The grounds, however, were directed completely at the decision of the Secretary of State. There was nothing at all in the grounds about the refusal to grant permission by the Upper Tribunal. As regards the decision of the Secretary of State, it was hopelessly out of time and, in any event, unmaintainable as J had a right of appeal and had exhausted it. To advance such a claim was either conduct of a person who understood the law and was advancing something which he knew to be hopeless, and was therefore putting forward an argument that could not possibly be made by anyone who was competent; or, alternatively, displayed a manifest incompetence in the law. A competent person would have known that the only possible grounds for judicial review were a challenge to the decision of the Upper Tribunal on the principles set out in Cart v the Upper Tribunal [2011] UKSC 28, on the very narrow basis and in accordance with what the courts have said in that and subsequent cases. Although it was mentioned in the application, there was nothing about the Upper Tribunal decision in the grounds.[16]In what, if I may say so, has been an extremely responsible approach by the firm that employs the solicitor advocate, they have apologised profusely to the court. They have said that it is not their policy ever to allow a member of the firm to make an application of this kind -- hitherto it had always been done by counsel -- and that, in future, they will ensure that that rule is maintained. The solicitor advocate concerned has accepted that his application displayed manifest incompetence. We have been assured by the solicitors concerned that they will, in the future, ensure that he is properly supervised and that applications to this court will go to those experienced in this area of the law.[17]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.

MR JUSTICE CRANSTON: I agree.

THE PRESIDENT: Thank you all very much.

Cited in 1 later judgment