Public Law Solicitors

by Nicola Burgess

A client of mine was removed in pursuance of a deportation order earlier this year, this could have been avoided. Her appeal against deportation was dismissed on the 4th November 2009, despite the fact that she was legally represented at this time, her previous solicitors failed to obtain key evidence of her subsisting relationship with her husband, a British national. This matter was in issue but the previous solicitor failed to obtain any evidence in support, no witness statement, no correspondence exchanged between them despite the fact that the husband was a prolific letter writer. As a result it was not accepted that the marriage was subsisting and the appeal was dismissed.

Fast forward several months and the client is served with removal directions, her representative who failed to adequately prepare the appeal is now failing to answer his telephone and she cannot find a new solicitor. In a moment of panic, driven by not wanting to be separated from her British husband and child, she files an application for Judicial Review and seeks an injunction preventing her removal, the injunction is duly granted so as to maintain the status quo. Unfortunately when considered on the papers permission is refused as the grounds amounted to little more than a disagreement with the findings of the Immigration Judge and the decision to remove. The Secretary of State by way of the summary grounds of defence treated the grounds as an implied application to revoke the deportation order and had certified the claim under Section 96 of the Nationality, Immigration and Asylum Act 2002.

We were subsequently instructed to act for the client and set about obtaining evidence of the subsisting relationship. By this time the client’s son had now turned 7 years of age, a recognized important mile stone within the realms of immigration law. In total 71 pieces of compelling evidence were obtained, including witness statements and the correspondence exchanged between husband and wife, clearly showing that the relationship was subsisting. A formal application to revoke the deportation order was submitted on the basis of this compelling evidence and we sought for the Section 96 certificate to be withdrawn. The Secretary of State maintained her original decision and so we had no option but to challenge this decision by way of Judicial Review.

Unfortunately just 3 days after the application was filed at court the client was detained and removal directions were set. The Secretary of State relied upon her guidance found at Chapter 60 of the Enforcement Instructions Guidance (EIG) which states that OSCU should not automatically defer Removal Directions where a Judicial Review application is made with detailed grounds if there has been less than 3 months since a previous Judicial Review or a statutory appeal have been concluded on the same or similar issues. This provision is of course designed to prevent applicants from repeatedly delaying removal by filing unmeritorious claims; it clearly had no purpose here. Nevertheless it was utilized by the Secretary of State and so it was necessary to seek an injunction preventing removal.

This was considered on the papers by Mitting J who refused permission and a stay. His view was that “all of the material relied upon by the Claimant either was, or should have been, deployed in her appeal to the AIT.” He went so far as to conclude that the current proceedings were a transparent attempt to frustrate removal. This was plainly wrong. Given the fact that removal was imminent an expeditious oral hearing was listed. Unfortunately further funding was refused for this. The Legal Services Commission took the view that the extensive and compelling evidence did not create a realistic prospect of success. It was arguable that an Immigration Judge could reach a different conclusion and allow the appeal and given what was at stake for this family we and counsel agreed to continue acting for the client on a pro bono basis. This meant that she would be represented at the oral hearing and so would not again lose the opportunity to put her case at the highest.

The day prior to the hearing the Secretary of State upped the stakes and in the Acknowledgement of Service sought a wasted costs order against us as the claimant’s solicitors. We strongly objected to this as it was wholly unreasonable. The jurisdiction to make a wasted costs order exists only where there has been an:

• Improper, unreasonable, or negligent act or omission (Bar Council Guidance)

The jurisdiction must be exercised with care and only in a clear case. Further under Part 48.7 of the Civil Procedure Rules, subsection 2: the court must give the legal representative a reasonable opportunity to attend a hearing to give reasons why it should not make such an order. In the client’s case, she may not have procedurally assisted her case by filing the application for Judicial Review in person, but this was an act borne of desperation and the desire not to be parted from her family. By seeking such an order based on a claimant’s behaviour when she was legally unrepresented seemed designed to dissuade legal representation in such cases, where it is in fact of the most importance due to the issue of removal and the permanent fracturing of family life. Again the Legal Services Commission also rather surprisingly failed to see the importance of continuing legal representation in such a case.

On the point of costs alone common sense prevailed and the Judge refused to entertain such a wasted costs order. Sadly, permission was refused as HHJ Mackie found that on no view could there be a realistic prospect of success before an Immigration Judge. The European Court of Human Rights (ECtHR) declined to make a Rule 39 indication and so the client was removed. This could and should have been avoided. Let’s hope that the ECtHR finally remedies this catalogue of errors and reunites this fractured family.