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Urgent Removals and the need for restraint by the judiciary (20 November 2012)

By Adam Tear

On the 30 October 2012, His Honour Sir John Thomas, President of the QBD, handed down judgment in R oao Hamid v SS Home Department [2012] EWHC 3070 (Admin) giving guidance in relation to urgent Judicial Reviews relating to removals. The President was clearly concerned about both the merits and timing of many claims for judicial review where removal is in prospect¹. This judgment has now been widely circulated among the legal profession and raises a number of practice points.

We believe that the vast majority of applications are still being made by unrepresented litigants in person rather than those that are represented; it is hoped that the majority of unmeritorious applications are not being made by the legal profession and certainly not by those funded by the Legal Service Commission.

Timing / delay in the case

Unfortunately, although impliedly critical of the timing of the claim, the judgment does not make clear exactly what timescales were save for the following:

• The Claimant arrived in January 2011, and was granted leave to remain until a time in 2014,


• In March 2012, it appears that leave was curtailed, to end in May 2012, though for what reason and whether the Claimant was aware of this is unclear.


• The Claimant was detained on Saturday 20 October 2012, and on Sunday the 21 October 2012, the UKBA served removal directions on the Claimant. It appears the Claimant was unrepresented.


• At some point between the 22 to the 24 October 2012, the Defendant instructed a firm of solicitors to make representations as to why he should not be removed; they did so and the representations were rejected.


• On the 24 October 2012, the Claimant’s solicitors made further representations, these it appears were rejected (unusually for the UKBA) the same day, the timings of this process are not clear.


• At 4:00pm the Claimant’s Solicitors lodged an application for Judicial Review seeking to challenge the removal; we do not know on what basis this was made.

Forms

The major issue among the points the Court raised was to emphasise the importance of using the correct (very recently updated) form, and fill it out in full; this seems a simple and straightforward point, but it can be overlooked by those acting in urgent situations.

The case was clearly heard very shortly after the forms had been altered. At least in respect of the use of the correct form, there must be much sympathy for the solicitor in question, as the change of forms, whilst notified to ILPA, was not widely publicised and there was no update to CPR 54 PD – event though there is a specific section that deals with challenges to removal. Solicitors, particularly in urgent cases, often work from precedents, which add speed and efficiency. To effectively introduce a new requirement that a solicitor checks online which form is currently in use on every occasion that one is completed appears disproportionate.

Using the wrong form could now result in judges ordering the matter to be heard in open court (whether the judges will order a stay pending the hearing in Court is unclear), ordering the appearance of the solicitor, and the senior partner. The outcome of that hearing will be published with the solicitors, and the firm being named and shamed. n.b. the Court have also indicated that shortly forms will be amended for dealing with out of hours applications and renewals when an application has been refused on the papers.

For the Claimants it may result in the application not being heard before removal², or at all, clearly to the great distress to those that do have merits to their claim, particularly if this places the UK in breach of its obligations under the Human Rights Act.

The President is manifestly very concerned about what he perceives to be an abuse of the system.³ However, in my judgement the timings set out above seem unexceptional, especially as new solicitors were instructed post the setting of removal directions. (The case was also described as ‘totally without merit’ which is another matter, but as so little detail has been provided we are not in position to assess that judgement).

The President is clearly an experienced judge, but the judgement appears to ignore the realities of challenges to removal decisions. The very nature of the beast is that the UKBA are only required to give 72 hours notice of removal and of this only the last 24 hours need be during a working day. The UKBA often push this system to the very edge, and e.g. set removal directions on a Friday seeking removal for the following Tuesday morning. As solicitors, but perhaps not the President, are all too aware, this is not notice on the solicitor, but rather notice on the Claimant, as such solicitors often are the last to know that the UKBA are intending to remove at short notice.⁴ The Court also appears to have overlooked the fact that CPR 54 PD 18.2(c), referred to by Buxton LJ in Madan⁵ which is quoted with approval in this judgement, no longer exists.

Further, the first document drafted which is for Court’s consumption is actually drafted by the UKBA, in its ‘factual summary’: a document that must be lodged with any challenge to removal directions. These documents are notorious as being factually incorrect and or missing relevant information. In these circumstances it is not surprising that the first response is often to point out the inaccuracies or omissions in the UKBA’s justification of the decision to set removal directions, whilst also making up to date representations about the claimant’s case (which has often changed radically since the last occasion it was officially considered several years beforehand) together with a clear warning that failing to defer removal will result in a claim for judicial review. The approval of Madan implies that the Court believes that in the above circumstances the claim should be lodged without waiting for a response from the UKBA. The Court should be careful what it wishes for, as this could only increase the number of these claims. Further, the Court appears to be directing a practice which seems bound to waste a substantial amount of the LSC’s money through requiring that these applications are lodged immediately, where delay may have removed the need for a certificate at all.

Compliance with the Rules

Helpfully his Honour made a clear statement on failure to comply with the rules:

The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority. Para 10

Those in practice are more than aware that the single biggest failure to comply with the rules before the Administrative Court is the failure to lodge an Acknowledgment of Service within the determined period. We are sure that the Treasury Solicitors are not too worried by this turn, as they do not appear to be regulated by the SRA and as such will escape the wrath of the Court. We can only hope there is an alternative option to be taken.

However non compliance with Orders is a much more serious matter, which regularly happens, causing excessive delays to the processing of matters before the High Court. The Court has recently taken much more aggressive stances towards non compliance with Orders as discussed in a recent article in relation to actions of the SS Home Department.

Concluding comments

It is unfortunate that from time to time the Courts feel it necessary to make these statements. Mistakes happen especially under pressure, with demanding clients and other cases tugging at the concentration levels. Having said that, we entirely agree with the declared intention to refer abusive practitioners to the SRA. Unfortunately shady practices do happen within Immigration law, particularly sadly in relation to removals, were the vultures circle looking for their next fixed fee for a truly hopeless judicial review for a desperate client. The client is rarely in a position to bring an effective complaint, as they will be flown away helpfully by the UKBA. Painting the whole profession as shady operators is simple unacceptable in this day and age, when a judge of the seniority of the President of the QBD should be well aware that legal aid firms, who are required by contract to employ only accredited staff, will only act where they believe there is over a 50% chance of success. If the overall success rate of a firm drops below 50% they lose their ability to act for clients under legal aid.

On the 16 November 2012, the Court gave a further judgement, which named three solicitors who had failed to adhere to the Hamid judgment including the Solicitors in Hamid, who appear to have made a further application.

We hope that the Court will choose a more constructive path and invite the stakeholders in this matter to discuss the ongoing issues, and how best to deal with the vultures, that plague the world of removals.