CO/5676/2013, CO/6477/2013, CO/17439/2013, CO/17450/2013

Neutral Citation Number: [2014] EWHC 264 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL

Tuesday, 28 January 2014

B e f o r e:

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

(SIR BRIAN LEVESON)

MR JUSTICE CRANSTON
---------------------

Between:
THE QUEEN ON THE APPLICATION OF BUTT
Claimant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
THE QUEEN ON THE APPLICATION OF KIRAN
Claimant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
THE QUEEN ON THE APPLICATION OF SIDDIQUE
Claimant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
THE QUEEN ON THE APPLICATION OF PATEL
Claimant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
---------------------

Computer-Aided Transcript of the Stenograph Notes of

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Mr Andreas Pretzell (instructed by M&K Solicitors) appeared on behalf of the First

Claimant
Mr Zeeshan Mian (Solicitor Advocate) (instructed by Denning Solicitors) appeared on
behalf of the Second Claimant
Miss Samantha Broadfoot (instructed by Eden Solicitors) appeared on behalf of the Third
Claimant
Mr Andreas Pretzell (instructed by Malik & Malik Solicitors) appeared on behalf of the
Fourth Claimant
---------------------

JUDGMENT

SMITH BERNAL WORDWAVE

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:

1. In R ex parte Hamid v Secretary of State for the Home Department [2012] EWHC 3070

(Admin), the then President of the Queen's Bench Division Sir John Thomas, now Lord

Chief Justice, delivered a judgment of the court in which he made the point at

paragraph 10 that meritless applications by people who face removal or deportation are

an intolerable waste of public money, a great strain on the resources of this court and an

abuse of a service this court offers. He went on to observe that:

"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."

2. In subsequent decisions Awuku (No 2) v Secretary of State for the Home Department

[2012] EWHC 3690 (Admin) and B & J v Secretary of State for the Home Department

[2012] EWHC 3770 (Admin), Sir John identified the importance of compliance with

professional obligations and the need for appropriate scrutiny by qualified lawyers,

particularly in relation to applications on an ex parte basis.

3. It should not be thought that the approach which the then President initiated has in any

sense fallen into desuetude following his appointment as Chief Justice. In my

judgment, it remains equally critical that solicitors who work in this field make

applications only when based upon a proper consideration of the evidence, having

assembled appropriate proof and taken care to ensure that the time of the court is not

being wasted. If a firm is called to show cause in the future, the first occasion may

very well be met with an opportunity to address failings. That opportunity will have to

be seized and is likely to consist of a requirement for training and a report back to the

Administrative Court of steps taken in that regard. Normally a second, and even more
 so a third, reference to this court is likely to lead to the papers being dispatched to the

Solicitors Regulation Authority.

4. 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.

5. With those words, I deal shortly with the applications before the court today. The first,

R (Butt) v Secretary of State for the Home Department, concerns M & K Solicitors,

who had not previously come to the attention of this court but whose application was

considered to be totally without merit and an abuse of process because the relevant

decision was taken as long ago as 2010, with the pre-action protocol letter being dated

15 November 2012 and the claim issued 10 May 2013. Dealing with the application

for permission, Cranston J said:

"All this simply beggars belief and to suggest that this was an ongoing
refusal of the Secretary of State which somehow justifies coming to the
court almost three years after the decisions being challenged demonstrates
a level of incompetence which the senior partner of the firm can explain
to the Divisional Court."

6. It is commonplace that applications for judicial review must be made as soon as

possible and no later than three months after the relevant decision. Of course there is

liberty in certain circumstances to extend time, but to believe that such an extension

could be granted after three years is utterly to fail to recognise the importance of speed

SMITH BERNAL WORDWAVE

 and expedition in this court. It has not been suggested that the application was not an

abuse of process.

7. In addition, reliance was placed upon an extremely scruffy handwritten letter from a

bank. The circumstances do not matter, but it is not surprising either that the Secretary

of State or that the court should have been extremely concerned as to the origins of this

letter. To say that to produce such a document necessarily reverses the burden of proof

equally misunderstands the approach which has to be adopted in this court.

8. The firm has given an undertaking as to its future conduct and as to appropriate steps

which it will take to ensure that all those working within it are suitably aware of the

importance to which the court attaches to timeous applications properly made and

properly evidenced. They, along with other firms dealt with today, must write to the

Administrative Court within six weeks explaining the steps they have taken to put that

into effect.

9. The second case with which the court has had to deal, R (Kiran) v Secretary of State for

the Home Department, is even less explicable than the last. This application initially

was for urgent consideration and was sent to the immediates judge with the claimant

seeking urgent interim relief. Turner J dealing with it said this:

"This application betrays a complete lack of understanding of the nature

of an application for urgent consideration. There is no justifiable basis
whatsoever for the request that the court should consider this application
within 48 hours. An out of date form N463 has been filled in as a result
of which no explanation is proffered as to why such urgency applies to
applications relating to a decision reached more than two months ago."

SMITH BERNAL WORDWAVE

10. Quite apart from the use of the wrong form, the more serious failing in this application

was identified when the matter came for consideration on the documents. The judge

observed:

"This is not an appealable immigration decision. It informs the

individual that they are an illegal entrant and they are liable to detention
and removal. It also allows the imposition of reporting restrictions. It is
when an immigration decision is made that there will be a right of appeal
under Section 82(2)(g) of the Nationality, Immigration and Asylum Act
2002. At that point the claimant will be able to advance her explanation,
including that what she said at the screening interview was inaccurately
recorded. Thus the challenge to IS 151A is incompetent."

11. Mr Zeeshan Mian, a solicitor advocate and senior partner in the firm, has offered an

undertaking to ensure that the firm does not get into a similar unwanted situation in

future by providing in-house training to all qualified fee earners, by personally

scrutinising the merits of a claim before it is filed and to take these steps additionally to

those which have already been taken, such as the appointment of a Head of

Immigration Department to review all applications and claims and appointing a

part-time in-house counsel.

12. It is sad to see a firm which has not previously come to adverse attention of the court

appearing before us in these circumstances. We accept the undertaking that Mr Mian

has made. We require him to write to the Administrative Court in six weeks to identify

how all these various measures have been put into effect and the impact of the changes

that have been made.

13. The third case which we have considered is R (Siddique) v Secretary of State for the

Home Department. This case is more serious because the firm, Eden Solicitors, has

previously appeared before a Hamid court. Indeed, on 25 November the firm wrote to

the Administrative Court enclosing certified copies of training certificates to

SMITH BERNAL WORDWAVE

 demonstrate its compliance with its undertaking. Nevertheless, this application for

judicial review was received by the Administrative Court on 12 December. In refusing

permission, the reasons given were:

"The grounds are essentially of what were advanced before the FTT.
Judge Borsada dismissed the case on the grounds that the claimant lacked
credibility. This is a case to which CPR 54.7A applies. The Court will
give permission to proceed only if it considers that there is an arguable
case which has a reasonable prospect of success because both the
decisions of the Upper Tribunal and the First-tier Tribunal are wrong in
law and that either (i) the claim raises an important point of principle or
practice; or (ii) there is some other compelling reason to hear it. No
attempt is made to address CPR 54.7. The claim is an abuse of process
and should never have been filed."

Counsel instructed on behalf of the solicitors has been the first to recognise the validity

of those observations.

14. We have anxiously considered whether the time has now come for that firm to be

referred to the Solicitors Regulation Authority. On their behalf, Miss Broadfoot of

counsel has offered that the firm will not merely follow up on the training for judicial

review generally but will arrange for specific training in immigration law. They are

also intending to review the internal checklist and flow chart and ensure that no

application is made without having been checked by a senior partner. The particular

application was made by a foreign-registered lawyer who is not authorised to

commence judicial review proceedings. That itself is a failure which needs to be

addressed.

15. For the final time, but specifically for the final time, we will accept this undertaking

and require the firm again within six weeks to write to the Administrative Court Office

identifying precisely what steps it has taken to ensure that these failings do not recur.

SMITH BERNAL WORDWAVE

16. The final case before the court is slightly different. In one sense in R (Patel) v

Secretary of State for the Home Department, the solicitors, Messrs Malik & Malik,

present a particularly serious problem given that they have twice before appeared in

Hamid courts. However, the explanation for what is conceded to have been an abusive

application in this case is based upon the dishonesty of an employee who felt pressured

to make the application and to deceive the senior partner into signing the appropriate

cheque to pay the court fee.

17. It is not necessary to enter into the merits of the particular case. The relevant

employee has undergone disciplinary proceedings and been dismissed. He himself has

signed a statement for the court apologising fully and unreservedly and with the highest

degree of shame and embarrassment, not blaming anyone but himself for his actions.

The senior partner of the firm of solicitors also expressed his mortification in having to

appear before the court in these circumstances. We recognise that the unauthorised

actions of a trusted individual are difficult to stop. The firm will have to reflect upon

what the senior partner needs to see before signing cheques on the firm's behalf, and

will doubtless have learnt a salutary lesson in relation to this particular problem.

18. In the circumstances, although reading the papers before seeing this explanation we

were minded to refer this firm to the Solicitors Regulation Authority, we have decided

not to take that step but to accept the apology. Again, the firm will write to the

Administrative Court Office identifying what steps it has taken to improve its

procedures to ensure that this will not happen again. It is almost inconceivable that

Malik & Malik will survive a further referral to a Hamid court.

SMITH BERNAL WORDWAVE

19. We add only this: 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. This judgment will be circulated to all judges

and deputy judges sitting on these applications in the Administrative Court.

20. Finally, for my part I regret that many of these applications have only received

responses either yesterday or today. In future, we expect that any response to an

application to appear before a Hamid court, should there be another one, is filed with

the court at least seven days before the hearing.

21. MR JUSTICE CRANSTON: I agree.

SMITH BERNAL WORDWAVE