Immigration advice and representation by substandard solicitors and other advisers
This article is meant to complement that written by Frances Gibb the Times legal correspondent in his article dated 18th October 2018 entitled dishonesty is undermining asylum, with the sub-heading dodgy immigration solicitors should be held to account says a former judge.
In his article Frances Gibb writes that Sir Ross Cranston, (who was solicitor- general under the former Prime Minister Tony Blair), warns that serious problems still exist with the regulation of legal advice and assistance in the area of immigration and Asylum, and his view is that legal professionals and judges must support this work by reporting instances of unacceptable advice and representation to the appropriate professional regulator, and that although it is not a judicial function, it is thought that such professionals and judges have a responsibility to gather information and utilize it, referring more such cases to the regulatory bodies. Sir Ross said that this needs to be done more systematically.
Who can represent immigration and asylum clients in the UK?
There is only a certain category of persons who can represent immigration and asylum clients in the UK, and thus is pursuant to section 84 of the Immigration and Asylum Act 1999, which limited the various categories as follows: –
- Those registered or exempted by the OISC (Office of the immigration Service Commissioner), at level III; or a person training at level III supervised according to the OISC code of standards.
- Those authorized to provide immigration advice or immigration services by a designated qualifying regulator (the bar Council, the Law Society or Ilex) (authorization under this head extends to representation in England and Wales only.
- Those authorized to practice by designated professional body (faculty of advocates/ the Law Society of Northern Ireland);
- Those authorized or registered by a body equivalent to one of those named above, in an EEA state other than the United Kingdom, providing immigration advice or services in that state, or permitted to do so by virtue of an exemption
- Those within a category of person specified in an order made by the Secretary of State under section 84(4) (d) of the Immigration and Asylum act 1999;
- Those acting on behalf of, or under the supervision of a person who falls within the above categories.
Why are clients particularly in the area of law more vulnerable than others?
It is unfortunate and shameful to note however that even within some of the above categories of legal representation, there is dishonesty and thus in many instances fraud perpetrated on the vulnerable client. Clients particularly in this field of law are vulnerable more than in others ( such as property and commercial clients), in the sense that, in the same way a patient puts their trust, and in many cases their life in the hands of their doctor, clients in many instances fleeing to the UK for fear of persecution and torture in their own countries, and clients here with no status for whatever reason, place their trust and future life in the UK in the hands of their legal advisers. They are also vulnerable in the sense that they will pay usually whatever is asked of them just to have their cases sorted, as they feel they have no other choice. They are also vulnerable because in many instances they will not complain, for their subjective fear that their own legal adviser may report them to the authorities if they do, resulting in their deportation or removal from the UK. Many foreign nationals with irregular and precarious immigration history in the UK think this way, and hence are reluctant to complain.
Preying on the Vulnerable
Immigration, Asylum and human rights work is a specialist area, in the same way that the law as to trademarks, patents and copyrights is a specialized area. There are many solicitors and other legal advisers who regard this area still to be an “untapped” and lucrative are of work from which they can make a good living at the expense of the vulnerable client, whereas in fact they are not specialists in this area of work and at best merely dabble in it, charging clients exorbitant fees. They are no different to a GP as opposed to a specialist heart surgeon carrying out an operation on a heart patient. I need not spell out the catastrophic consequences of such dabbling on the weak and vulnerable.
At times unscrupulous solicitors such as the above category and other legal advisers some falling legitimately in the above category under section 84 of the Immigration and Asylum Act 1999, either to impress their clients in the hope of getting further referrals, or to save on costs (or for a mixture of both reasons), do not instruct specialist counsel for advocacy, but attempt advocacy themselves to the detriment of their client. Some skeleton arguments in the for example produced at the hearing prepared by “dabbling “professionals and others, comprise of a regurgitated list of the immigration rules and cases, not relevant to the appeal at hand, and with no explanation as to how the rules and cases are molded into the appeal question.
At other times, in order to blind the judge with science, bundles will be prepared for the hearing to include irrelevant documentation to “bulk it up”, for which the legal advisers charge the client, on the pretext that substantial work had to be carried out in preparing the hearing bundles.
On numerous occasions, legal representatives, will send to the tribunal hearing centre, bundles for the hearing on the 11th hour which in many instances are not received in time for the judge or the Home Office representative to consider, resulting in many cases in an adjournment to the detriment of the client who would have lost the fees paid to their legal representative for the appeal. It has also been known for trial bundle to be faxed to the hearing centre intermittently, comprising of many hundreds of pages, leaving the tribunal clerks to assimilate them as best as they can to put before the judge. No regard is paid at times to the 2014 tribunal procedure rules and section 8 of the Practice Direction on trial bundles requiring the appellant (by their legal representative) to file and serve bundles on the tribunal and the Home Office at least five clear working days before the full hearing.
Incompetence by solicitors and other legal representatives, risks the judge adjourning the hearing at substantial costs to the appellant client. There is fortunately now the ability for the judge to make a costs order for incompetence and inordinate delay against either the respondent or the appellant, (in practice it would be the appellant’s representative), whose behaviour has been unreasonable, but in reality, such cost costs orders are difficult to enforce, and if successfully enforced, will be done at the County Court level a year or longer at times after the order was made.
There are also with regret, a number of well-known firms of solicitors who pretend they do in-house advocacy either to impress their clients or to save on costs, or for a mixture of both reasons. I say this because if solicitors have to pay barristers for advocacy, they are responsible for the barrister’s fees and will need to collect sufficient funds from their client to cover their own costs and those of the barrister. There are some solicitors who may be good desk lawyers but are not competent on their feet, but who will insist on dabbling in advocacy to the detriment of their client’s case to save on costs and or to impress the client with the hope of further referrals, and to advertise them selves on their website as experts in advocacy work in the field of immigration, asylum and human rights.
The unregulated adviser
Unfortunately, there is yet a further breed of adviser other than the incompetent second rate lawyer. This is the unregulated, unsupervised and unqualified person masquerading as a solicitor / barrister or other qualified individual, and taking full advantage from the vulnerability of their client, charging extortionate fees, and at times unable themselves to professionally articulate when making representations before an immigration judge. Since these individuals are not regulated by any of the professional regulators such as the Bar counsel, the SRA, or the Institute of legal executives, they must be reported if come to notice, to the OISC who will no doubt take action to bring the matter to the attention of the police. Alternatively, a client who has been represented by such an individual may report the matter to the police.
It is a criminal offence for an unqualified person to give immigration advice or to represent a client within the immigration tribunal system. For example, Prince Adewale Adeola was sentenced to 5 months in prison at Woolwich Crown Court on 11 October 2017 after pleading guilty to 11 charges of providing unregulated immigration advice. It was the second time he had illegally given support on immigration matters. On the first occasion he got away with a fine. According to a notice published by the OISC, he was a director of his company and misrepresented the company that he was able to give immigration advice.
Dishonesty as to the Counsel’s fees
Some solicitors and other legal advisers have also been known to be dishonest to their client as to barrister’s fees charged for their appeal, in that sums they have represented to and collected from their client in that regard, have been grossly exaggerated with the consequent result that the said ““professional” has pocked the difference between what was actually agreed and what they represented to their client, was agreed! These are all unlawful acts, and reportable offences to the appropriate regulator. Judges have been known to report firms of solicitors and other advisers to the appropriate regulator if during the course of the appeal untoward behaviour unbecoming of such a professional comes to attention.
At this time of heightened uncertainty with Brexit looming ahead, and the real possibility as a result that immigration tribunal case work will undoubtedly increase, judges I am sure will become more vigilant in reporting gross incompetence and conduct , continuous breaches of the procedure rules, and other discrepancies in the practice that represents the appellant client to the appropriate regulator.