The Ethical Impact of the ‘Cowboys’ of the Immigration ‘Wild West’
By Naga Kandiah and Kimberley Renfrew
Published on October 1, 2018
Those in immigration practice will be familiar with the dressing-down of unscrupulous immigration solicitors by the courts for failure to comply with the basic ethical principles of legal practice. Just this year, we have seen a number of referrals to the Solicitors Regulation Authority (SRA) and subsequent interventions, affecting a huge number of clients.
The advancement of cases with little or no merit by a number of immigration firms has become an issue which diligent practitioners have become alert to. The situation is deeply concerning for those who take their ethical obligations seriously, for a number of reasons.
In an atmosphere of heightened scrutiny, there is a greater amount of pressure on solicitors to ensure that decisions to lodge injunctions, applications for judicial review or an appeal to the Court of Appeal, are taken with the utmost diligence.
The challenge of reconciling the duty to promote a client’s best interests, with one’s duties to the court, is something that immigration practitioners should be particularly attentive to. Not only to preserve their own professional integrity but to maintain the integrity of the system and the reputation of the profession. Clients’ expectations must always be managed carefully. This in itself is not straightforward, in a field where the impact of decisions can be life-altering.
But in a sector where some representatives do not take their ethical obligations seriously, the consequent erosion of the profession’s integrity becomes increasingly frustrating for those who go to great lengths to serve their clients well.
Helping those clients who have been represented poorly becomes a salvage mission. An example is an individual who seeks advice following the closure of their previous representative’s practice. The contents of their file is an article 8 application, pursued by their solicitors despite the client falling short of a number of requirements. On inspection, you see that the application has been refused without an in-country right of appeal, at which point the representative has lodged a judicial review application, followed by a renewal and then an appeal to the Court of Appeal.
Many of these applications are accompanied by generic grounds, unrelated to the personal circumstances of the client, perhaps containing submissions which are legally nonsensical or littered with grammatical errors. Sometimes we see several clients where the same grounds have been used in each case, in a “copy-paste” fashion. This causes genuine embarrassment to those of us who painstakingly take hours to ensure that our client’s applications are as strong as possible and take time to consult experienced Counsel on the merits of pursuing litigation.
Poor levels of preparation have cost the client thousands of pounds and years in limbo, for the only outcome to be that their credibility has been eroded, and their immigration history tarnished with failed applications.
It is not just entire firms where poor conduct can be observed. We have one example of a case where a representative from a leading legal-aid firm pursued an application to the ECHR, on the back of a failed asylum claim which originally had little prospect of succeeding. The application to the ECHR was entirely without merit and rightly was refused. Although not affecting the client’s personal finances, this is an unnecessary drain on taxpayer money.
After careful discussion, it may emerge that the client has genuine grounds to make a different type of application, but by this point, it becomes much more difficult to pursue because of credibility issues. It may be the case that the client should have been advised that their only viable option as an overstayer was to apply for re-entry.
Alternatively, it may be by this point that the length of time the client has spent in the country means that the best interests of their children now weigh in favor of the family remaining. This was clearly not the intended objective of the policy, and years of time-buying as a general tactic has rightly received criticism by the courts.
Not only is the impact on clients deplorable, but the consequent culture of disbelief and skepticism by the courts has a resultant impact on those people who are well-represented. Small high-street firms are the cornerstone of immigration practice, and diligent representatives are having to meet higher hurdles, and produce a greater amount of evidence, to prove their clients’ cases, because the system is awash with poor representation.
We absolutely welcome the intervention by the courts in making referrals to weed-out this trend, but whether it provides enough discouragement to those practitioners who are solely geared towards profiteering, with no regard to their client’s welfare or their duty to uphold the administration of justice is another question. If a representative is intent on exploiting the system for financial gain and has no regard to their duty to the court, will judicial warnings have any impact on their future conduct?
Questions remain as to how the SRA can reduce the number of firms falling foul of regulatory standards. The abolishment of the mandatory 16 hours of CPD by the SRA in 2016 may have led to some firms failing to offer a suitable level of supervision and training to their employees since the SRA does not actively enforce the current regulations on continuous learning.
The greater potential for vulnerable clients in the immigration sector means that complaints mechanisms need to be adapted to ensure that those who are falling below the required standard are investigated earlier. Accessibility to services such as the legal ombudsman can be difficult for those whose first language is not English. Signposting at the point of engagement needs to be done effectively so that clients are aware of their rights.
The SRA is attentive to the risk factors inherent in immigration work, but a review of how these principles are being regulated in private-practice is needed, to prevent this trend of poor conduct from persisting.
Mr Kandiah specializes in immigration, crime, asylum, and human rights law, with expertise across a wide range of immigration work including assisting detained clients, working with war crime witnesses and victims of torture, and specializing in human rights cases and judicial review applications. Mr Kandiah also regularly represents vulnerable clients with severe mental or physical health issues, having successfully acted for clients in complex asylum, deportation, and entry clearance appeals.
Kim has a background in Human Rights and Women’s Rights work, notably having co-written a paper relating to Forced Marriage which was presented in the House of Lords in 2013. She additionally has expertise in EU law, owing to her master’s in European Law from Université de Rennes I. She completed her undergraduate degree at the University of Exeter, where she was actively involved in mooting and pro-bono work.
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