April 23, 2019

Disciplinary hearings in the High Court

In the short but landmark judgment of R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), the High Court affirmed that it has the power to oversee the conduct of lawyers in immigration cases. Judges have regularly used the disciplinary process that has evolved out of the Hamid case to scrutinise the work of lawyers and refer some to the regulator for formal investigation. This post traces the evolution and formalisation of what is now an established feature of the UK immigration system.

The Hamid jurisdiction

Hamid was decided against the backdrop of what the courts considered a flood of last-minute applications to stay removal from the UK. Many of these applications, the High Court charged, were deliberately filed at the end of the last working day before a removal flight and were totally without merit — merely a device to prevent a migrant’s removal in the short term.

An exasperated Sir John Thomas declared:

These late, 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. 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.

This “vigorous action” tends to be a Divisional Court hearing in which the lawyer is asked to explain themselves. In R (Butt) v SSHD [2014] EWHC 264 (Admin), the practitioners involved were instructed to write to the High Court within six weeks of the hearing to show how they were putting their practice in order. In Awuku (No 2) v SSHD [2012] EWHC 3690 (Admin), the firms were not told to take remedial action, but were named and shamed. And in R (B & J) v SSHD [2012] EWHC 3770 (Admin), the court accepted the firms’ apologies and did not name them.

The High Court says that it has the power to police lawyers in this way because of the “inherent jurisdiction to govern its own procedure”. The Upper Tribunal — which unlike the High Court is an all-UK body — claimed the same authority in R (Shrestha) v SSHD (Hamid jurisdiction: nature and purposes) [2018] UKUT 242 (IAC).

This power has become known as the Hamid jurisdiction, and the procedure a Hamid hearing, after Sir John Thomas’s original warning shot.

Evolution of the Hamid procedure

Where the misconduct is egregious, the explanations insufficient and/or the firm has form, the Divisional Court or Upper Tribunal will formally refer the matter to the Solicitors Regulation Authority. This is what happened in Shrestha, in R (Akram) v SSHD [2015] EWHC 1359 (Admin) and in what is now the leading case on the Hamid jurisdiction, R (Sathivel) v SSHD [2018] EWHC 913 (Admin).

The Sathivel judgment describes the procedure as follows:

When a Judge concludes that a lawyer has acted improperly that may be recorded in a court order. The papers are then referred to the High Court Judge having responsibility for this jurisdiction [more on this below]. A “Show Cause” letter may then be sent to the lawyers concerned who are invited to respond addressing the matters of concern raised in the Show Cause letter. If the Judge in charge considers the response to be inadequate the case may be referred to the Divisional Court. In the event that the Court finds that the conduct in question falls below proper standards the Court can admonish a practitioner. Alternatively, the Court can refer the file to the relevant regulatory authority, usually the Solicitors Regulation Authority (“SRA”), for further investigation and if appropriate the imposition of sanctions.

It concluded by modifying the procedure in future cases:

(iii) In future the Court will not necessarily refer the matter to a Divisional Court before deciding to pass the file to the SRA as a complaint. A complaint might be made to the SRA upon receipt of the response to the Show Cause letter, if that is considered to be an appropriate course to adopt.

(iv) The Court will in future consider referring a case to the SRA on the first occasion that the lawyer falls below the relevant standards.

Indeed, in the subsequent case of Jetly v Secretary of State for the Home Department [2019] EWHC 204 (Admin), Mrs Justice Andrews did not convene a Divisional Court before making an SRA reference. Nor is there explicit reference to a Show Cause letter — although there had been repeated failures to comply with the judge’s instructions throughout the case.

Jetly also shows that misconduct other than hopeless/last minute judicial review applications can trigger the Hamid jurisdiction. The nationality litigation in question was shambolic, but not tactically so. The judgment confirms that:

Although concerns about the behaviour of legal representatives instructed in immigration cases most often arise in the context of last-minute attempts to resist removal from the UK, the Hamid jurisdiction is not confined to that situation, nor is it confined to the situation in which the underlying claim is utterly without merit.

The Upper Tribunal broke further new ground in R (Hoxha & Ors) v SSHD [2019] UKUT 124 (IAC). In this case, for what appears to be the first time, the Office of the Immigration Services Commissioner rather than the SRA was the regulator called in. The lawyer involved was an OISC-regulated adviser rather than a solicitor, but the process operated in the same way.

The regulatory investigations, in turn, can lead to disciplinary proceedings. In 2017, solicitor Vay Sui Ip was struck off by order of the Solicitors Disciplinary Tribunal following a Hamid referral. The referral was reported as Re Sandbrook Solicitors [2015] EWHC 2473 (Admin).

The Hamid judge

Mr Justice Green was on the bench in many of the cases just mentioned. We know now that this was no coincidence: the Hamid jurisdiction is sufficiently formalised that there is a “Hamid judge” in charge of the whole business. Since October 2018 this has been Andrews J (which is why she took over the Jetly case just mentioned). Before that it was Mr Justice Green, since promoted to the Court of Appeal.

The role of the Hamid judge is to review files sent her way by judges who consider that a lawyer has fallen far below adequate standards and to issue the Show Cause letter. If the response to this is not considered good enough, the Hamid judge can then convene a Hamid hearing.

The Judicial Office told us:

The job of the judge responsible for this area comprises: keeping colleagues informed of developments in the area in particular by reporting at each start of term High Court meeting; reviewing cases referred by other judges; liaising with the ACO staff and with the President of UTIAC; deciding whether to refer a case to the Divisional Court or make an immediate reference/complaint to the relevant regulatory body; sitting on Divisional Court cases on references.

It added that “the issues arising are interesting and constitutionally important. It deals with the inherent jurisdiction of the Court to regulate its own procedure and involves the working out of the duties of legal professionals and the standards to be expected from those appearing before the court”.

Not just for immigration lawyers

Most, perhaps all, Hamid cases so far have been about immigration. Asked whether the Hamid jurisdiction can be exercised in any case or is reserved for immigration and asylum only, the Judicial Office told us that “in principle, the jurisdiction applies across the entirety of the Court system”.

This is a recent development, recorded in the November 2018 minutes of the Administrative Court user group:

The Hamid Jurisdiction traditionally dealt with immigration cases but the PQBD [President of the Queen’s Bench Division, Sir Brian Leveson] has directed that the jurisdiction will now be extended to all types of cases that are dealt with at the Administrative Court Office.

The minutes also record the court’s increasing concern about urgent judicial review applications being filed where the issue is not, in fact, urgent. Court officials has stressed that this can be a Hamid matter. Again, I understand that this concern is not limited to immigration and asylum cases.

We may, therefore, expect that the next major development in the Hamid jurisdiction will be a lawyer in a different area of practice experiencing its rigours.

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