Previous Lawyer ruined case? What can be done?
As a direct access immigration barrister practising in immigration for over 20 years this is a question that I have often been asked. These type of client usually falls into two categories, the first is where the solicitor or barrister has done the best they can with what they have and the second and most troubling is where a lawyer has messed up the case to the extent that the applicant no longer has leave or their leave expired a while ago.
This article is inspired by a request from a viewer of my youtube channel youtube/c/theimmigrationbarrister - I will try to do a video on this tomorrow expanding on the article - but it will give you an idea about a problem that I think affects thousands of people.
What does this mean?
Is there a way round it? Does the previous negligence of the lawyer strengthen any application.
It days long past there was a case Al-Mehdawi going back, it must be 30 years now, that said that even if the lawyers had messed up the case this was not a good enough reason. The justification for this was that there was an old immigration rule it was s.21 of the Immigration Act 1971 that allowed people to make fresh representations to the Secretary of State to re-open the case.
However, I was not aware of this discretionary power ever being used. Indeed it has now been removed from the Immigration Act 1971.
The next case to consider whether or not the poor performance of representatives could assist an Applicant that came to many peoples attention was FP (Iran) [207] EWCA Civ 13 where the Court of Appeal considered what would be the impact if the representatives let the person down, the HO relied on Al Medhawi but the Court concluded rather more in the Appellant's favour at paragraphs 45 - 46:
- It has not been suggested that we have to choose between Al Mehdawi and the CICB case. Rather Mr Drabble submits that Haileis authority in this court for the proposition that Al Mehdawi does not, or does not necessarily, govern asylum cases, and that the CICB case may help to explain why. This seems to me to be correct. It is supported by the decision of this court in R v IAT ex parte Mehta[1976] Imm AR 38 (a student case), where Lord Denning MR, holding that a solicitor's mistake might amount to special circumstances for enlarging time, said:
We never let a party suffer because his solicitors have made a mistake and are a day or two late in giving notice of appeal….All the more so … where [the appellant] would have no remedy against her solicitor for any negligence. If she is out of time for appeal, she will be removed from this country, and it would be of no consolation to her to say that she has a remedy against her solicitor.
This decision was followed in R (Tofik) v IAT [2003] EWCA Civ 1138(an asylum case) where, at §24-5, with the agreement of the other members of the court, I said:
The law has historically regarded client and solicitor as one, at least to the extent that the latter acts as agent for the former. But … a client is not necessarily fixed with her or his solicitors' errors in seeking to oppose removal from the United Kingdom, at least when the client has been in no way responsible for them.
- Accordingly I would hold, contrary to Ms Chan's submission, that there is no general principle of law which fixes a party with the procedural errors of his or her representative. The materiality of this is not that it renders the 2005 Procedure Rules or any part of them ultra vires, since they are not predicated on a contrary assumption: it is that there is no universal surrogacy principle which the rules would have to depart from in order to operate justly.
It is clear that this was a move away from what had happened earlier.
In the case of Mansur [2018] UKUT 274 (IAC) the Upper Tribunal were faced with a case where the previous representatives had lodged a new application while the Applicant had an outstanding appeal rather than withdrawing the appeal as were the client's instructions.
This lead to the FTJ dismissing the appeal essentially saying that the Applicant could not benefit from the earlier error - he was seeking ILR.
The Upper Tribunal in the headnote of Mansur provided the following guidance:
(1) Poor professional immigration advice or other services given to P cannot give P a stronger form of protected private or family life than P would otherwise have.
(2) The correct way of approaching the matter is to ask whether the poor advice etc that P has received constitutes a reason to qualify the weight to be placed on the public interest in maintaining firm and effective immigration control.
(3) It will be only in a rare case that an adviser's failings will constitute such a reason. The weight that would otherwise need to be given to that interest is not to be reduced just because there happen to be immigration advisers who offer poor advice and other services. Consequently, a person who takes such advice will normally have to live with the consequences.
(4) A blatant failure by an immigration adviser to follow P's instructions, as found by the relevant professional regulator, which led directly to P's application for leave being invalid when it would otherwise have been likely to have been granted, can, however, amount to such a rare case.
This is particular way of looking at the failures of the previous representatives - the Appellant succeeded in his appeal because he had provided not only a general gripe against his lawyers but a detailed finding by the OISC in his favour.
Where does this leave migrants who have had poor immigration advice.
Firstly, I would advise anyone with poor immigration advice to contact a good representative or feel free to contact me.
Then for any future application to have any prospect of relying on the case of Mansur the Applicant must make a proper complaint alleging in detail what the previous lawyer had done wrong. It is crucial that this is does as thoroughly as possible. A mere assertion that the previous representatives will not, in my opinion do, there will be need to be good evidence to show that the previous representatives were a) wrong and b) sone action, the more the better, is or has been taken against them.
Mansur is a rare breath of fresh air, in my view, of looking at what happens in the real world of immigration law. There are a great number of rogue lawyers some not even lawyers that encourage people to make hopeless applications without advising the client that they are wasting their time. I have come across people who had leave under the immigration rules and who are persuaded to make a hopeless regulation 8 case under EU law that is bound to fail and then perhaps they get leave or perhaps they never again enjoy leave but come to 10 years residence and try to argue that their ongoing applications mean that they qualify. As I have mentioned, they do not have leave and are doomed to fail. As to an appeal based upon the previous errors given that the individual may not enjoy leave and may well have a large gap in their leave it will be necessary to show that this was not their fault.
Mansur is a case that ought to be read closely. It is not a get out of jail free pass just because your lawyers were not very good - it is a case that says that a lot more is needed.
I would therefore advise that anyone who has had problems contacts a reputable lawyer or contacts me on 020 7 242 3488 or clerks@imperiumchambers for advice. I will happily arrange a conference to go through your case and see what options you have.
Please do not hesitate to contact me if I can help further.
Paul Turner is a highly regarded direct access immigration barrister with over 20 years experience in this field of law and is licensed to provide advice to the public and can litigate on your behalf if required. He is the head and founder of Imperium Chambers a boutique set specialising in immigration, family and complex matters relating to migration nationality and data protection.