Hamid Principles in the Upper Tribunal

Alistair Mills discusses the Upper Tribunal's approach to inadequate representation and wasted costs in immigration judicial reviews

Wasted costs

In R (Hamid) v SSHD [2012] EWHC 3070 (Admin), the Divisional Court gave a warning to the representatives of claimants in immigration judicial reviews. Inadequate representation, which is wasteful of costs in terms of cases being hopeless, misleading or brought far too late, would not be tolerated. In extreme cases, representatives faced being reported to the appropriate regulator. Hamid was not a one-off in the Divisional Court: other lawyers have been warned in Awuku (No 2) v SSHD [2012] EWHC 3690 (Admin), B&J v SSHD [2012] EWHC 3770 (Admin), and R (Butt) v SSHD [2014] EWHC 264 (Admin).

Since 21 August 2013, the majority of classes of immigration judicial reviews are heard in the Upper Tribunal rather than the High Court. However, Mr Justice Green and Judge Gill made it clear in Okondu and Abdussalam v SSHD (wasted costs; SRA referrals; Hamid) IJR [2014] UKUT 377 (IAC) that the same approach will be taken in the Upper Tribunal as was taken in the Divisional Court. The Upper Tribunal also considered the issue of wasted costs orders.

Abdussalam

Mr Abdussalam arrived in the UK with lawful leave, but overstayed. He applied for leave to remain on the basis of his medical condition. This application was rejected by the secretary of state. Mr Abdussalam brought judicial review of this refusal. The grounds included that he was suicidal and psychotic.

The medical evidence in no way made out such a claim. In fact, it specifically stated that Mr Abdussalam did not have suicidal thoughts or psychotic symptoms. After a direction by the Upper Tribunal that the parties give submissions regarding wasted costs, the applicant sought to withdraw the proceedings. The Upper Tribunal refused him permission to do so.

Regarding the secretary of state's application for wasted costs, the question was raised as to whether such an application had in fact been made, but the tribunal reached the conclusion that there had been an application. The fact that Mr Abdussalam had applied to withdraw the claim did not prevent the application for wasted costs continuing. In the circumstances, the Upper Tribunal made the order for wasted costs.

The Upper Tribunal also decided to refer Mr Abdussalam's representatives to the SRA, taking the view that there had not been full and frank disclosure in this case. The tribunal was swayed by evidence that there was a wider pattern of similar conduct on the part of the firm in question. The Upper Tribunal was at pains to make clear that its decision to refer the matter to the SRA was unaffected by the firm's own view as to whether such a reference was necessary.

Okondu

Mr Okondu arrived in the UK with a visa as a visitor, but overstayed and was convicted of offences relating to abuse of identity documents and seeking to obtain leave to enter the UK on an illegal basis. The secretary of state decided to remove Mr Okondu.

Mr Okondu applied for judicial review of this decision. The application was described by the Upper Tribunal as "almost on any sensible reading, an extraordinary document". The first remedy sought was "Order that I must be removed from the UK". The statement of facts and grounds did not, in fact, refer to any facts, instead simply stating abstract grounds under headings such as "Illegality" and "Irrationality". The claim was unparticularised, and there was no reference to the applicant's offending. The same was true of the witness statement.

Despite it appearing that the judicial review challenged the lack of a right of appeal, the secretary of state pointed out that the decision did in fact give rise to an incountry right of appeal (which had expired).

Mr Okondu's representatives were aware of the application for wasted costs, but did not attend the hearing before the Upper Tribunal. There was subsequently an explanation and apology. The tribunal accepted that the facts of the case may have been a one-off problem, and so did not refer the representatives to the SRA, but did make a wasted costs order. The representatives had failed to make adequate enquiries concerning the facts before lodging the claim, and the application should have been corrected once those enquiries had been made. The duty to act reasonably and professionally was a continuing duty.

General guidance

The following points arise from the Upper Tribunal's determination:

• The decision under challenge should be annexed to, and addressed in, any application for judicial review;

• An application should not be maintained as manifestly complete when it is so incomplete that it cannot be adjudicated upon;

• The "statement of truth is not mere flummery";

• In urgent cases, if there are defects in an application (by reason of the urgency), this does not excuse a failure to correct the defects later;

• The fact that an application fails, orally and on paper, is not in and of itself a reason for the tribunal to impose a sanction. This applies even in weak cases. But there is a difference between arguing a weak case and advancing an unarguable case in a manner which is professionally improper;

• The representatives of the winning party can be subject to a wasted costs order;

• The Upper Tribunal has endorsed the comments of the Divisional Court in Hamid, at paragraphs 6-11.

Alistair Mills is a barrister practising from Landmark Chambers and an external lecturer in law at the University of Cambridge

www.landmarkchambers.co.uk