B & Anor, R (on the application of) v Secretary Of State For The Home Department & Anor (Rev 1)

Advocates and litigators owe an independent and paramount duty to the court. They must advance only arguments that can properly be made and must possess, or obtain, sufficient competence in the relevant area of law. A lawyer must not present manifestly nonsensical arguments, whether instructed to do so by a client or otherwise. In asylum and immigration work, the court’s urgent and generous service increases the importance of competent preparation and accurate legal submissions. Where professional failings are admitted, accompanied by proper apologies and credible assurances of future competence and supervision, the court may refrain from referring the lawyers to regulatory authorities. That approach does not diminish the court’s warning that future conduct of the same kind may attract regulatory action.

Two judicial review matters, referred to as B and J, came before the Divisional Court. In B, immigration and Article 8 arguments had already been rejected by the First-tier Tribunal and subsequent applications had been dismissed as totally without merit, yet substantially the same arguments were renewed. In J, an application challenged an out-of-time and exhausted immigration matter, while failing to address the Upper Tribunal’s refusal of permission to appeal.

The court considered whether the conduct reflected deliberate advancement of hopeless arguments or professional incompetence. Both cases were found to involve manifest incompetence. The central issue was how the court should address lawyers who fail in their duty to the court and present legally untenable immigration applications.

1. Duty to the court. Advocates and litigators owe the court an independent duty to act in the interests of justice. That duty is paramount and overrides inconsistent obligations to the client. The duty is reflected in Legal Services Act 2007, section 188(2) and (3), together with the professional conduct obligations referred to in section 176(1).
2. Competence. Lawyers undertaking asylum or immigration work must have proper knowledge of the law and must put forward competent arguments. It is a breach of duty to advance arguments that are manifestly nonsensical or demonstrate obvious ignorance of the law. A lawyer cannot justify such conduct by saying that the client required the argument to be made.
3. B. The renewed contention that engagement of Article 8 made removal inappropriate was legally untenable. Engagement of Article 8 does not itself make removal disproportionate or otherwise prevent removal. The earlier decision had addressed the relevant issues, and the subsequent judicial review application and renewal constituted a serious failure of competence.
4. J. The judicial review application was hopelessly out of time and sought to challenge a decision for which an appeal had been pursued and exhausted. Any possible challenge to the Upper Tribunal’s refusal of permission would have had to proceed on the narrow principles identified in Cart v the Upper Tribunal [2011] UKSC 28. The application failed even to advance grounds directed to that decision.
5. Disposition concerning the lawyers. The court accepted the apologies, undertakings and assurances concerning improved knowledge, consultation, supervision and future handling of applications. It therefore took no further action and did not refer the solicitors, solicitor-advocate or counsel to the relevant regulatory authorities. The court made clear that similar conduct in future would lead it to act.

Not an appeal from a lower court in the present proceedings. The judgment records earlier immigration decisions in the two cases, including decisions of the First-tier Tribunal, refusals of permission to appeal and earlier judicial review decisions.