Deepa Adhikari Shrestha & Ors, R (on the application of) v The Secretary of State for the Home Department

The Upper Tribunal’s Hamid jurisdiction forms part of its inherent power to regulate its own procedure and to ensure proper professional conduct by lawyers. It may be exercised where a solicitor systematically brings judicial review claims that are hopeless, late, directed at no reviewable decision, or inadequately particularised.

Pre-action protocol responses ordinarily do not constitute separate decisions capable of judicial review. Immigration judicial review applications must be prompt and ordinarily received within three months of the relevant decision, action or omission. An appeal from the Upper Tribunal lies only on a point of law. Persistent failures of this kind may properly be referred to the professional regulator.

The Tribunal considered the conduct of Harrow Solicitors in immigration judicial review proceedings. Its records showed that, of 36 applications brought by the firm since January 2017, eleven had been certified totally without merit, nine had not been admitted, and another had received severe criticism.

The Tribunal identified recurring defects. Claims frequently treated a Home Office response to a pre-action protocol letter as the decision under challenge. They were often late, inadequately particularised, and unsupported by engagement with the relevant statutory and human-rights framework. Applications for permission to appeal reproduced the original judicial review grounds without addressing an error of law by the Tribunal.

Mr Ali accepted responsibility, stated that he had suspended immigration judicial review work, and proposed to obtain counsel’s advice before filing future claims. The central issue was whether the firm’s conduct required a regulatory referral under the Tribunal’s Hamid jurisdiction.

1. Referral ordered. The Tribunal decided to refer Harrow Solicitors and the relevant files to the Solicitors Regulation Authority for a full investigation. The extent and repetition of the sub-standard work made this a regulatory matter, notwithstanding Mr Ali’s apology and his proposal to obtain counsel’s advice in future.

2. The Tribunal has inherent jurisdiction, shared with the High Court, to govern its own procedure and to ensure that lawyers meet proper professional standards. That jurisdiction protects the administration of justice and also protects the standing of careful and competent immigration practitioners.

3. A systematic practice of bringing totally without merit judicial review claims is inconsistent with a solicitor’s duties of integrity, proper administration of justice, and maintenance of public trust. Such claims consume scarce judicial resources, delay potentially meritorious cases, impose costs on applicants, and may create unjustified expectations.

4. A response to a pre-action protocol letter normally only defends the underlying Home Office position. Without more, it is not a discrete decision capable of separate challenge by judicial review. A competent immigration practitioner should recognise that distinction.

5. Under rule 28(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008, an immigration judicial review application must be made promptly and received no later than three months after the relevant decision, action, or omission. A late claim must explain the delay and seek an extension of time. Repeatedly presenting the later protocol response as the challenged decision was therefore especially concerning.

6. By section 13 of the Tribunals, Courts, and Enforcement Act 2007, an appeal to the Court of Appeal lies only on a point of law arising from an Upper Tribunal decision. Refiling the original grounds after a wholly without merit decision, without engaging with the Tribunal’s reasoning, was an abuse of process.

7. The Tribunal adopted the Divisional Court’s observation that its views did not bind the SRA, which remained independent and was to reach its own conclusions under its rules and statutory obligations.

not stated in the judgment.