(Note: Much of this material was published in Tottel’s Immigration Asylum and Nationality Law Vol 19 No 3 2005 as part of an article on professional ethics in immigration.)
How ethical problems arise
I was a few years into Immigration before I thought much about the ethics of immigration work. The British Immigration system seemed irrational, and most of my work was with decent people who were being savaged by a malfunctioning machine. I was ethically content with the work I and my colleagues did.
Over time ethical problems arose. I was perpetually taken by surprise because the problems arose without warning.
Lawyer ethics and immigration
Many of the ethical dilemmas we face as Immigration lawyers are part of the general experience of being a lawyer. Very few of our dilemmas are unique to the field of Immigration.
First – Do No Harm
Let us start with Hippocrates[1]’ adage “First, do no harm”
· Do not lose original documents or the only copy of something.
· If you send a video or anything else to the Home Office make sure you have kept a copy in case they lose it. Send the copy instead whenever you can.
· Always list your enclosures. Use a schedule if necessary.
· Cast a critical eye on all documentation before submitting it. Is there really a “Lahore Cattering College”? What was the sequence of events by which a stamp for indefinite leave got onto that passport? The earlier passport is lost? How inconvenient! If this employer is not known to you, look it up in the telephone book. With this level of savings, was the client entitled to Legal Help on the date the form was signed?
· Have the photographs of torture injuries taken and the medical examination done at the earliest possible opportunity so the evidence does not fade.
· Always use recorded delivery for correspondence with the Home Office.
· Do not miss deadlines.
· Have a well publicised emergency contact number available for all clients. Make sure you have adequate manning arrangements.
· Do not take on more work than you can handle well.
· Always read over the statement to the client in his or her own language.
· Check in what language the client was interviewed –is it his/her mother tongue?
· Prepare the chronology early rather than late. It may expose gaps in the client’s story.
· If possible, be clear your case meets all the criteria before contacting the Home Office.
· Do not damage your client’s case by your inadequate preparation of it.
· Brief Counsel in good time with a well constructed bundle and a brief that does not assume Counsel is clairvoyant. Do not leave booking an advocate to the last minute.
Legal Aid
Every Immigration solicitor can make valid criticisms of the Legal Services Commission (LSC). Whilst you choose to work with the LSC its failings do not excuse you from doing your job as a professional, whether you are ultimately paid or not. This was always the case but your financial risk is now made sharper by the rules relating to payment for appeals and delays in processing applications for Emergency Legal Aid Certificates.
International Code of Ethics of the International Bar Association
“17. Lawyers shall never forget that they should put first not their right to compensation for their services, but the interests of their clients and the exigencies of the administration of justice.
The lawyer’s right to ask for a deposit or to demand payment of out of pocket expenses and commitments, failing payment of which they may withdraw from the case or refuse to handle it, should never be exercised at a moment at which the client may be unable to find other assistance in time to prevent irreparable damage being done.”
Legal aid difficulties are not an acceptable excuse for lodging an appeal or judicial review application out of time. The court will not extend time and you have been negligent! Although there is a case[2] where time to issue Judicial Review proceedings was extended because of difficulty in obtaining a Legal Aid Certificate, it is extremely unlikely that that precedent would be followed for your immigration or asylum client. It turned on its exact facts.
Warn the client well in advance
If you do legal aid work, ask your employer for written guidance about what to do when the Legal Services Commission is unhelpful. Will your firm risk money or not? If not, then you should explain the situation to clients at the outset, rather than appearing to dump them at the last minute or to extort money at the last minute. The “Guidelines for immigration practitioners – practice information” are clear – and mandatory.
“1. Solicitors are expected to maintain the highest traditions of professional service in the conduct of activities as advisers and representatives in the field of immigration, nationality and asylum law and practice related matters. In particular”
“(b) They should at all times show sensitivity to the particularly vulnerable position of those seeking immigration advice. Practitioners should pay due regard to the related difficulties faced by such a client, and should ensure that the client fully understands the implications for his or her position of any decision or proposed course of action, making full use of an appropriate interpreter, as necessary”
This guidance was issued before legal aid was made available for immigration and asylum appeal hearings. The guidance stresses that practitioners should ensure that the client is not faced with unexpected demands for immediate payment of relatively large sums at very short notice. One way to deal with this is to put a standard paragraph into your client care letter explaining the difficulties of working with the LSC and giving warning that you might have to terminate their legal aid and charge them privately at certain key points. If you give a scale of your likely charges and an explanation of the times at which this event might happen, you probably meet the guidance. If your legal aid appeal is running when your immigration or asylum appeal deadline is very close you or your employer will have to make a policy decision about whether to do legal aid work without certainty of payment. At any one time you and your client have to be absolutely clear whether this is a legal aid case or a private client case. Any attempt to fudge that question is a breach of the Solicitor’s Costs Information and Client Care Code Practice Rule 13.
Do not steal from the taxpayer
I have reviewed files from firms where perusal time after the first hour appears to operate in multiples of 60 minutes, and the advocates appear to spend an inordinate amount of time perusing the papers in cases very similar to many cases from that country they have recently taken to court. Whatever one thinks of LSC payment procedures they do not justify you – a solicitor – charging for hours of work you have not done. Even if the Legal Services Commission auditors don’t catch it, it is still dishonest and your action is a criminal offence.
If you can’t do a proper job as a legal aid solicitor, or in the alternative you cannot make an honest living at it, what are the implications of that statement for you personally and for your firm? Do you wait for disaster to strike or do you make an orderly withdrawal from legal aid? What is best for your clients?
Who is the client? The reluctant fiancée
One would assume that the person who comes to your office and pays the money is the client. It isn’t that simple! Let us suppose that your long established client (C) brings with him his daughter (D), who wishes to bring to the UK her recently acquired fiancé (F). Many solicitors don’t perceive a problem, and will open a file in the name of C, D, or F. Often C is paying, D is giving instructions, and F communicates through C or D.
The application is in strict legal theory made by F a foreigner whom you have not met and have no contact with. He may well know that he has a solicitor in England but very often does not know the name of the firm. Arguably he is your client. If asked by the Entry Clearance Officer “Who is your solicitor?” he would say that you are his solicitor. Does that make him your client? If he is not your client, then by what right are you involved in his case?
International Code of Ethics of the International Bar Association
Rules
“9. A lawyer should never consent to handle a case unless:
(a) the client gives direct instructions, or
…..
(c) instructions are given in any other manner permissible under the relevant local rules or regulations”
“13. Lawyers should never represent conflicting interests in litigation. In non-litigation matters lawyers should do so only after having disclosed all conflicts or possible conflicts of interest to all parties concerned and only with their consent”
If F is the client, you should be sending him the Rule 15 client care letter and obtaining his written authority for D to give instructions on his behalf – in his own language of course.
Arguably C is the real client. He or his wife arranged the marriage, he chose the solicitor, and he is paying for everything.
Where does that leave D? Is she F’s agent? Is she C’s agent? Is D the real client because it is her proposed marriage, and the application is based on her intention to marry and then cohabit with F?
What happens when D tells you that she was forced into the engagement and does not want a visa for F? She wants to buy time to persuade her parents to let her break the engagement or time to prepare to run away. She wants to finish her degree or she hopes F will get frustrated and break off the engagement. What she is clear on is that she wants her reluctance kept confidential from F and C.
Where should client confidentiality be in this? What about the need to inform the client of any material facts? Suddenly the importance of “Who is the client” becomes evident. If at the outset you had made it clear that in the event of a conflict you would side with D, and you opened the file in D’s name, your position would be easier than if you had not made that clear or had opened the file in the name of F or C. You are still not in the clear, because you did not disclose to the other parties when a conflict did arise. From that moment you may also have a civil liability to C and F.
F’s civil case at first sight is weak because an essential element of his immigration case, the wish of D to marry him, was missing. On the other hand, it is his case and you have held out to him through C at least that you are trying to progress his case. If in fact you have been conspiring with D to sabotage F’s case, you are now in an impossible position. If you conceal information from F you may be liable for his economic losses and for general damages.
C is spending money on booking wedding halls, buying clothing and jewellery to clothe two families, and spending a lot of money on telephone calls and travel. He is possibly negotiating land deals in his country of origin on the assumption that the two families are to be joined. You are in possession of material information which you are concealing from him. These expenditures from the moment the conflict arose may become your liability.
If asked, he would have said you were his solicitor and friend!
If you allow a person to believe you are acting for him or in his case or in his interest but actually you are conspiring with D against him that is not just a conflict of interest but is actively dishonest. The Courts will have no sympathy and nor will any professional body.
The fact that D is in difficulties is deeply unfortunate. However these difficulties are not of your making and there is no professional obligation for you to put yourself into an impossible situation. For you to jump in and to intensify the potential financial and other damage, out of sheer pity for D, is professionally improper.
If it is your normal course of conduct to help D, you or your organisation could also be liable for exemplary damages. Do you know if your organisation’s insurance policy covers you for exemplary damages?
The only way forward – which is still difficult- is to write to F and C when you first take instructions and before any conflict has arisen. Explain that the potential for these situations can arise –has not arisen in this case- but for the avoidance of doubt you regard D as your client. You explain that F and C are not clients or co-clients. You are covering yourself professionally and legally against the roughly 1 in 50 chance (based on my experience as an immigration solicitor) that D will at some stage change her instructions. Even this may not protect you. If F is not your client, why are you meddling in his case?
White v. Jones
The House of Lords case of White v. Jones[3] [1] involved a solicitor who had procrastinated in preparing a will. The client died before it was prepared. Was the solicitor liable to the people who would have been beneficiaries but for his negligence? Was it tort? Was it contract? Should the German concept of “Drittschadensliquidation” (transfer of pecuniary loss) enter British law? By a narrow majority the House of Lords held the solicitor liable in tort to the proposed beneficiaries. Anyone who reads the judgements can be quite sure that an immigration solicitor who allowed himself to get into a conflict of interest situation, and stayed with it, would be found civilly liable in tort and in contract.
The information problem
The introductory note to Rule 15 hits the nail on the head.
“Has one of the parties given the solicitor a piece of information on a “confidential” basis that would affect the advice given to other clients, if the solicitor could disclose it?
If these factors apply, a conflict of interest has arisen.”
In Rule 16.06.08 the Rules look at the situation where a solicitor receives information which he is not allowed to share. “Should that situation arise, however, the solicitor will be faced with a conflict of interests and must cease to act“ for one side and possibly for both. Obviously if you cease to act for one side you must tell them you have ceased to act!
The American Law Institute is also unsympathetic
“Such circumstances create a conflict of interest among the co-clients…The lawyer cannot continue in the representation without compromising either his duty of communication to the affected co-client or the expectation of confidentiality on the part of the communicating co-client. Moreover, continuing the joint representation may mislead the affected client or otherwise involve the lawyer in assisting the communicating client in a breach of fiduciary duty or other misconduct. Accordingly the lawyer is required to withdraw unless the communicating client can be persuaded to permit sharing of the information”
The only way out of this is to avoid creating a co-client situation. Always receive the money from D, and explain to F and C in writing (don’t forget to write to F in his own language) that they are not in a client relationship before any question of a conflict arises. Even then, you are in a potentially difficult situation.
With Legal Aid it is more complicated!
Where the client is on Legal Help you also have a set of responsibilities to the Legal Services Commission, because you are spending public money on an application or legal case you are actively trying to lose. The answer may be to close the Legal Help form and work pro bono.
DNA information and issues
Practise Rule 13.06.5 “Solicitors should normally explain to clients the effect of important and relevant documents.”
It sometimes happens that a DNA test result comes through with potentially disastrous implications. Let us suppose your client is a Pathan from the North West Frontier Province of Pakistan. From your conversations with him it is clear that he follows the norms of that society. Adultery by a wife is customarily punished by death, to the general approval of society. The Pakistan police will not normally interfere in such a killing, and the courts are unlikely to convict. A woman who is raped is normally deemed to have dishonoured the family and may be murdered. If she reports the rape the police will do nothing constructive even if she is able to name the rapist. There are many cases each year where a woman reporting rape is then raped by the Pakistan police. Women who are raped often say nothing to anyone, to avoid making their situation worse.
When the DNA report arrives, it shows that all three children have the same mother and two have your client as father. The middle child is clearly not his.
Your client does not read English well and does not attempt to read the DNA test result. It is undoubtedly material, important, and relevant information to any man that one of his children is not his biological child, and that as a logical consequence his wife has had some form of sexual activity outside marriage.
If you tell this man that the middle child is not his, it seems to you virtually certain that he will kill his wife and the child, or telephone his father or brother and ask them to kill her. Their deaths are imminent and you believe whether they live or die depends on whether you conceal information from your client or whether you disclose the information to him.
In this situation the Entry Clearance Officer is frequently willing to give visas for all three children because they are “children of the family”, and because he does not want the blood of an innocent child and a potentially innocent woman on his conscience. If you conceal the truth from the client you will probably not be found out.
One can argue that even though you may believe the client will murder or authorise the murder of two people that is not your responsibility. It is the client’s personal responsibility. He would probably believe it his social and religious and family duty to kill them or have them killed. In his perception it is the right thing to do.
You must tell him, because he has to make a decision whether in the light of this new information he wishes to continue with the case. He can’t make an informed decision if you don’t tell him the facts and that there is a decision to make.
In none of the codes of conduct, rules of practise etc. that I have read is there discussion of the duty of a lawyer not to give relevant information to his client save
“When disclosure to the client- for example of a psychiatric report – might harm the client or others, the lawyer may take that into consideration”
Chapter 66 of Restatement of the Law Third deals with the unauthorised disclosure of client information to prevent death or serious bodily harm. As a last resort, where death or serious bodily harm is imminent, a lawyer may disclose confidential information to the authorities or to the individuals in danger, or as appropriate. This is of course American law not UK law.
In the English courts there were some cases [1] in the early 1990s culminating in the Court of Appeal decision in Oxfordshire County Council v. M [2].
Held “By s1 of the Children Act 1989 when a court determined any question with regard to the upbringing of a child, the child’s welfare was to be the court’s paramount consideration. That priority governed the entire application of the Act to children’s cases and it overrode every other consideration in this area of the law. The child’s welfare was paramount and the duty of the court when considering a care case was to arrive at a conclusion which was in the overriding interests of the welfare of the child.”
“In wardship proceedings under the Children Act the court was sitting to protect the interests of the child and had power to override the legal professional privilege in respect of a report obtained by a party”
A Court of Appeal judgement is of course pretty persuasive, but it should be observed
(i) that the case was a Children Act 1989 case only and may not necessarily be followed by a court dealing with civil damages or professional misconduct outside the strict confines of a Children Act case;
(ii) the information disclosed or not disclosed was legally privileged which as between solicitor and client a DNA report is not;
(iii) it was known to all concerned that an attempt was being made to conceal potentially relevant information.
Rule 16.02.3 reads
“a solicitor may reveal confidential information to the extent that he or she believes necessary to prevent the client or a third party committing a criminal act that the solicitor on reasonable grounds is likely to result in serious bodily harm”.
Rule 16.02.4 says:
“There may be exceptional circumstances involving children where a solicitor should consider revealing confidential information to an appropriate authority”
If the child client or adult informant refuses to permit disclosure then
“The solicitor must consider whether the threat to the child’s life or health, both mental and physical, is sufficiently serious to justify a breach of the duty of confidentiality.”
Rule 16.02.5 deals with the Children Act 1989, so the earlier provisions are of general import rather than confined to proceedings under the Children Act.
I would draw an analogy between a particular form of disclosure as reluctantly authorised above and non-disclosure for the same reason. The argument is in both cases that the public interest to save human life outweighs the normal public interest that client confidentiality must be preserved or the disclosure of material facts to your client should take place.
It would seem that if you decide to disclose the DNA result you are unlikely to be held criminally or civilly responsible for the murder of your client’s wife and child because your actions are not sufficiently proximate. Presumably you also tried to counsel your client against murder.
If you decide to impose your own personal morality on the situation, you may well find that your professional association does not back you. If you are employed, or in a partnership, you must discuss the problem with the other financial stakeholders, including possibly your insurance company.
This ethical dilemma will have been faced by lawyers in a number of countries. So far as I am aware it has never been discussed by a Court or by a professional body. Reasonable professional bodies could differ. It would be iniquitous if the life or death of a child turned on whether the father had emigrated to Scotland or to England, or to the USA or to Canada. If each national body forms its own view, and there then follows delay whilst the International Bar Association attempts to negotiate a consensus, the iniquitous discrepancies could continue for years. This is an issue where the International Bar Association (IBA) should make a ruling which the national professional bodies would then probably be happy to adopt in the interests of international consistency.
[1] W. v. Egdell [1990] 1 All E.R. 835. A Consultant Psychologist wanted to disclose his expert opinion that if released from a secure mental hospital the patient would commit further murders. Permission to disclose granted; Re M [1990] Fam Law 259; Re A (Minors: Disclosure of Material) [1991] 2 FLR 473; Re B (Minors) Disclosure of Medical Reports The Times 29 March 1993; Essex C.C. v. R The Times 19 August 1993
[2] Oxfordshire County Council v. M [1994] 1 FLR 175
Facilitating illegal entry
Beware the client who wants to know whether you will be available next Sunday afternoon. On enquiry you learn that he knows that someone will attempt to enter the United Kingdom in circumstances that may well be unlawful. Be very clear to him that you are not on standby for this situation as otherwise you risk becoming a party to a conspiracy to facilitate illegal entry.
“Deport My Husband”
The Immigration Service is not happy about being used as a weapon or lever in marital disputes. Many Immigration solicitors also have qualms about accepting these instructions, particularly those who lean to the “no-one is illegal” perspective or who think that immigration work is in a wider sense linked to morality. Given that your client is a “third party” in the eyes of the Home Office you are in danger of wasting the client’s time and money. However, there is no ethical bar to accepting these instructions provided you have no conflict of interest. You should ensure the client is informed in writing about the costs and the likely lack of benefit.
Campaigns
In the early 1980s political campaigns featured quite frequently in Immigration cases. They still go on, but there are far fewer of them than there were. At Bradford Law Centre we worked closely with the Joint Campaign against Deportations (JCAD), a Bradford based group. We were campaigning about five particular cases, and we wrote a letter to every MP explaining why what the Government was doing on each of these cases was wrong or ridiculous. An early result was that a high official from the Home Office visited Bradford to meet JCAD, and not long after that the Home Office conceded most of the cases. They all won eventually.
I became concerned about the ethical issues around campaigning. Some of the Leninist and Trotskyist groups appeared to have a policy of jumping to support any campaign going, and ideally to take over any campaign. Most of the groups seemed to have a person whose campaign had become the plaything of that Trotskyist group. They seemed to have an agenda in which the fate of an individual was less important than raising the political consciousness of the working class and the immigrant communities.
It seemed to me that the immigrant was sometimes being used, sometimes had little idea of what was going on or why, and from being grateful that someone was helping him or her sometimes became alarmed as to whether the campaign was helping. Anecdotally one organisation in London lost 17 campaigns in a row. As soon as a campaign started it raised the stakes with the Home Office. I saw cases lose that I thought would have won had there not been a campaign. On the positive side I saw cases win that without a campaign might well have lost.
I had to formulate a policy about how I would deal with campaigns associated with clients. I evolved rules which worked for me.
1. All decisions about the conduct of the case were made by the client in person in my presence. They could be accompanied by the Secretary or Chair of the campaign group if they wished – which they always did wish.
2. Only the client and one nominated person were given information – it was up to them whether when and to what extent they shared information with others.
3. My role was as lawyer. Although I have strong political views my role was not as campaign group member but as the client’s lawyer.
4. I had a duty to ensure campaign documentation put out did not damage the client’s case. This necessarily involved pre-publication input – obviously I did not charge for this.
When instructed, the decision had to be made whether publicity was good for the client’s case or bad. Sometimes we were legally in difficulties but the moral case was strong. Some clients had aspects to their cases which were unattractive and if their cases were publicised the publicity might backfire. Some clients were more attractive or photogenic than others. Where there were several cases around the same issue an attractive young woman with excellent English was more likely to get television time than an elderly man speaking through an interpreter. However her family’s case might have unattractive aspects which could help the Home Office.
The real objection of a lawyer to a campaign is that the existence of a campaign reduces the lawyer’s autonomy and ability to control events. Assuming we believe we are good lawyers our perception of the advantages and disadvantages of a campaign is usually skewed against campaigns – but there are cases where a good campaign can be decisive. Unfortunately there are many more cases where a bad campaign has damaged a case. Does that then mean that you need to spend time in the campaign making sure it is a good campaign? Not many immigration lawyers have the time for that.
Charging
In about 1985 a man came to see me. His first wife had died in childbirth about 10 years earlier, leaving my client with a new baby. He had had to remarry straight away to have a wife to look after the baby, and had gone on to have three children with his new wife. This wife, and her three children, had been approved to receive visas by the Entry Clearance Officer in Dhaka, Bangladesh. The eldest child was rejected because the Entry Clearance Officer did not believe what he was told and was not satisfied that the child was genuinely a child of the family. This was before DNA testing had been invented.
I lodged a short appeal. I wrote to the Entry Clearance Officer asking him to meet the family again when they came to collect their visas, and to interview the father of the deceased wife who would come to Dhaka in the hope that he would be interviewed. I could not require the Entry Officer to see him, I could only ask.
I warned the client that appeals were taking 2-3 years to be heard, and that my bill was likely to be £1,500+, with no certainty of winning.
He came in one day, with a smile from ear to ear. The Entry Clearance Officer had interviewed the grandfather and had issued a visa to the child. His family were arriving next week. How much was my bill?
Under the English solicitor charging rules at that time I could not charge a contingency fee. I could charge for the time taken, any urgency or unsocial hours aspects, and the importance of the matter to the client. How important was it to my client that
– the family stayed united; and
– he did not have a divided family for 3 years or longer; and
– he did not have the expense of flying to Bangladesh to see his son, and
– his son did not feel abandoned; and
– the saving of the £1,500+ legal costs and the 2-3 years mentioned above?
I had spent perhaps an hour on the case so far, so the important factor was the importance of the matter to the client. My private client rate at the time was £50 an hour. The more I thought about it, the more I felt that to charge him say £400 – which he would have gladly paid – was really a form of extortion. If I had saved the child from drowning I would not have charged the father £400. All I had done was my job. I charged £50. It was in a sense too little, but I could not see what else to charge. Many years later I am still undecided!
Contingency fees are a partial solution. Had the client paid or agreed a contingency fee of perhaps £3,000 I could in good conscience have kept £750 and legally I could have kept £3,000. Contingency fees are potentially very profitable if you can figure the odds right. I find them a difficult concept because you are by definition overcharging some clients for the benefit of others. I also suspect that all your clients will believe that they are entitled to as much of your time as they want, having paid so much for it.
How far can you push an unmeritorious case?
The difficulty with this question is how you define “unmeritorious”.
“Unmeritorious” does not mean “the case lost”. Cases can lose that had some merit, as exampled by many judicial review cases where permission was granted but the case lost, or appeals where leave to appeal was granted but the appeal eventually lost.
In White v. Jones leave to appeal to the House of Lords was only granted on the basis that the victory of the beneficiaries in the Court of Appeal was not disturbed, the costs order in favour of the beneficiaries in the Court of Appeal stood, and the Solicitors Indemnity Fund paid the beneficiaries’ costs in the House of Lords regardless of the outcome. In moral terms the Appellant’s position was poor but the case had some legal merit. The Appellant narrowly lost.
When the Titanic sunk, the captain of a nearby ship was criticised for not going to the aid of the victims. The family of the captain persuaded the Major government to have an enquiry into the captain’s behaviour. It will strike many as futile to have an enquiry at public expense into events which took place over 80 years ago, when all the witnesses are dead, and the only issue is the professional reputation of a man himself dead for many years. The late captain was exonerated. This case does not count as “unmeritorious”.
Miscarriage of Justice cases can easily run for over a decade. The Birmingham 6 and Guildford 4 cases ran unsuccessfully for many years – until they won – but no-one now criticises the lawyers who worked apparently without success for many years. The Derek Bentley and James Hanratty cases have been unsuccessful but it would be hard to describe them as unmeritorious. In 2003 I won an over age DNA case that had been running (not with me) since before 1987, a mere 16+ years.
There are cases that have no legal chance of success, are a total waste of time, and ought not to be before the court. The wasted costs order under Costs Practice Direction 53.4 has a 3 stage test
“a) Had the legal representative of whom complaint is made acted improperly, unreasonably, or negligently?
b) If so, did such conduct cause the applicant to incur unnecessary costs?
c) If yes to both, was it in all the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant cost and, if so, what sum was involved?”
“The acid test is whether the conduct permitted a reasonable explanation. It is not unreasonable to be optimistic”
I have the humbling experience of having decided that a primary purpose case could not win, but being persuaded by the sponsor to take it to court anyway and then winning it. It makes me very reluctant to say that a case cannot win.
There is also the possibility that the passage of time will create an unanticipated solution to your case. Asylum seekers from different countries who together have a stateless child, or the creation of a homosexual or unmarried relationship may create an Article 8 claim.
New developments in an asylum seeker’s home country – for better or for worse – may persuade the Government to change its policy. In 1982 the public murder at Teheran Airport of two returned asylum seekers from Leeds stopped the removal of Iranian asylum seekers for a few years. The invasion of Iraq in 1991 turned Iraq into a pariah state and saved many asylum seekers from being returned.
Certain borderline groups such as Pakistani Ahmadis may have a windfall gain from the next massacre. Case Law may change in your favour. Who would have predicted the outcome of Shah and Islam[4], another case that is a tribute to the tenacity of the lawyers involved?
One sometimes wins a case on the error of a civil servant. My favourite example is a case which would now have lost under Mahmoud[5]. The basic story was that Mr Ali had come as an illegal immigrant, met a girl, got married and now had two children. He now wanted to stay on Human Rights grounds. The Mahmoud case set a precedent that people like Mr Ali had to go out and apply to come in as a husband. However, this was before Mahmoud.
A Minister’s letter said that the case of Mr Ali, an illegal entrant, had been given careful consideration but the decision had been made nevertheless to remove Mr Ali to Turkey. I wrote back expressing gratitude for the Minister for being willing to meet me halfway, as Mr Ali was from Bangladesh rather than Turkey. Would the Minister now give the case even more careful consideration? Mr Ali was allowed to stay.
On another case I wrote to the MP
“I have never before seen a letter from a Minister of the Crown containing two grammatical errors and a spelling mistake in the first paragraph”
I went on to threaten non est factum, not because non est factum would succeed but as a threat to embarrass the civil servants. The next letter let the client stay.
“Non est factum” is where you say that a document is not the genuine document it purports to be – it is not the act of the writer. In this case that the Minister’s signature could not be genuine – which really it was.
So to the question of “How far do you push an unmeritorious case?” my answer is that you conduct every case to the best of your ability until such time as you have to advise that there is absolutely no hope. In some cases it will be fairer to the client to knock the case on the head at the first interview.
The political context
A state has the authority to control who enters the country, so Immigration is perforce a political issue in the way that say Negligence generally is not.
As practitioners we can – without breaching client confidentiality – point to concrete examples of useful citizens who were originally immigrants or the children of immigrants. We can explain why certain publicity catching situations – like asylum seekers living on benefits – are a direct result of Government policy. We have the knowledge and access to information and experience that the ordinary good hearted person does not have. In the same way that Tax lawyers tend to advocate for wealthy people, there is no reason why we should not advocate for our client group. From a purely selfish point of view the abolition of primary purpose was a financial blow to every Immigration practitioner, but I do not know an Immigration practitioner who did not welcome it. We are capable of putting forward proposals that will work and will be good for the country as well as for our client group.
Decisions on Immigration policy are made by government. There is no reason however why ILPA (the Immigration Law Practitioners Association) should not have a set of proposals that alleviate situations, end anomalies, or build for the future.
I see no contradiction in saying that in the short term we may need to import nurses, but that we should be improving our education system to tap the NEETs (people living on benefit who are Not in Education Employment or Training) for the future supply of nurses and paramedics. The abolition of the Construction Industry Training Levy by Thatcher has led as predicted to a national shortage of joiners and other tradesmen. Why not bring it back?
No group has a monopoly of input into policy. No group is barred from putting forward a view. I should make it clear that I honour ILPA JCWI and the Immigration sub committee of the Law Society for their steady quiet advocacy sustained over decades.
It is up to all of us to do some ourselves and not leave it all to a handful of hard working hard pressed people in London. In this spirit I make some suggestions.
Future Immigration and Asylum Rules
The 1988 Immigration Act created difficulties for polygamous marriages that are probably in breach of Articles 8 and 12 of the European Convention on Human Rights in that the legislation and associated Immigration Rules were disproportionate to the alleged problem and although stated to be against polygamy allowed a man the benefit of choosing which wife to bring instead of confining immigration to the first wife.
I am not sure that being “against polygamy” was ever a lawful aim. An amendment that said that all spouses who had married before the 1988 Act came into force could come to the UK on the same accommodation and maintenance rules that applied prior to the 1988 Act coming into force would be seen to be fair. The children (now of course mainly adults) should not be excluded if on the date of the commencement of the 1988 Act they could have come if they were alive or had they been alive at that date. If they have families those families will have to come under the normal rules.
The requirement for financial dependency of aged parents upon the sponsor in the UK causes huge difficulties. I cannot see why that requirement cannot be dropped.
The Immigration Rule for widows of any age was tremendously useful. I would suggest bringing it back, perhaps with a proviso that those ladies (or gentlemen in the case of widowers) would not be entitled to bring spouses in the future.
The present Adoption Rules require adoptive parents to reside with the child abroad for a lengthy period and simultaneously to meet the accommodation and maintenance requirements by having a job and a home here. They need amending. I would also suggest that people who have been married for say 7 years who have not yet produced a child should in the spirit of Article 12 be allowed to adopt a nephew or niece or cousin from abroad.
The over age DNA children are still out there. Their families could in many cases find jobs for them here without difficulty. If it is right to correct an injustice from 80+ years ago relating to a man who was already long dead (the Titanic case mentioned above) it must be right to correct errors made by Entry Clearance Officers whose behaviour was such as to spark off a Commission For Racial Equality (CRE) enquiry in 1985 and some of whom were found by the CRE to have been unfair.
Let asylum seekers work. Give them National Insurance numbers so they can be traced easily.
Improve the pay, the quality and the training of all Home Office staff who work in the Asylum Division.
Can the Home Secretary really be proud that an Iranian is interviewed by an interviewing officer who can’t spell Teheran and did not recognise the name of Kofi Annan the then Secretary General of the United Nations?
A refusal letter that refers to the fighting in Kashmir as “heavy civil war” should not have been allowed to go out.
A 2010 example is the asylum refusal letter where the Home Office worker thought the guerrillas the refugees were frightened of were big hairy apes – which the World Wildlife Fund had confirmed did not exist in that region.
Conclusion
I hope this tour around professional ethics in immigration will have helped to clarify issues for colleagues.
It is a privilege to have worked in immigration and asylum. There are so many decent and sometimes inspiring people among the clients, among one’s colleagues, in the Home Office, the Immigration Service and the posts abroad, among the interpreters doctors and academics, and in the courts.
The ethical issues that arise are so interesting and sometimes excruciating because we are working with human beings.
The ethical issues are of course not only amongst the practitioners. Entry Clearance Officers struggle with identical issues. Immigration Officers have a daily struggle between enforcing the law and human decency, compounded by their difficulties in working with the Home Office. Adjudicators and barristers will feel that their ethical difficulties are not acknowledged in this article. I must acknowledge lack of experience of your problems.
Charles James
Note: Much of this material was published in Tottel’s Immigration Asylum and Nationality Law Vol 19 No 3 2005 as part of an article on professional ethics in immigration
[1] Hippocrates usually gets the attribution. “Primum non nocere” appears in Latin, a language Hippocrates did not speak, several hundred years after his death. The nearest we come in his surviving written works is from Epidemics Bk I section XI
“Declare the past, diagnose the present, foretell the future; practise these arts. As to diseases, make a habit of two things – to help, or at least to do no harm.”
[2] R. v. Stratford-upon-Avon District Council ex p. Jackson 1985 1 W.L.R. 1319
[3] White and Another v. Jones and Another [1996] 2 A.C. 207.
[4] Shah and Islam [1999] 2 A.C.629
[5] R (Mahmoud) v. SSHD [2001] 1 WLR 840
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