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B & Anor v Secretary of State for the Home Department & Anor [2012] EWHC 3770 (Admin) - 20th December 2012


A judgment reiterating the duties of advocates and lawyers, highlighting the importance of professional competence and the observance of the duty owed to the court to act in the interests of justice, particularly in the context of asylum and immigration cases: 'This is an area of the law where those who are not competent to practice must not practice, and where those who are competent to practice must practice with their duty to the court at the forefront of their mind' (at [17]).

In cases involving asylum and immigration, where the court offers a generous service in times of hours and speed of decision making, it is important that lawyers, first, only undertake cases where they have a proper knowledge of the law to be able to put forward competent arguments and, secondly, to bear in mind the paramount duty to the court to act with independence in the interests of justice (s. 188, Legal Services Act 2007). Those duties are set out in the respective rules of conduct of both of the solicitors and barristers profession.

In the two present cases, the duty to the court was overlooked, but more seriously, there was a lack of professional competence: arguments that were nonsensical were put forward to the court by lawyers who did not have the degree of competence that is essential to practice in immigration law. In the case of B, it was very clear to anyone who had read or considered the matter that to argue that Art. 8 had not been correctly applied was totally without merit, yet counsel made an application to renew, followed by an application for interim relief. In the case of J, an application for judicial review firstly of a decision of the Secretary of State and secondly, against refusal of permission to appeal to the Upper Tribunal, were based on grounds directed completely at the decision of the Secretary of State, which was hopelessly out of time and unmaintainable, and mentioned nothing at all about the refusal to grant permission to appeal. A competent person would have known that the only possible grounds for judicial review were a challenge to the decision of the Upper Tribunal on the principles set out in Cart v the Upper Tribunal [2011] UKSC 28, on the very narrow basis and in accordance with what the courts have said in that and subsequent cases.

No action was taken in referring the solicitors firms, the solicitor advocate or counsel to the relevant regulatory authorities on the grounds that apologies had been given, explanations tendered and it was the first occasion on which the court had had to deal with reiterating the duties of advocates and lawyers.