Immigration: Failure was mainly that of the secretary of state
The Government Legal Department (GLD) has apologised to the Upper Tribunal after a trainee solicitor failed to properly advise the Home Office about undertakings in a consent order.
The Upper Tribunal (Immigration and Asylum Chamber) heard that discussions, both with the Home Office and with a Palestinian journalist applying for a student visa, were conducted solely by the trainee, which “should not have occurred”.
Mrs Justice Steyn was ruling on the aftermath of the “mishandling” of the visa application made by Amena El-Ashkar, a Palestinian academic and journalist, then based in Lebanon.
Steyn J said the handling of the case between September 2022 and July 2023 was “shockingly poor”, with a “detrimental impact” on Ms El-Ashkar.
The judge said the Home Secretary, James Cleverly, acknowledged that the list of errors in the case, “for which there is no excuse”, were “serious”.
Ms El-Ashkar filed an application for judicial review in the Upper Tribunal in December 2022 after her application for entry clearance was refused.
However, neither she nor the tribunal was informed that the home secretary had certified the decision under the Special Immigration Appeals Commission Act 1997, which meant the challenge should have been brought before the Special Immigration Appeals Commission (SIAC).
The current home secretary, Mr Cleverly, apologised for a “long and mutually exacerbating” list of errors, including breach of undertakings given to the tribunal.
Ruling on an application by the home secretary to withdraw the undertakings, Steyn J said “responsibility for the mishandling of this case lies primarily with the secretary of state, but also to an extent” with the GLD.
She said the GLD had apologised both to the tribunal and Ms Ashkar for failing to properly advise the Home Office about them.
“Those at the Home Office who instructed GLD, and those at GLD who were dealing with this case, were unaware that the September decision had been certified”, she explained, so the judicial review should have been brought before SIAC.
The Home Office’s special cases unit (SCU), which did know about the certification, did not know about the judicial review.
James McVeigh, a senior lawyer at the GLD, led a “mini-team of three lawyers and one trainee solicitor” which advised the Home Office about the consent order containing the undertakings around reconsidering the application, after which the judicial review application was withdrawn by agreement.
He told the tribunal that the “GLD’s discussions with the Home Office, and with the applicant’s representatives, regarding the ‘final form of the consent order’, were conducted solely by the trainee from his mini-team “without the trainee seeking any input or approval from supervisors. This should not have occurred”.
Steyn J said “Mr McVeigh’s emphasis is on the trainee failing to seek input or approval: I would add that such supervision was not given by him or the other supervising lawyer in his team”.
As a result, the Home Office was not advised of the legal significance of the inclusion of undertakings in the consent order, in particular that an undertaking could be enforced against the Home Office as if it were an order of the court, and that it would be at risk of committal for contempt if it failed to comply with the undertakings.
Steyn J said this was “a serious failure on the part of GLD, and that organisation is right to acknowledge that it bears some responsibility for what has occurred”.
However, it was “very likely” that this would have been avoided if the Home Office had not failed to instruct GLD that a certification decision had been made, the decision was based on sensitive information and that the SCU was involved.
Steyn J said: “Mr McVeigh’s statement makes clear that the consent order should not have been finalised by a trainee without supervision, and is explicit as to the advice that should have been given.
“It seems to me that it is implicit that GLD recognises the importance of ensuring sufficient supervision of trainees, and that in advising its client in respect of undertakings (and more generally), its advice should meet its professional obligations.”
The judge rebuked the home secretary for his breach of undertakings, decided it was “not necessary or proportionate” to initiate contempt proceedings and granted his application to withdraw the undertakings.
He agreed to pay the costs on an indemnity basis.
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