Immigration: Advisers need to stand firm and act only as authorised
The Upper Tribunal has referred an immigration adviser “persuaded to act outside his remit by the entreaties of clients” to the Office of the Immigration Services Commissioner (OISC).
Mr Justice Lane, president of the Upper Tribunal, and Judge Lindsley said they were concerned that Salman Zafar “did not appear to have a proper understanding of the limits of his authorisation”.
Immigration is the only area of law which is not one of the reserved legal activities but is subject to a standalone regulatory regime that allows non-lawyers to practise in it.
The tribunal said it had identified seven judicial reviews where it was concerned that Zafar Law Chambers, based in Hounslow, west London, had acted beyond its OISC registration in having conduct of a judicial review.
Mr Zafar argued that he did not regard the work outlined by the tribunal, which included withdrawing a judicial review and applying for an oral reconsideration, as judicial review case management.
The tribunal said that despite taking into account Mr Zafar’s young age – 31 this year – and limited experience, he “cannot reasonably have thought” that withdrawing a judicial review was not acting in the proceedings.
“Also, having had due regard to Mr Zafar’s age and experience, we are concerned that he appears to have been persuaded to act outside his remit by the entreaties of clients.
“It is a commonplace of working in this difficult area that practitioners are faced with clients who are distressed at the prospect of being removed from the United Kingdom.
“This does not absolve such a professional from the need to stand firm and act only as authorised by the statutory scheme.”
The Upper Tribunal was holding a Hamid hearing to decide whether Mr Zafar should be referred to the OISC.
Delivering judgment in R (on the application of Hoxha and others v Home Secretary (representatives: professional duties) UKUT 124 (IAC) [1], the tribunal said it wrote to Mr Zafar in November 2018 after he “seemingly acted” beyond his registration in 32 judicial reviews, the majority of which had a standard ‘42 page’ set of irrelevant grounds and consequently were refused and certified to be totally without merit.
An additional issue was raised about the role of Zafar Law Chambers with chartered psychologist Dr Saima Latif, in “producing arguably misleading psychological reports” which were relied on in judicial reviews.
The judges said the home secretary had referred Ms Latif to the Health and Care Professions Council and it was for that body to decide whether a “credible psychological report” could be obtained by “an initial screening by an untrained assistant, followed up by a telephone interview with a detainee by a chartered psychologist”.
However, the role of a legal representative was “to ensure that any expert report accurately reflects the way” in which information was obtained.
“This is not something which can be simply left to the expert. Reports must be read and checked for accuracy on this point by the representative, and indeed for anything else within the knowledge of that representative.
“Representatives have professional duties in this respect and are not simply a postal service via which this evidence reaches the secretary of state.”
The tribunal found that one report misleadingly stated that the psychiatric report took place “on a date and at a place/way which was not accurate”.
The judges were also concerned that Mr Zafar had not been “entirely open” about the role of his brother, Sammad Zafar, in the role of screening assistant.
The tribunal concluded that it was appropriate to refer Salman Zafar to the OISC both because he had acted in judicial reviews without authorisation and because of his firm’s lack of understanding of the need to check the accuracy of expert evidence.
The tribunal said it believed that around 100 judicial reviews were lodged with the Upper Tribunal last year on the basis of the same 42 pages of “generic typed grounds”.
The tribunal said that in a randomly selected sample of 24 put to Mr Zafar there were “a variety of pointers” that led to a suspicion that Zafar Law Chambers may have been behind this “torrent of time-wasting nonsense”.
Mr Zafar confirmed that the clients involved were his but said he had “nothing to do” with lodging the judicial reviews.
The judges said they could not come to a conclusion on the identity of the person or persons who lodged the reviews, in the absence of investigative powers or skills but they were “in no doubt” that “the issue merits investigation by the OISC”.