Immigration: Tribunal lays out duties of solicitors
A judge has expressed deep concern about how an East London law firm has run immigration cases, with multiple clients relying on materially similar documents when applying for visit visas.
Upper Tribunal (UT) Judge Hoffman held that these documents “were more likely than not to be the result of fraud or misrepresentation”.
The UT found that five Bangladeshi clients represented by Zyba Law had each relied on similar false documents when applying for entry clearance, likely obtained with the assistance of a company based in Bangladesh known as Vision Sylhet Consultancy, and had continued to rely on those documents in support of their judicial review proceedings.
Zyba Law – which denied knowing or suspecting the documents were false – failed to co-operate with the tribunal in identifying other cases using them and so last year the UT stayed a further 16 judicial review claims brought by the firm against a refusal of visit visa, pending a hearing in October.
In the ruling from last November only published yesterday, Judge Hoffman, sitting with Judge Lindsley, said Zyba Law denied having any links to Vision Sylhet Consultancy or using any agents in Bangladesh – the respondent entry clearance officer had not sought to cast doubt on those assertions “and neither do we”.
He continued: “On the limited information available to us, we are unable to make any findings on why so many Bangladeshi nationals relying on similar documents in support of their visit visa applications have decided to use Zyba Law, seemingly exclusively, to bring their judicial review claims and it would be inappropriate for us to speculate.”
Having considered the case law, the judge said a solicitor may act for a client putting forward an account the client knows to be untrue, “providing that they do not further a dishonest purpose”.
He explained: “Unless there are indicia of fraud, and as long as the solicitor is acting in accordance with their professional obligations, there is no requirement for them to proactively make enquiries to satisfy themselves that their client is telling them the truth.
“However, where there are ‘red flags’ that suggest the client is seeking to use the solicitor’s services in furtherance of a fraud, the solicitor cannot continue to act for their client without first making enquiries to satisfy themselves that the conduct is not fraudulent.
“To continue to act would be a breach of their professional obligations.”
A red flag would include knowing that several clients of the same nationality who have made applications for entry under the same immigration rule were relying on identical or substantially similar documents, “and there is no obvious innocent explanation for this”.
Whether it was reasonable to expect a solicitor to have noticed the indicia of fraud would depend on factors such as the number of solicitors working for the firm and the time period over which the clients were taken on.
Here, there were only two solicitors at Zyba Law handling the applications – firm principal Zakir Hussain and Shafiul Tauhid – and many were made over a short period of time.
It was “reasonable to have expected” them to notice the similarities; indeed, it was Judge Hoffman himself seeing them in just two of the cases over the course of a month that led to the investigation.
The judge rejected the argument that privilege or some other duty of confidentiality would prevent a solicitor from telling one client that they have another client who has provided similar instructions and documents.
Further, the nature of the solicitor’s duty in such circumstances meant Zyba Law was wrong to contend that it did not matter that the respondent had not questioned the probity of the documents.
The court was also critical of the solicitors’ failure to assist the UT – neither attended last October’s hearing for reasons Judge Hoffman considered “disingenuous” – while Mr Hussian “arguably has acted in breach of his duties as a solicitor to act in a way that upholds the public trust and confidence in the solicitor’s profession, to act with integrity and not to waste the court’s time”.
The UT was particularly critical of the conduct of one of the five cases, which was slightly different from the others in that it also advanced a human rights claim.
Zyba Law’s handling of the case “gives us serious cause for concern”, the judge said, including that an application for the case to be exempt from the general stay was made on the basis that it did not share any of the similarities with the other cases.
Mr Tauhid signed a statement of truth to this effect when in fact the case relied on three of the same documents.
Judge Hoffman said that, once a solicitor was notified by the respondent, the UT or “another potentially reliable source” that their clients may be relying on fraudulent or unreliable evidence, “there is in our view a duty on the solicitor to assist the tribunal in the furtherance of its inherent jurisdiction to ensure that its time and resources are not being abused in furtherance of a fraud”.
He added: “We find these breaches of the duty of candour, and arguably Mr Tauhid’s professional duty to act with integrity, to be significant.”
The UT concluded by saying it would issue ‘show cause’ notices against both Mr Hussain and Mr Tauhid under the Hamid jurisdiction, its inherent jurisdiction to require lawyers to explain their actions in cases where a judge has concluded that they may have acted improperly.
A subsequent UT decision in April confirmed that the substantive claims had been either withdrawn or dismissed but did not say whether the Hamid hearing had taken place.
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