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UK immigration lawyers have been left fuming by reforms that could see them hit with ‘wasted cost orders’ (WCO) as part of Home Office plans to end what it describes as ‘the practice of bringing immigration and asylum claims without merit and at the last minute to delay the deportation process’.
The so-called ‘good faith’ requirement, outlined at part of Home Secretary Priti Patel’s ‘New Plan for UK Immigration’ has been blasted by the Law Society, Bar Council and Immigration Law Practitioners Association (ILPA). The Legal Services Board (LSB) also waded in, arguing that the requirement was totally unnecessary and would prove difficult to enforce.
The Law Society said: “We oppose, in the strongest possible terms, any implications that our members can be assumed not to practice in good faith already, a claim which is damaging not only to the profession but to the vulnerable clients whom it might deter from seeking advice.”
Rigorous regulatory regime
The Society argued that its members were already subject to an ‘extremely rigorous regulatory regime’ under the Solicitors Regulation Authority (SRA), which includes duties to the court and duties relating to integrity. Meanwhile, the Society added that it was subject to further oversight and scrutiny under the Legal Aid Agency.
According to the Society, no explanation or evidence has been provided as to why the current high level of oversight is inadequate.
Members of the Bar Council meanwhile have expressed concern over the measures, given that barristers are already required, by their regulatory code, to act with honesty and integrity and owe stringent duties to the court. The Bar Council is also heavily regulated by the Bar Standards Board.
The Bar Council said: “Other than signalling a distrust of legal advisors, imposing a good faith requirement on regulated legal professionals would add nothing to existing regulatory regimes. Doing so in one jurisdiction and not others is particularly objectionable.”
“So far as individual applicants are concerned, a requirement of good faith is inbuilt to the system at every stage,” the Bar Council added.
Professional obligations already apply
Law Society president, I. Stephanie Boyce, said: “The suggestion of so-called ‘good faith’ requirements for lawyers working in asylum is not only a nonsense, but it would also undermine trust in the justice system.”
“Asylum solicitors are already bound by the highest ethical and professional standards – they are highly regulated, not just by the Solicitors Regulation Authority, but also by the Ministry of Justice’s own Legal Aid Agency,” Boyce added.
The ILPA echoed Boyce’s comments, arguing that where the new requirement applied to legal representatives, as opposed to applicants, such professional obligations already apply. The ILPA did say that the duty of good faith should not only apply to immigration lawyers and applicants, but to the state.
“The state should undertake to do its utmost to assist the applicant to make his or her asylum claim effectively, to safeguard the applicant’s welfare, to uphold the norms of international humanitarian law and to communicate its decisions to the applicant at the earliest possible opportunity (rather than serving them at the last minute, often shortly before removal flights),” the ILPA said.
The ILPA added: “If the state breaches these duties, judges could be directed to give less weight to the Home Office’s evidence in asylum appeals.”
Quality problems
The LSB did acknowledge that there is some ‘anecdotal evidence’ of quality problems, but even so, argued that a ‘good faith requirement imposed on legal representatives would ‘duplicate existing obligations and is therefore ‘unnecessary’.
“The best way forward may be to focus on improving enforcement of existing rules,” the LSB said.
However, in its review of continuing competence, the LSB said it had identified that immigration and asylum are among the ‘high-risk practice areas, where there is evidence of actual harm to consumers’.
Meanwhile, the SRA said it’s considering ‘sector-specific competence statements or requirements’ in areas such as immigration and advocacy.
The LSB said: “While there is some evidence of quality issues in this area, and judicial concern about individual cases has been reported in the press, this is largely anecdotal.”
“In short, the best way forward may be to focus on improving approaches to ensuring compliance with existing regulatory requirements, on which there is already work in progress, rather than creating new rules that may prove difficult to enforce, the LSB added.
Consultation response
In an 81-page response to the government consultation on the so-called New Plan for Immigration, which closed recently, the ILPA said: “Even if the WCO rules are framed in such a way as to have equal application to both parties, the impact will fall disproportionately upon appellants, because the Home Office is able to treat adverse costs orders as operating costs.”
“The burden of meeting them does not fall upon the Secretary of State or a Presenting Officer personally, but upon the taxpayer, so they have little deterrent effect. By contrast, costs orders against appellants and their representatives do fall upon them personally,” the ILPA added.
Home Secretary Priti Patel argued that the ‘good faith’ measure would “tackle the practice of meritless claims which clog up the courts with last minute claims and appeals.”
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