Immigration solicitor fined for meritless judicial review applications

The SDT has found in SRA v Syed Wasif Ali (Case No. 12075-2020). An immigration solicitor who advised a number of his clients to bring meritless and in some cases out of time judicial review applications has been fined and banned from bringing judicial review applications by the Solicitors Disciplinary Tribunal. Judicial Review applications to the Administrative Court (usually challenging Home Office decisions in immigration matters) are applications that should only be brought as a last resort and are subject to a strict 3 month limit.

Solicitors are highly regulated and owe their clients a contractual, statutory and tortious duty of care to act in their best interests. We understand as lawyers where solicitors go wrong and where solicitors fail to act in their client’s best interests to effectively act upon their client’s instructions.

We specialise in providing expert legal advice on professional negligence claims against solicitors and all members of the legal profession.

Professional negligence claims against members of the legal profession tend to be complex in nature and argument. Professional indemnity insurers will often instruct a specialist City of London law firm to defend claims vigorously and therefore it is essential to take legal advice at the outset from our expert professional negligence team.

The Allegations

The allegations were that between 2015 and 2017 the immigration solicitor:

• brought claims which breached his professional obligations not to make submissions that he did not consider, or ought not to have considered, were properly arguable.
• Carried out immigration work, by making immigration applications to the Home Office and applications for judicial review to the Court, which had no legitimate purpose in that they had no prospect of his client succeeding.
• Failed adequately to advise clients as to the poor merits of their claims.
• Failed to supervise adequately the work of unqualified case handlers.
• the Respondent was party to applications for British citizenship, and consequential applications for leave to remain, which bore the hallmarks of being an abuse of the immigration system.

Meritless judicial review applications

As an alternative to having to pay a fee, the solicitor advised his clients that they could pursue their immigration application via the judicial review process. The SDT’s case was that instead of sending a pre-action protocol letter which challenged a decision to refuse an immigration application, the solicitor used the pre-action protocol letter to make a substantive immigration application. The Home Office would reject the pre-action “challenge” and the solicitor then sought to judicially review the Home Office’s response to the pre-action protocol letter. The judicial review claims reiterated the same generic submissions contained in the pre-action protocol letters. They did not identify any public law error in a decision of the Home Office. The applications for judicial review were often brought outside the three-month limitation period.

The SDT decision

The SDT’s position was that any solicitor specialising in immigration law would know that the judicial review applications brought were both meritless and out of time:

These cases display a number of disturbing features. In almost all, the
decision said to be challenged in the claim form and grounds is the Home Office’s response to the applicant’s pre-action protocol letter. That PAP response is not, as is obvious, the decision with which the judicial review application is concerned. The PAP response is a reply to a letter from the applicant, which puts the Secretary of State on notice of the applicant’s alleged concerns regarding a particular decision (or failure to take a decision). A PAP response which defends the position taken in a decision cannot (without more) constitute a discrete decision, which can be separately challenged by judicial review.

Any solicitor specialising in immigration law would be expected to know this. In any event, it would have become apparent, following receipt of the first judicial review decision from the Upper Tribunal, making this point plain, that the approach taken Harrow Solicitors was fundamentally misconceived.

SRA v Syed Wasif Ali (Case No. 12075-2020)

Immigration Judicial Review Applications

A Judicial Review application is made either to the Upper Tribunal or Administrative Court in order for a Judge to review the lawfulness of a decision made by a public body i.e. the Home Office. Judicial Reviews can be a costly and time-consuming process and should only be made if the Claimant feels that the decision was illegal, irrational, or unfair. Therefore, careful consideration should be given before going down the Judicial Review route to avoid costs being awarded against the Claimant.

When is an Immigration Judicial Review possible?

An Immigration Judicial Review claim should only be made as a last resort; meaning all other appeal rights (including Administrative Review, if applicable) should have been sought and exhausted. Judicial Reviews can be made in the following circumstances:

• If an asylum or human rights claim has been certified by the Home Office so there is no in-country right of appeal;
• If a visitor visa application has been refused, as this application carries no statutory right of appeal;
• Refusal of EEA applications where all of the appeal rights have been exhausted;
• Unlawful immigration detention;
• If there has been an unreasonable delay, through no fault of the Applicant, in the Home Office making a decision on an application;
• If permission to appeal at the Upper Tribunal has been refused but it can be demonstrated there has been an error of law – see our article on CART Judicial Reviews for further information on this.

Judicial Reviews can also be used to challenge a migrant’s imminent removal/deportation from the UK. This would be an urgent case and is called applying for an “injunction”. This is an emergency interim measure to prevent imminent removal.

What is the time limit for an Immigration Judicial Review application?

Claimants should not delay in making an application for Judicial Review. Whilst the deadline for making a Judicial Review claim is longer for than a statutory right of appeal, Judicial Review claims should be made within 3 months of the decision being challenged was made.

Download the SDT decision

Common Examples of Solicitor Negligence

Examples of common claims against solicitors, barristers, patent attorneys and licenced conveyancers include:

• Failing to provide correct legal advice: a claim can be brought if a lawyer has provided a negligent legal opinion, relied upon by a claimant, which has led to personal or financial loss.
• Failing to fully investigate or properly evidence the claim: solicitors and direct access barristers may be negligent in not gathering all pertinent information to ensure a claimant’s case is successful e.g. by not obtaining witness statements which supports the version of events.
• Failing to fully warn the client on the risks: for example a solicitor will be negligent if a specific risk warning that a tax avoidance scheme might fail.
• Missing a limitation date leading to a claim becoming time-barred: if the original claim had merit, then a claimant is entitled to pursue the errant solicitor or law firm for their loss of chance of success in the claim.
• Failing to comply with a court order or deadline: if your claim has been struck out by the court after your solicitor or barrister breached an order of the Court (e.g. an unless order), then you may have a claim against the legal professional for poor performance of the litigation.
• Poor performance of instructions: failing to adequately investigate title to property when acting for the buyer of a property; failing to advise on burdens affecting a property e.g. restrictive covenants, adverse rights burdening the property, failing to register a mortgage/debenture at Companies House if acting for a buyer client company.

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Can I challenge my solicitor’s bill?

In addition, unlike many other law firms, we have an experienced legal costs team, who specialise in challenging the reasonableness of bills/invoices rendered by your previous solicitor. We find that in many professional negligence claims, clients are not happy with the service they have received and in tandem the price that they have paid for the sub-standard work completed.

If you consider that your bill (i.e. invoice) is overpriced for the work that you instructed to be done, our expert costs team can help you to understand the reasonbaleness of the bill(s) and if appropriate, challenge the bill in addition to any professional neglgience claim.

Can I challenge my solicitor’s bill and start professional negligence proceedings?

This is a relatively contentious area. Challenging a bill is commenced in the Senior Courts Costs Office (SCCO), whereas commencing professional negligence proceedings (if the claim is for more than £100,000) is in the High Court.

One of the Court’s overriding objectives in the Civil Procedural Rules is to save time and expense. The Court generally do not condone claimants commencing parallel proceedings and if costs proceedings are commenced in the SCCO, and the pre-action protocol for professional negligence is ongoing, the SCCO will likely order a stay of the costs proceedings in order to enable the parties to comply with the pre-action protocol for professional negligence. However, this varies depending on the individual facts of a case.

No win No fee for solicitor and own client costs disputes

We specialise in costs disputes at the Senior Courts Costs Office (SCCO) proceeding under the Solicitors Act 1974. That is why we can offer a no win no fee agreement to clients once we have had sight of the relevant papers (and ideally a detailed bill of costs). This means you do not have to pay us anything should your solicitor’s bill not be reduced.

We will advise you on the merits of reducing your solicitor’s invoice. Discuss the merits of early protective without prejudice settlement offers. We draft Points of Dispute (for clients) and Points of Reply (for solicitors). We will Represent you at any directions hearing, preliminary issues hearing and the detailed assessment hearing before the SCCO.

Instruct Specialist Professional Negligence Solicitors

We are a specialist City of London law firm made up of Solicitors & Barristers operating from the only law firm based in the Middle Temple Inn of Court adjacent to the Royal Courts of Justice. Our team have expertise in advising on claims for compensation against professionals that have fallen below the standard expected, which causes clients financial or personal loss. We are experienced in bringing successful claims against negligent solicitors, barristers, financial advisers, surveyors, valuers, architects, tax advisers and IFAs.