As a direct access immigration barrister I recently had a case where an individual had his appeal against an application for leave to remain dismissed due in part to the failings of his previous representatives. The First Tier Judge had dismissed the appeal and permission to appeal had been granted.
The matter came before the President of the Upper Tribunal Mr Justice Lane who had to consider whether or not the failings of the Appellant’s previous representatives, such as making an application while he still had an outstanding application. The Appellant had complained and the regulatory body found that the previous representatives had failed the Appellant.
The President allowed the appeal for the following reasons as given in the headnote:
(1) Poor professional immigration advice or other services given to P cannot give P a stronger form of protected private or family life than P would otherwise have.
(2) The correct way of approaching the matter is to ask whether the poor advice etc that P has received constitutes a reason to qualify the weight to be placed on the public interest in maintaining firm and effective immigration control.
(3) It will be only in a rare case that an adviser’s failings will constitute such a reason. The weight that would otherwise need to be given to that interest is not to be reduced just because there happen to be immigration advisers who offer poor advice and other services. Consequently, a person who takes such advice will normally have to live with the consequences.
(4) A blatant failure by an immigration adviser to follow P’s instructions, as found by the relevant professional regulator, which led directly to P’s application for leave being invalid when it would otherwise have been likely to have been granted, can, however, amount to such a rare case.
The Judge went on to state as follows in paragraphs 30 – 33:
30. Once the issue is analysed in this way, it can readily be seen why it will be only rarely that an adviser’s failings will constitute such a reason. As a general matter, poor legal advice in the immigration field will have no correlation with the relevant public interest. The weight that would otherwise need to be given to the maintenance of effective immigration controls is not to be reduced just because there happen to be immigration advisers who offer poor advice and other services. Consequently, a person who takes advice to do X when doing Y might have produced a more favourable outcome will normally have to live with the consequences.
31. The facts of the present case are, however, strikingly different. The OISC decision shows that IWP did not give the appellant poor advice. The organisation blatantly failed to follow the appellant’s specific instructions regarding the timing of the withdrawal of the application for permission to appeal. That failure was the sole reason why the appellant’s application for leave fell to be treated as invalid.
32. The conclusions of the OISC investigation are highly material in determining whether this really is a rare case in which the misfeasance of a legal adviser can affect the weight to be given to the public interest in maintaining an effective system of immigration control. The OISC findings are clear and categorical. The position is far removed from that which we frequently see in this jurisdiction, where legal advisers are belatedly blamed but where there has been no admission of guilt and no finding of culpability by a relevant professional regulator.
33. Would confidence in the respondent’s system of immigration controls be diminished if, in the particular circumstances of this case, regard was to be had to the fact that, if IWP had complied with their client’s instructions, the appellant would have made a valid application for leave that is likely to have been successful? It seems to me plain that the answer to that question must be in the negative. On the contrary, public confidence in the system could be said to be enhanced if it were known that the system is able, albeit exceptionally, to take account of such a matter.
The Judge went onto to allow the appeal and remade it in the Appellant’s favour for the reasons given in paragraph 37:
37. The First-tier Tribunal Judge’s decision contains errors of law. I set it aside and re-make the decision by allowing the appellant’s appeal on human rights grounds.
It is clear from the above, that this is potentially a positive decision. However, what sets this case out from others where individuals merely blame their previous representatives. This is a case where the Appellant had been to the Ombudsman and had obtained a positive outcome that identified detailed failings on the part of the previous representatives.
In my view it is clear that for anyone to succeed in respect of making an application where the fault lies in full or in part with the previous representatives it is vital that evidence is provided to highlight / demonstrate that the Appellant has been blamed by the effects of his previous representatives.
If you have been left down by previous representatives or consider that there may have been or have an immigration problem generally please do not hesitate to contact me or one of the expert team at Imperium Chambers on 0207 242 3488 or through this s site.
Paul Turner is the head of Imperium Chambers and is a highly regarded direct access immigration barrister licensed by the Bar Council to provide direct access advice to the public as well as taking instructions from solicitors.