As a direct access immigration barrister practising all over England and Wales I have been heavily involved with and representing those effected by the paragraph 322 5 refusals. I have written on and off as to what is happening as a representative and as someone who has supported the Highly Skilled Migrant Group and has the honour and pleasure of working with member of my chambers who enjoy excellent reputations in this distressing area of law, including Jay Gajjar and Kareesha Turner. One of the benefits of having a close knit and professional team is that we remain at the cutting edge of any developments, indeed I have had two Judges asking me as to what is “going on” at the Higher Court level.
On a personal note I have continued to find that appeals are easier to win, with judicial review being the more difficult of the two. It has been a relief to see that a lot of people have varied any outstanding applications from SET O to SET LR and that appeals are being granted or have been granted and that they continue to be won.
Having said that, the most important factor is the preparation of the case. At Imperium Chambers, it is not only me working on such cases but our expert team (including Jay Gajjar and Kareesha Turner).
We take instructions from both solicitors and also directly from the public. Indeed there are excellent solicitors working in this field and for some direct access barristers are not the way forward. The purpose of this blog / article is as a result of a number of appeals I have done recently where I have received the papers the day before the hearing and have not had the chance to speak let alone see my client and consequently have not had any opportunity to provide any input into their case, other than passionately arguing it on the day.
I have written in the past as to developments that have been occurring in respect of paragraph 322 5 but having done a number of appeals of varying quality thought it might be helpful to set out some of my experience and that gleaned from my colleagues.
To suggest that paragraph 322 5 is straightforward would be to ignore that two Judges have asked me if I know what is “going on” with respect of guidance from the higher courts and also I had a fairly, in my view, straightforward permission application that took some 1 hr 45 minutes of argument before the Judge reserved the decision as to whether the case was arguable. It is clear that this entire issue requires clarity from the Higher Courts, equally it would be helpful to see what policies have been applied or “evolved” to deal with this issue.
However, what I can comment on, hopefully without too much hair ruffling is what we can offer at Imperium Chambers by way of Direct Access representation in these often tricky and highly emotional cases.
One of the advantages that we can offer, as I was discussing with a new client yesterday, is that we can take your case from the original application through to any appeal, if one is needed, this provides a continuity of service and enables us to build up a relationship with each client. I cannot stress how important this is. My clients yesterday informed me that they met their barrister on the day of the hearing. While this is traditionally the way matters worked, say in Magistrates’ Courts, in immigration it is always better, even if working with a solicitor that there is a conference before the hearing, ideally as soon as the refusal is issued. The reason for this is simple, a conference at the beginning can avoid bad points being pursued and good ones highlighted.
However, with Direct Access clients I often see them at an original conference, which is essential tor both parties so as that they can assess each other, then they will be seen throughout the process, and before the hearing, where any issues can be dealt with and hopefully confidence can be instilled.
I have found that where a case is taken from the very beginning through the evidence gathering and advice stage through to the appeal that there are greater prospects of success. For example in the case of Khan guidance has been provided as to what is expected of Applicants where there are tax discrepancies and where the accountants are at fault. I have seen some horrific letters from accountants in other cases where I have not had any detailed involvement where the accountant says that the error was a “clerical” one. As a Upper Tribunal Judge commented, a clerical error is the incorrect spelling of a name, not forgetting to include £20,000 or so of fax. In cases where I and my team have dealt with we have urged the client to go back to the solicitor and to provide a detailed explanation.
The best example I can give of a case seen from beginning to end is where the appeal is allowed at the end of the hearing, now while it is true that the determination is not valid until sent, it is obviously a huge relief for the Applicant and their family to be told, often after waiting 3 years that their waiting is over and that they can plan for the rest of their lives.
One of the real tragedies is that I have had clients who have put the starting of family life on hold pending the outcome of what should be a simple application and equally sadly where family members are ill at home but they are unable to travel.
Having said all of the above, if you have a good solicitor you are likely to be in good hands and I have had cases that have been prepared as well as anything I can do by a few solicitors recently. It really is a question of who you feel happiest with.
I hope the above is of some use, in short, I would remind any client that they are the customer and that in matters such as immigration ideally clients should be as informed in any other area of law, and have the opportunity to engage with and offer their advice and opinion to their lawyers. Indeed I have been as surprised at the depth of knowledge of some clients as well as the lack of knowledge, usually due to poor communication of others.
Paul Turner is a highly regarded direct access immigration barrister who is the Head of Imperium Chambers 2 Selkirk Road London SW17 0ES and who is licensed to provide direct legal advice and to litigate to member of the public. Please feel free to call on 020 7242 3488 or email firstname.lastname@example.org