CO/12086/2012
CO/10583/2012
CO/11272/2012 
Neutral Citation Number: [2012] EWHC 3690 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 10 December 2012
 
B e f o r e:

SIR JOHN THOMAS
(President of the Queen's Bench Division) 

MR JUSTICE CRANSTON 
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Between: 
 (1) AWUKU (No.2)
(2) T and T
(3) BASHIR 
Claimants 
v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Mr O Ayanru (Jesuis Solicitors) appeared on behalf of the First Claimant
Mr J Arsenic (instructed by AK Solicitors) appeared on behalf of the Third Claimant
Miss C McGahey appeared on behalf of the Defendant
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J U D G M E N T
THE PRESIDENT:  Today this court is looking at cases where applications are made on an ex parte basis, but where the rules of the court and professional obligations of the lawyers have not been complied with.  
1.	There are three cases that we wish to consider, but there are two general observations that need to be set out first.
(a)	Compliance with professional obligations
2.	At the outset it seems to us important to point out that it has always been the professional obligation of solicitors and counsel, when renewing applications or making applications on an ex parte basis, to satisfy themselves that the claim being advanced is one that they can properly make.  This is particularly important and the onus on counsel and solicitors is high.
3.	Recent additions have been made to the forms used by this court, because it appeared that that professional obligation was not being followed.  The forms now require the lawyers to certify (1) on a renewal that the reasons for the refusal of permission as totally without merit have been considered and that the claim is properly arguable, and (2) on an application out of hours that the application is in compliance with professional obligations.  It should have been wholly unnecessary for this court to have so specified in its forms because it has long been accepted that renewed applications and ex parte applications should not be made in cases that are not properly arguable.
(b)	The need for scrutiny by qualified lawyers
4.	We would also observe that the applications to the court on an ex parte basis must be scrutinised diligently and carefully by qualified lawyers for the reasons we give in the third case, Awuku.  It is not sufficient for an application to be made by a case worker without scrutiny by a qualified lawyer.
Bashir
5.	In the first case (Bashir), information has been provided to us by a solicitor that the position taken eventuated from the way in which counsel had drafted matters.  In the circumstances, it would not be right or fair to proceed with the hearing in the absence of counsel.  We shall therefore ask that the matter be re‑listed as soon as convenient so we can deal with it.  It is a great pity that the matters that were going to be raised were not notified to the court in advance.  
T and T
6.	That is in contrast to one of the cases that is before us today, a case to which I shall refer to as T and T.  The claimants were both Tamils from Sri Lanka.  They made asylum applications in France, then went on to the UK and made further claims.  The Secretary of State certified the claims earlier this year on third country grounds.  The claimants applied for interim relief.  That was considered by Haddon‑Cave J, who dismissed the application as totally without merit.  The removal was stayed by Cox J that same day on two bases ‑ one relating to the family links policy, and the other to an argument under Article 15 of the Dublin Convention.  
7.	The matter then came to be considered on the papers by Swift J.  She refused permission on the basis it was totally without merit.  She pointed out that the claim under Article 15 of the Dublin Convention was misconceived.  No dissent is expressed from that view.  When a further application was subsequently made for interim relief to Cranston J, that ground was not pursued.  It is not necessary for us to enquire into why that was put forward to Cox J in the application for the stay.
8.	What is more significant is the reliance before Cranston J when the further application was made for interim relief.  On that occasion, both counsel and solicitors advanced the family links policy as a ground.  Both have profoundly apologised to this court, and for that reason the court does not name them.  Counsel has told us that he made the application without having received that part of the acknowledgment of service from the Treasury Solicitor where the position on the family links policy and its supersession by the new policy was dealt with; there was an error in a fax transmission.  
9.	Counsel and solicitors have, in a written statement which the court found extremely helpful, apologised profusely for what had happened.  The court was concerned that the application made for further interim relief had not been made in accordance with the professional obligations of the solicitors and counsel.  By their apology they recognise that they should have been aware of and not pursued the application in the light of what was said in the acknowledgement of service.
Awuku
10.	The third matter before us today is called Awuku.  We considered that on the last occasion.  What happened was briefly as follows.  In 2004 the claimant, Awuku, was given leave to enter.  In 2009 he was served with notice as an overstayer and his removal sought.  His Article 8 claim was rejected by the Secretary of State.  A judicial review was made in July 2011 on the basis of Article 8.  It is of great significance that nothing was said at all when that was made in July 2011 about the existence of a daughter in the United Kingdom.  
11.	In November 2011 an application was made to the First‑tier Tribunal and rights of appeal were fully exhausted by July 2012.  Again, nothing was said about the existence of a daughter in the United Kingdom.
12.	When Awuku was detained on 29 October 2012 and removal directions set, it appears that the new solicitors made, some days later, two applications for asylum.  The fact that the applications for asylum were being made was notified to the court in the judicial review proceedings brought on 12 November 2012.  The other ground in the judicial review was Article 8, that he had a daughter in the UK.  No explanation was given to the judge whatsoever as to why the claim in respect of the daughter had not been raised previously.  This was especially significant because the Secretary of State has informed us that Awuku told her that he had lost contact with his daughter.  Nor was any explanation given to the judge as to why the other ground upon which the removal was challenged - that Awuku had been a member of the Secret Service in Ghana and suffered, he said, the risk of political persecution – had never been mentioned.  
13.	That is accepted today by the solicitors.  They have apologised for the failure to make that disclosure.  The explanation given is that the application was made in a hurry.  It was done by an experienced caseworker, who is a trainee solicitor, without any qualified lawyer having seen the application.  
14.	As to those explanations, it is no excuse, and certainly no excuse on the facts of this case, that the firm concerned, whom we name as Jesuis Solicitors, had not set out the matters to which we have referred, namely the explanation as to why these two issues ‑ the daughter's existence in the United Kingdom and the membership of the Secret Service ‑ had not been raised before.  There had been plenty of time.  
15.	Much more serious, we think, is the fact that this application was not seen by a lawyer qualified in these matters.  It is to be expected that where applications are made to this court, firms of solicitors will ensure that their professional obligations are strictly complied with.  It is difficult to see how, in applications of this kind, that can be done without the most careful and diligent scrutiny by a fully qualified lawyer.  It is no excuse that this is dealt with by a caseworker.  The professional obligation rests upon the solicitor.  It is the solicitor or counsel who is accountable to this court for the discharge of those professional obligations.  
16.	On this occasion we accept the apology that has been tendered by Jesuis Solicitors.  We would anticipate in future that any such application made to this court is fully scrutinised by a qualified lawyer to ensure that the obligations which we have reiterated today are complied with to the fullest extent.  
17.	For those reasons we do not intend to take any further action in either of these two cases.  Because of the position in the first case, Bashir, we will hear that as soon as possible.  
18.	MR JUSTICE CRANSTON:  I agree.