Council
The Law Society’s Human Rights Committee is to discuss the issue at its meeting tomorrow and then brief the Council of the Law Society which is meeting on Friday.
The practice direction says that the applicant’s solicitor is personally “under a professional obligation” to obtain the “fullest possible information” before drafting an application, so that all documents and facts necessary to understand the full background of the applicant’s immigration history are available to the court.
“This duty of enquiry exists to ensure that the applicant’s legal representatives can furnish the Court with the most accurate version of events possible and thereby avoid misleading the judge,” the practice direction says.
Concerns
Barristers and solicitors might have different concerns about the new rules and Mr Justice Richard Humphreys said he was willing to meet them separately to discuss the issues.
The practice direction requires a ‘statement of relevant facts’ from asylum lawyers, requiring all details to be in the main body of the submission to the court and not in the annexe.
It reads: “This shall set out in chronological order the facts relevant to the legal issues and all facts necessary for the court to understand the full background, particularly in relation to the applicant’s immigration history. Key facts proved by exhibits shall be accompanied by reference to the page number(s) in the papers where the exhibit appears.
Where a fact is disputed this shall be indicated. This shall be in the body of the submission and not in an annex. This section shall include:
(a) Full details of all protection or immigration applications made by each applicant, whether in the State or elsewhere, and outcomes and the dates of each.
(b) Full details of the applicant’s complete immigration history since leaving his or her country of origin (if applicable) and in particular identifying the total period of presence in the State and breaking down that period by reference to the precise dates during which such presence was lawful (identifying the legal basis and whether it was precarious, short-term or long term), or unlawful as the case may be, and identifying any periods during which the applicant(s) failed to comply with reporting requirements.
(c) Details of the current immigration status of the applicant(s) and the factual basis for that status (e.g., left State voluntarily, deported, illegally present, present with permission and the basis of same).
(d) If the applicant’s current immigration status arises from a marriage to or civil partnership or alleged enduring relationship with an Irish or EU citizen, full particulars of the marriage, civil partnership or relationship and its duration.
Mr Justice Kelly’s practice direction also requires “in succinct form” a procedural history of the case, including the date of grant of leave, any stays, injunctions or undertakings and any other interlocutory applications or appeals.
Hold off
Mr Justice Richard Humphreys told asylum lawyers yesterday to hold off on issuing “manifestos” until the matters had been discussed with him.
He said the directions had not come “out of the blue” and three asylum cases in 2018 had raised concerns.
Most asylum cases do not qualify for legal aid.
Clarification: this article was amended on 23 January at 17.32pm.
“In an earlier version of this article, the Gazette referred to three cases resulting in wasted costs orders. The Gazette has been informed that in at least one of these cases, no wasted costs order, per Order 99, was made by the judge involved, although the final judgment is outstanding.