Solicitor Rubin Italia argues that the Home Office’s announcement of a task force to root out “crooked” immigration lawyers suppresses genuine legal challenges.
Rubin’s article was published in Solicitors Journal, 1 September 2023, which can be found here.
The UK government recently launched a taskforce to root out “crooked” lawyers, after reports emerged of false asylum claims being submitted. The government’s announcement provoked strong criticism from the Law Society and other legal groups.
Despite the novel branding of the Professional Enablers Taskforce, critics pointed out that it had already existed in unnamed form for many months. They believe that the recent fanfare around the so-called ‘new’ initiative was simply intended to deflect from the government’s own struggles to tackle the rising numbers of small boats crossing the English Channel and the growing backlog of asylum claims.
By focusing on the malpractice of a tiny minority of lawyers in relation to immigration law, the government risks tarring all legal professionals with the same brush, undermining faith in the legal system and in the integrity of immigration lawyers. The move to announce the taskforce and the justification for its launch is, according to the Law Society, part of a years-long effort by the government to attack individual lawyers and immigration law itself, in a nakedly political attempt to appeal to anti-migrant voters.
David McNeill, the Law Society’s director of public affairs, spoke recently to BBC Radio 4’s Today programme about the government’s announcement: “This taskforce which they tout with such aggressive language has been in existence for months now so really from our perspective it just looks like a bit of lawyer-bashing as a distraction from really bad news for the government on the number of asylum seekers now accommodated in hotels – 50,000.”
All solicitors, including those that practise immigration law, are very tightly regulated by the Solicitors Regulation Authority, as well as the Legal Aid Agency, and existing guidelines are more than enough to root out the majority of rogue lawyers practising. The policy and taskforce seek to justify the government’s attack on legitimate lawyers, who they hold responsible for challenging a number of their own policies, including the Rwanda asylum scheme and the Illegal Migration Bill (now an Act), feeding false optics against lawyers while preventing genuine legal challenges.
Most good solicitors do not want rogue ones working in the profession and to that limited extent the objective to root out bad lawyers is to be applauded. However, the narrative deriding “woke lawyers” and other similar remarks from present and recent home secretaries goes further than just seeking to rid the profession of a handful of bad apples. Instead, the government seems intent on crushing dissent from legal circles and using a campaign of intimidation to silence critics of its policies, whether such challenges come via the press or through the courts.
A recent example of the government’s briefing against critics of its asylum policies surfaced in the press in early August. Jacqueline McKenzie, head of immigration at Leigh Day and a partner of the firm, had been vocal in her objection to governmental migration policy, writing a series of articles outlining her views on the subject. In response, the Conservative Party compiled a dossier on McKenzie, sending the briefing to several newspapers and urging them to write disparaging articles about her and her colleagues.
Headed “Revealed: senior Labour adviser is lefty lawyer blocking Rwanda deportations”, the document highlighted McKenzie’s links to the Labour party and her immigration work on behalf of individuals threatened with deportation from the UK. The misinformation contained within the dossier revealed how far the government is prepared to go to discredit perceived critics, and to influence the public’s faith in the legal system and those practising within it.
The briefing against McKenzie “crosse[d] a line”, according to the chair of the Bar Council, who upbraided the Conservative party’s attempt to “rubbish somebody based on [that person’s] political position”. In response, the Conservative party claimed that lawyers should not be “exempt from criticism”, and attacked those it said had engaged in “abusive late legal challenges to frustrate removals”.
However, in McKenzie’s case the effort was clearly a character assassination based on misinformation rather than fact, and the government’s willing partners in the press bear equal responsibility for amplifying the lies about her and her colleagues practising in the immigration law field.
Given the febrile nature of the nationwide debate around immigration, it was scant wonder that McKenzie found herself subject to abuse following publications of articles based on the briefing note. She reported death threats “from people who clearly know where I live”, and was forced to hire a security company for advice on staying safe in her home.
Former Conservative Attorney General Dominic Grieve called out the government for its “degrading of the discourse”. While he said he was sympathetic to some of the government’s frustrations around immigration in general, “it does not justify launching culture war attacks when they are completely misplaced”.
The Rwanda case referred to in the McKenzie dossier was heard by the Court of Appeal as a result of a legal challenge to the current government policy to process asylum seekers in Rwanda and, if accepted as refugees, to settle them in the country thereafter. Judges found by a majority of two to one that there were serious concerns over sending individuals to Rwanda for processing and found that the government policy to do so was unlawful.
This, and other, recent defeats over controversial migration policies demonstrate that, despite its recent passage into law, the government’s policy to “stop the boats” is unworkable at present and will remain so until the case finally reaches the Supreme Court and is ruled upon. At the same time, while the government has manufactured “safe routes” for Ukrainian citizens to enter the UK, they have not extended this legal route to refugees from other conflict zones, such as Afghanistan, Iraq and Syria, This creates a two-tier system built on discrimination.
The government is also currently reeling from high-profile embarrassments such as the Bibby Stockholm barge, which saw the government’s plan to house asylum seekers on a housing barge off the Dorset coast descend into farce over the course of the summer. Vehemently challenged by campaigners on the basis of the barge’s seemingly inhumane conditions for asylum seekers, the government remained steadfast in its determination to deploy the initiative, and eventually began sending the first asylum seekers aboard in August. Four days later, those on board were forced to disembark due to the discovery of deadly Legionella bacteria in the barge’s water supply, highlighting the Home Office’s poor planning and scant regard for safety when rolling out the plan.
The government’s frustration at criticism over its handling of cases such as the Bibby Stockholm and the challenge to its Rwanda policy, as well as its failure to win over voters with its stance on immigration, is palpable, spurring ministers on to adopt an increasingly draconian stance towards the issue of migration. In the wake of the failure of the recent ‘small boats week’, in which ministers laid out yet further tough measures in relation to asylum and migration, it is likely that the Home Office will double down on its attempt to castigate those perceived as sympathetic to migrants and asylum seekers. As such, all too familiar caustic rhetoric will continue to be aimed by politicians at the legal profession, and public confidence will be further damaged as a result.
Instead of taking serious measures to tackle the ever-growing problem of small boats crossing the Channel, all that the government appears to have done by way of collaboration with its European peers is to make payments to the French government in the hope that extra security on the French side may reduce the numbers. At present, and as had been predicted by many, this policy has been an abject failure, with thousands of migrants still entering the UK each month via small boats crossing the English Channel from France.
The criminal gangs who facilitate the boat crossings have not been sufficiently targeted to be deterred from assisting the asylum seekers in return for extortionate fees, and until their activities have been disrupted and the traffickers brought to justice, there is little reason to believe the government’s promises to end the small boat crossings anytime soon.
However, ministers’ ire has, of course, been unable to influence the courts’ decisions over various migration cases brought before the bench, thanks to the robust independence of the judiciary. Recent successful legal challenges, such as the Home Office’s use of hotels for unaccompanied child asylum seekers being ruled ‘unlawful’ by the High Court, are the precursors to an expected deluge of future actions to be mounted over the legality of the government’s migration policies. These policies will continue to be challenged on the basis that they unlawfully contradict existing provisions.
The recent declaration by the courts that the government’s policy of housing unaccompanied child asylum seekers in hotels was illegal dealt yet another blow to the Home Office’s strategy for dealing with migration. Authorities keeping child asylum seekers in such conditions was deemed a breach of legal duties of care to all children who are required to be looked after, regardless of their immigration status. NGOs had long highlighted the risks attached to housing unaccompanied children in such a fashion, noting that hundreds of child asylum seekers had disappeared from their hotels, with many presumed kidnapped and forced into modern slavery or subject to human trafficking.
Concerningly, the government has also previously indicated that its flagship Illegal Migration Bill may not be compatible with the European Convention on Human Rights, which seeks to uphold principles such as freedom from torture, and it is vital that legal challenges to this legislation are considered and understood – rather than simply dismissed. However, those who express concern about liberal interpretation by the courts and lawyers regarding such measures must remember that the UK remains a signatory to the Geneva Convention, which seeks to assist asylum seekers wherever they are from, and as such must always abide by its rules regardless of any domestic bills passed.
When claiming refuge, there is no requirement under the Geneva Convention that refugees arrive legally and, as such, asylum seekers who do not arrive via legal channels should not be vilified or considered illegal migrants. The government’s insistence on legal means of entry fails to consider that persecuted refugees often do not have the means to make legal immigration applications or obtain visas, or are unable to do so for security reasons. Making legal applications may also risk alerting authorities in many refugees’ home countries where they face persecution, making this an impossible option for many asylum seekers.
The Illegal Migration Bill eventually found a path to becoming law in July, following a series of challenges both in the House of Commons and the House of Lords, and after having to be watered-down in several areas in order to garner sufficient support to be finally sent on for Royal Assent. While supporters of the Bill took short term succour from their belated victory, even they are aware that the Bill is unlikely to prove effective when it becomes law, due to the inherent incompatibilities with the likes of the Geneva Convention and other overriding statutes to which the UK is beholden.
The government’s repeated mishandling of the asylum and migration issue shows no sign of abating, and in the absence of serious efforts to rethink and reframe its policies, base attacks on perceived opponents have become the order of the day. The focus of the Home Office should be on tackling the enormous backlog of asylum cases and using its resources to provide safe and workable immigration policies – not demonising those lawyers who act lawfully to challenge controversial policies.
21 Sep 2023