Lawyers to be personally liable for unsuccessful immigration cases?

by Mike - Judean Popular Peoples Front Fri Nov 30, 2007 17:29

Surely this would be a breach of both the constitution and EU law ?

by persico Fri Nov 30, 2007 21:46

Yes Mike, a law which would make lawyers personally liable for the costs of the defendant in an unsuccessful case would be unconstitutional save in very limited circumstances. Those limited circumstances are fraud and abuse of process.

There are three constitutional issues: 1. Access to the Courts, 2. Access to legal representation, and 3. Independence of the judiciary.

There is prima facie a right of access to the courts in any justiciable matter, and while it is possible to take certain types of decision-making out of the Courts (eg. PIAB and personal injuries), the determination of legal rights by way of judicial review is implicitly justiciable under the Constitution. Any legislation which acted as a primary disincentive to lawyers to represent applicants for judicial review by way of financial penalty would almost certainly be unconstitutional.
By the same logic, positively disincentivizing lawyers from acting for JR litigants would be unconstitutional.
The awarding of court costs is an inherent judicial power, and legislation interfering with that discretion, save in very exceptional circumstances, would certainly be unconstitutional.

There is no doubt that the vast majority of JR applications on the Asylum List are very flimsy indeed and are brought with no great expectation of success and for the sole purpose of frustrating or delaying valid deportation-orders. There is no doubt that the judges are concerned at the size of the JR list and that the many meritless applications are clogging the list and delaying a hearing and a remedy to the minority of applications which are merited. The Government is also pissed-off at the amount of tax-payers' money going to lawyers representing failed asylum-seekers in applications which it sees as an abuse of the legal process.

The answer is not legislation which penalizes lawyers, but a speeding up of the JR process. Assigning another two or three judges to deal with the list of applications for leave to bring JR would mean such applications being dealt within days rather than months - thereby disincentivizing applications whose real purpose is not legal determination but frustration of imminent legal deportation.

There will always be abuses of process no matter what steps are taken. It is a price we pay for the rule of law.

by Al Fri Nov 30, 2007 23:30

The best way to do this would be too have an initial very limited review of the JR application to see if theres merit in it. That would ultimately reduce the overall time taken on these cases as most immigration matters would fall at this first hurdle.

by Anti-racist Sat Dec 01, 2007 10:55

Far from falling at an early hurdle, most cases for judicial review taken by people threatened with deportation are successful. This is because the entire state deportation process - from whether people are even allowed to make an asylum application in the first place, to the intimidation and unseemly haste used to deport people whose cases are still going through due process - is marked by unlawful actions that wouldn't stand up to any halfway impartial scrutiny.

This is not an abstract consitutional or legal issue. It is an attempt to further ratchet up the racist coercion used by the state to trample on the rights of people with the 'wrong' skin colour.

by Al Sat Dec 01, 2007 11:58

Antiracist.
Would you care to show some proof for that claim? Or are there no people being deported from this country? Makes you wonder why RAR are protesting outside GNIB all the time if everyone gets to stay.

by Observer Sat Dec 01, 2007 14:53

Whoever said that most Judicial Review Applications before the courts on behalf of unsucessfull asylum seekers are sucessfull is talking absolute nonsense. As one who actually represented asylum seekers at one stage I can say, with absolute confidence, that the majority of applications are UNsucessfull.

The majority of appplications are weak and generally result in a refusal of the courts to grant whatever order was requested.

by persico Sat Dec 01, 2007 14:53

Only a very tiny percentage of Asylum JR cases are ultimately successful in the sense that they result in a determination in favour of the applicant.

There is a certain amount of confusion here. Interim applications taken to prevent imminent deportation are frequently allowed because all that is required is a "statable" or prima facie case. When the substantive case goes to trial the result is usually to affirm the legality of the deportation. Even where the applicant wins on the point of law, the issue is usually one of procedural defect. In such cases the Minister just corrects the procedural error and then deports the applicant. Lawyers who practice in this area think the success-rate is about 10%.

I would take issue with the person who calls the asylum-process racist beyond the fact that any immigration control process is inevitably going to have to make hard decisions effecting foreigners. For example, Ireland has in recent years been the preferred place for Nigerians to make their claims for asylum. This would hardly be the case if Nigerians believed that Irish asylum-proceedures were likely to be less favourable to them than the asylum systems in other first-world destinations.

by Aragon Sat Dec 01, 2007 15:48

Interesting to note the emphasis of your concern: the lawyers.

The problem here is not 'flimsy cases', it's the restrictions and rules governing asylum applications which turn away people who desperately deserve to be allowed to stay by any decent standard of humane treatment. What offends in your exposition of the issue is the clinical way in which it disregards the human beings and their circumstances which is what this is all supposed to be about. That is why lawyers continue to represent their asylum seeking clients - because the latter are desperate to at least try and almost always for very good reasons. It would be nice to believe that the substance of the matter can be finessed out of the equation as you attempt to do, but that is not and never will be the way it plays out - not for the asylum seekers, their lawyers or the government. Also the law is interpreted in a very mean way a lot of the time - clearly deliberately so. I'ts not black and white - there is a lot of scope for subjectivity. The expense of judicial review is at least as much to do with unnecessarily severe decision-making as anything else. You speak as if it were axiomatic that because an appeal has failed that it must have deserved to have failed - and that therefore lawyers should give up on their clients more readily. Nice try - but nonsense. This is a system designed to fail as many people as possible - and the subjective element of it is the most pernicious aspect of it from the asylum seekers' point of view. That's why the JR applications are so high, too. Look to your own adjudicators for the solution to that one. This threat to asylum seekers' lawyers is straightforward intimidation - the majority of whom are dedicated and concerned professionals. If we want to talk about 'wasting tax payers money' there are about a million genuinely wasteful excesses involving subsidies and tax breaks to rich folk that we could much more usefully talk about. Wasn't it 10 billion that the government overspent on roadbuilding and is unable to account for - while dismally failing to get the job done into the bargain? Why aren't we talking about that instead of dressing up our wretched attitude to asylum seekers in sanitising legalese.

by Mike - Judean Popular Peoples Front Sun Dec 02, 2007 14:08

" For example, Ireland has in recent years been the preferred place for Nigerians to make their claims for asylum. This would hardly be the case if Nigerians believed that Irish asylum-proceedures were likely to be less favourable to them than the asylum systems in other first-world destinations."

I see .

So it has absolutly nothing to do with the fact that Nigeria and ireland share an official language ?

Of course not.

That would be silly !

by Eamonn Tynan Sun Dec 02, 2007 17:28

You are absolutely right. Of course not.

Several of the countries in West Africa, as well as the UK and US (both of which have direct air-routes with Nigeria) share the same language.

In fact, the recent bout of asylum-seeking by Nigerians has nothing to do with Nigeria and much to do with decisions made elsewhere - and a process called "displacement" (i.e. where one country closes its doors, the emmigrants move on and target other countries)

When democracy was restored to Nigeria in the late 90s the attitude of the UK to Nigerian asylum-sekers understandably changed. The preferred target of Nigerian asylum-seekers became far less accessable and Nigerians began to be fast-tracked for asylum-processing and were routinely detained prior to deportation. At about the same time UK immigration-proceedures generally were being tightened-up and Nigerians without proper documentation found themselves turned back at UK airports. Many of the Nigerian asylum-seekers arriving here in the early years of this century had come (Via NI) from the UK mainland where they had been living covertly, or as asylum-seekers. A similar process was taking place in Germany, a non English-speaking country which was the other preferred European destination of Nigerians in the early nineties

Another decision had a significant but lesser impact. In 1999 the US government cracked down on Nigerians visiting the US. It became almost impossible for Nigerians to get visas to visit or study in the US. The reason was concern over visa-abuse, drugs and fraud.

When all things were equal, so to speak, Ireland wasn't even on the radar for Nigerian emigration. In earlier times when Nigeria was ruled by a string of brutal military dictators and Ireland had a significant missionary presence in Nigeria, the numbers of Nigerians preferring to come to good ol' Ireland could be counted on the fingers of one hand - even during the Biafran war.

by Ross - n/a Wed Jun 09, 2010 21:46

I am a South African citizen legally resident in Ireland. My wife, an Occupational Therapist, is employed with the HSE and thus allowed to work. I on the other hand have to acquire a Spousal Visa before I am able to work and, quite obviously, during the present recession, have not been able to garner work as employers are not willing to wade through mounds of paper work and pay additional costs. All the while my wife's skills are utilised and abused, while her spouse is not afforded the simple right to work. So here I sit twiddling my thumbs, not even able to be paid a day's wages because of the draconian moratorium on work. Ireland, a country whose own immigrants once sought the mercy of other nations the world over, and still do, has completely and utterly failed the immigrant community in this country...It's an absolute disgrace! I wish I had never laid eyes on this god forsaken place!

by Legal Eagle. Fri Jun 11, 2010 20:35

"Lawyers who represent non-nationals in failed immigration cases may have legal costs awarded against them under controversial new asylum laws to be introduced by the Government"

Legal Costs?

It is Lawyers who charge "Legal Costs"!

You can well find that a lawyer who has legal costs awarded against him works for the very same firm of Solicititors who are awarded the costs against him.

All the Lawyers walk away with full pockets in each and every case.

The term " Poor Lawyer " is an oxymoron.
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