Immigration: Good faith obligation should be placed on state too
Government plans to impose a ‘good faith’ requirement on immigration lawyers have been strongly attacked by the Law Society, Bar Council and Immigration Law Practitioners Association (ILPA).
The Legal Services Board (LSB) also stepped in, saying the requirement was unnecessary and could prove difficult to enforce.
The Home Office’s New Plan for Immigration, published in March, included a proposal to develop “a ‘good faith’ requirement setting out principles for people and their representatives when dealing with public authorities and the courts, such as not providing misleading information or bringing evidence late where it was reasonable to do so earlier”.
The Law Society said it “opposes in the strongest possible terms any implications that our members can be assumed not to practice in good faith already, a claim which is damaging not only to the profession but to the vulnerable clients whom it might deter from seeking advice”.
The society said its members were already “subject to an extremely rigorous regulatory regime by the Solicitors Regulation Authority (SRA), which includes duties to the court and duties relating to integrity”, while the Legal Aid Agency provided “further means of scrutiny and oversight”.
The society added that “no explanation or evidence has been provided” for why “this existing high level of oversight” was inadequate.
The Bar Council said that, so far as its membership was concerned, barristers were “required by their regulatory code to act with honesty and integrity and owe stringent duties to the court” as well as being regulated by the Bar Standards Board.
“Other than signalling a distrust of legal advisors, imposing a good faith requirement on regulated legal professionals would add nothing to existing regulatory regimes. Doing so in one jurisdiction and not others is particularly objectionable.
“So far as individual applicants are concerned, a requirement of good faith is inbuilt to the system at every stage.”
ILPA said that where the new requirement applied to legal representatives, as opposed to applicants, “such professional obligations already apply”.
It argued that any duty of ‘good faith’ should apply not just to applicants and their lawyers, but to the state.
“The state should undertake to do its utmost to assist the applicant to make his or her asylum claim effectively, to safeguard the applicant’s welfare, to uphold the norms of international humanitarian law and to communicate its decisions to the applicant at the earliest possible opportunity (rather than serving them at the last minute, often shortly before removal flights).
“If the state breaches these duties, judges could be directed to give less weight to the Home Office’s evidence in asylum appeals.”
The LSB said that while there was “some anecdotal evidence” of quality problems, a ‘good faith’ requirement on legal representatives would “duplicate existing obligations and is therefore unnecessary”.
The best way forward “may be to focus on improving enforcement” of existing rules.
The LSB said its review of continuing competence had “identified immigration and asylum as being among the high-risk practice areas where there is evidence of actual harm to consumers”, while the SRA was “considering sector-specific competence statements or requirements” in areas such as immigration and advocacy.
“While there is some evidence of quality issues in this area, and judicial concern about individual cases has been reported in the press, this is largely anecdotal.”
The LSB added: “In short, the best way forward may be to focus on improving approaches to ensuring compliance with existing regulatory requirements, on which there is already work in progress, rather than creating new rules that may prove difficult to enforce.”
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