Al Mahfuz & Anor, R (On the Application Of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor

This is a hearing under the court's inherent jurisdiction to govern its own procedures under what is known as the Hamid jurisdiction (see R (Hamid) v Secretary of State for the Home

Five cases issued in the Administrative Court have been referred to this court because of serious concerns about failures to adhere to proper standards in relation to the conduct of these claims by the respondent to this application, Mr Mohammed Mazumder and others working for Heans Solicitors Limited ("Heans").

The concerns were raised by the Administrative Court Office following an order of 12 April 2019 by Andrews J in Arif Al Mahfuz v Upper Tribunal ( Immigration & Asylum Chamber) and Secretary of State for the Home Department, Crown Office reference 448/2019; and a subsequent order of Andrews J dated 22 May 2019, raising questions in relation to four other cases which is it convenient to refer to as Khan No.1, Khan No 2, Alauddin and Kawser Ahmed.

Heans is registered in Warrant Crescent, Southampton but has a London branch in Whitechapel Road where the work is carried out. Its principal is Mr Mazumder. He established the firm in January 2018. He is the only fee earner apart from Mr Naser Khan, descried as "a fee earning consultant solicitor", who joined the firm in March 2018. Two of the matters of complaint, Khan No 1 and Khan No 2 relate not to Mr Naser Khan but to a former paralegal employed by the firm, Saladin Khan. He was both an employee and a named claimant in these two cases. An initial ‘show cause’ letter was sent by the court on 2

On 23 May the Administrative Court Office wrote to Heans with 14 detailed questions that arose. A response was received on 4 July with a further witness statement from Mr Mazumder on 2 July. The court has considered these matters in detail.

This was a judicial review claim, JR/5928/2018 Kawser Ahmed v Secretary of State for the Home Department. It was filed with the Upper Tribunal on 4 September 2018. The claimant challenged a decision to certify his claim under section 96(1) of the 2002 Immigration Act. A copy of the decision was not included as it should have been. This was because, as her Honour Judge Eady QC found in her order of 30 November 2018, there was no such decision and no basis for a public law challenge. The defendant had merely refused to treat submissions as a fresh claim under para.353 of the Immigration Rules. Permission was therefore refused with an adverse order for costs of £445.

The response on behalf of the firm contains a number of threads but at the heart is a submission that the court should not refer the firm to the SRA.

Mr Mazumder accepts that it was his responsibility to supervise and oversee work carried out by paralegals, case workers and other members of staff. An unqualified paralegal, Saladin Khan, acted on behalf of himself and the clients Alauddin and Mahfuz, without the knowledge and supervision of Mr Mazumder. The scope of his employment was limited to "carry out preparatory work under supervision". In this Mr Mazumder considered he was qualified. He had come across him working at a firm called Zaman, which is no longer operating. Saladin Khan then worked for AK Solicitors at a time when Mr Mazumder worked in a branch office. By 2014/15 he was working for E1 Solicitor, while Mr

So far as his involvement in the cases was concerned, Mr Mazumder regarded that any case worker, although not a solicitor, could introduce a client, but he himself always made any submissions and drafted the proceedings on their behalf.

In the case of Alauddin, although the firm had instructions to apply for permission to appeal to the Upper Tribunal, it was not instructed to appeal further. The application form which appears to have been signed by Mr Mazumder contains, he says, a forgery of his signature. He says that he was told by Saladin Khan that the grounds for judicial review were prepared by a barrister, although he was never given a name, despite requests. Heans has received no fee note, nor any communication in relation to this matter. Mr Mazumder indicates that any claim in the Administrative Court should have been approved by him as principal of the

In fact, Saladin Khan had issued the process in the Alauddin case on 24 January and he knew this by the date of this witness statement, 16 May. He accepted that what was said in this witness statement was not true.

In the case of Khan No 1 and Khan No 2, Heans was not instructed, received no fee and did not agree that the firm's name be used, according to Mr Mazumder. Until he was informed by the court on 23 May 2019, he was not aware that Saladin Khan was acting on his own behalf through Heans.

Mahfuz had instructed Saladin Khan to deal with his immigration matter in January 2018. In March 2018 Mr Mazumder prepared fresh representations to the Home Office and this was the conclusion, he says, of Heans' work, so far as Mr Mazumber was concerned. The application to apply for judicial review was dealt with by Saladin Khan without his permission. Mr Mazumder accepted that he had pre-signed the claim for judicial review,

He asks the court not to refer the case to the Solicitor Regulatory Authority because (a) the firm "rarely deals with judicial review cases", and (b) since 4 February 2019, the firm's internal process requires that all judicial review Administration Court claims should be settled and signed by counsel, and this should happen where costs are allowed for judicial review case in Upper Tribunal. He told the court that he wants to continue the firm. It involves his family and he assures the court that he will deal with all immigration and asylum work himself. He wants the chance to continue with the firm with the current good practice which he says applies.

He submits that much of what occurred took place when he was away from the office between January and April 2019 due to ill-health. Since 2 May he has been in the London office every day ensuring that judicial review challenges are all approved by him. He acknowledges that Saladin Khan should not have been able to use the firm's email account to communicate with the court in relation to the Mahfuz case without his knowledge or been in a position to use a pre-signed claim form. He says that his wife, who was acting as office manager, was deceived in relation to communications with the Administrative Court office. She has now been warned and has agreed not to allow anyone to use his email address to communicate on behalf of the firm, apart from him.

We have also seen a witness statement from Mr Naser Khan. He was engaged by Heans as a "fee earning consultant solicitor" in a contract dated 1 March 2018. The agreement is not well drafted, but it appears to provide that both Mr Mazumder and Mr Naser Khan are collectively responsible for the supervision of the firm's office in Whitechapel Road, (see the preamble in para.3). The fact that he was not an employee of the firm is made clear

His witness statement is extremely bland. He says that he prepared the judicial review grounds on behalf of Kawser Ahmed with the knowledge of Mr Mazumder. He advised his client that "there were less merits to success" and that he would get costs awarded against him if the claim were unsuccessful. He advised the client to get the grounds settled by counsel, but the client could not afford this. He was told by his client that if the firm could not deal with the application, he might be detained by immigration officials and returned to Bangladesh where he feared he would be persecuted for his political beliefs. He settled the grounds for judicial review "for the best interest of Mr K Ahmed and as per his instructions". Mr Ahmed paid the fee. He was also, as we have noted, ordered by Court Order to pay the costs.

In his oral address to the court Mr Khan said he had only ever done two judicial reviews in the last 18 months, of which the Ahmed case was the first. He said, "I made a mistake. I apologise." But he added that he was like any other case worker with no obligations to supervise others.

The explanations of what occurred in these cases reveals a common vice in this type of claim. Those who have no relevant qualifications, in this case Saladin Khan, are employed by a firm of solicitors and put in a position where they are able to advance bogus public law challenges in the Administrative Court. The supervision of Saladin Khan was, as Mr Mazumder effectively acknowledges, grossly inadequate.

Mr Mazumder was the person who was responsible for his supervision. He was the firm's principal and there was no-one else in a position of authority over Saladin Khan, despite the terms of Mr Naser Khan's contract. But neither Mr Mazumber nor any back-up system prevented an unqualified paralegal engaging in litigation on his own behalf and on behalf of others (Alauddin and Mahfuz); and he was put in a position of being able to carry on his misconduct by using the firm's email.

Unsurprisingly the claims were regarded as totally without merit. They were, in many respects, entirely bogus. As the Administrative Court Office pointed out, the claim in Mahfuz was copied virtually word for word from that of Alauddin, including the same typographical errors.

It was not only Saladin Khan who advanced wholly insubstantial claims. Mr Naser Khan drafted the claim on behalf of Kawser Ahmed that he appears to have known had no prospect of success and which was entirely misconceived. As I have noted, the Secretary of State had merely refused to entertain "fresh claim" submission under para.353 of the Immigration Rules.

Immigration and asylum law is potentially complex and those who practice in this field

The impression one gets of Mr Mazumder is of a semi-detached principal who was content to allow those whom the firm employed and its consultant to do anything that the client wanted until such time as the court drew his attention to what was going on. To the extent that his ill health contributed to this, he failed to establish systems that could and should have prevented it.

I have no doubt that this is a proper case for referring the case to the SRA for the reasons set out above for a full investigation, accompanied by the entire court files and I would so order.

I agree.

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