Can immigration lawyers guarantee success of an application

It is often said that reputable lawyers do not guarantee success of an immigration application. This is only partially true and the answer may be somewhat different depending on whether your focus word is “success” or “guarantee”. Another factor is whether your application is made strictly under the immigration rules or require exercise of discretion; and if the latter, whether there is a published guidance on how discretion should be exercised in your circumstances.

What I mean is that if your application falls squarely under the immigration rules, and it is prepared correctly and supported by all the required evidence there is no reason why it shouldn’t be successful. Can the lawyers guarantee that it will be? I suppose, to the same extent as a train driver can guarantee that the train will reach its destination. The vast majority of trains do reach their destination, and normally we don’t factor in chances of the train not getting where they should, even if we factor in chances of delays and unexpected roadworks.

With immigration applications it is quite similar. If the application does not raise any complex legal issues, meets the requirements of the rules and provides all required evidence in accessible format, it should be approved. In our firm we have over 99% success rate in these types of applications.

Why then not 100%? Only because there were a couple of occasions over nearly twenty years of practice when the Home Office actually made a mistake and refused to correct it, not out of stubbornness but rather out of lack of care and we had to go on appeal to a tribunal.

What guaranteeing success would mean for lawyers?

Refunding the money for an unsuccessful application

It goes without saying that any reputable lawyer will refund you if the application fails due to their negligence, mistake or lack of care. Professional indemnity insurance, mandatory for all lawyers and immigration advisors in the UK, will cover this in any event. Luckily, we have never been in this situation and hope will never be, although we are all human and mistakes are possible.

A refusal of an application may be due to a mistake is on the part of the Home Office. And the Home Office extremely rarely compensates for their mistakes. Of course, the chances of a setback due to a Home Office error are low, especially if you are represented and your lawyers provide detailed legal representations explaining why your case is to be approved. Yet, sometimes there is no remedy in such situation, as neither immigration appeal nor administrative review nor judicial review provide an adequate remedy.

In legal context the word “guarantee” may sound like something akin to insurance against adverse consequences of an unanticipated outcome. There must be insurance companies specialising in it, but lawyers would hardly ever be in a position to offer anything like it.

We would normally make a complaint without charging the client for this. But sometimes, complaint is not enough. And depending on the recourse available to the client, there may be other avenues which have to be explored while a complaint is pending.

Free immigration appeals

Some applications have the right of appeal, others don’t; some have the right of admin review, others don’t and this affects the timing and procedure for setting things right. Appeals are extremely time consuming and lengthy. Some appeals take years (literally!) and all of them take months and months. There is no such thing as a free appeal. The price has to be factored in the price the client pays originally for the preparation of the application, or someone else would have to pay for this work because it is not just an extra hour or two that can be thrown in on a pro bono basis. So to be transparent about the fees we do not factor in any potential challenges to the tribunal when we don’t anticipate there would be a need for it.

I would also add that on at least two occasions the immigration tribunal awarded our clients a costs order against the Home Office. This was when an obvious mistake on the part of the Home Office should have been corrected without going to court. Our clients were awarded costs to cover the legal fees (but unfortunately there is no award for inconvenience, stress and collateral damages).

Complex legal issues in immigration applications

It is sometimes difficult to predict the outcome if complex legal issues are at stake. Legal complexity arises where an expression or a word can be interpreted in more than one way and neither the legislation nor the accompanying guidance offers a clear interpretation. Legal complexity may also arise where the guidance is more restrictive than the rule if read on its own. The guidance is written to provide clarity and sometimes to give the caseworker authority not to apply some of the requirements too strictly, but not the other way round. Where the client has to rely on the rules in contradiction to the guidance, the likelihood of appeal or other challenge to the Home Office decision is high.

Although immigration rules are extremely complex, they don’t very often raise issues of legal complexity. But sometimes, interpretation of a common everyday word may have an impact on how the rules are read. In everyday life it would be considered hair splitting and that is what some people associate with legal profession.

Guarantees and exercise of discretion

In some types of applications, the rules give a considerable scope for the exercise of discretion. Wherever you read “the application may be refused” for whatever reason it means it will not necessarily be refused but there is likelihood or a fair chance of refusal.

Sometimes, a published guidance helps to understand how the caseworker will exercise their value judgment. The published caseworker guidance documents are very important because if the guidance is not followed the Home Office may be challenged about improper exercise of discretion.

Unfortunately, the guidance documents cannot cover all possible scenarios and often we can only guess what may help shift the weight in our client’s favour.

Another difficulty with the published guidance is that it can be withdrawn or changed without notice. And it will be the guidance which is applicable on the date of the decision that will apply. In other words, we can make an application relying on a published guidance and anticipate a positive outcome, but by the time the application comes to a caseworker the guidance may be different. The rule on retrospectivity (no law should be retrospective) does not apply to policy guidance documents and the way discretion is exercised.

To sum it up, we always give the client an indication of the expected outcome. In the vast majority of cases we anticipate approval. Sometimes, we have to show the client the weaker parts of the application and explain how this weakness may affect the outcome. Sometimes, the decision will depend on how discretion is exercised and what value judgement the Home Office makes on the basis of the documents we have provided. In the more challenging cases we may say that we hope the application will be approved although the Home Office has the power to refuse it, and in which case you the client will have the right of appeal.  But in any event we will only accept your case if there is a chance we can help you win it.

And if your focus word is “success”, expected outcome of the application is as good a guarantee as you may get.

If you need the best chance of success for your application, however complex, we are here to help. Just get in touch.