In the Ministry of Justice’s ‘Transforming Legal Aid’ consultation, which was published in April 2013, a residence test was proposed for foreign nationals.
This would prevent people who do not have leave to remain in the UK, and have not been living here lawfully for at least 12 months from accessing legal aid. This residence test is likely to be unlawful and will certainly be unworkable in practice, as many organisations who submitted their views to the Ministry of Justice laid out in detail.
BID has submitted evidence on this issue to both Ministry of Justice consultations on legal aid reforms this year, and more recently to the Joint Committee on Human Rights’ enquiry into the legal aid cuts. We have produced briefings for the Labour and Liberal Democrat Party Conferences, and for parliamentary debates on legal aid.
Back in June BID asked the Ministry of Justice at a roadshow whether the residence test would apply to immigration detainees and was told that it would. Now the Ministry of Justice has announced that there will be an additional exclusion to the residence test, saying in ‘Transforming Legal Aid: Next Steps’ that
“The test will …not apply to categories of case which broadly relate to an individual’s liberty”.
While this leaves applications for release on bail or temporary admission within the scope of legal aid, it is the intention of the Ministry of Justice that civil claims brought by former detainees in which they seek to challenge the legality of their detention, the conditions of their detention, or their treatment in detention, will engage the residence test if the challenge is mounted after they have been released. This will have the effect of putting the treatment of foreign nationals held in detention beyond challenge, except by individuals with significant financial means.
Civil claims for false imprisonment, inhuman or degrading treatment, assault by a custody officer or escort contractor, and unlawful removal from the UK will all now be subject to the residence test for detainees who are reliant on legal aid.
