A matter of days after sweeping cuts to legal aid were introduced in April 2013, the Ministry of Justice published details of further proposed reforms to legal aid in the consultation document ‘Transforming Legal Aid’.
Two of the proposed changes, if introduced as described, would remove at a stroke access to justice for the majority of immigration detainees in a manner that is shocking, practically unworkable, and it seems also unlawful.
- A residence test would mean that only those foreign nationals who have been ‘lawfully resident’ in the UK for at least 12 months would be able to apply for legal aid.
- A proposed change to funding for legal advice on challenges to government decisions via Judicial Review would transfer the financial risk of doing this work to the lawyers preparing the case unless the case made it as far as a full court hearing in the later stages. In many judicial review cases challenging the lawfulness of detention, the Home Office settles the case and may even agree compensation prior to a full hearing. None of these benefits have been recognised by the Ministry of Justice, and if lawyers cannot be paid for this work it will not make business sense for them to undertake it.
BID believes that these proposals together would have the effect of denying access to justice to lower income foreign national individuals present in the UK, regardless of their circumstances and the facts of their case. The proposed residence test will leave foreign nationals of modest means without a remedy for unlawful actions, decisions or omissions against them in the UK, but for which they can no longer obtain legal aid funding. The effect of the residence test would be to inoculate the government against any legal challenge by new arrivals in the UK – including trafficked people, survivors of domestic violence, and children. Indeed, the real effect of the proposed residence test will be to bring about a reduction in the number of legal challenges brought against the state by poor and disadvantaged people with otherwise perfectly viable cases.
People who will be at risk of losing access to justice include:
- Any one detained on arrival in the UK.
- Anyone who is on Temporary Admission or Temporary Release, anyone who entered the UK unlawfully, and anyone who has overstayed a visa.
- Detainees unable to pass the proposed residence test, who will no longer be eligible for legal aid to make applications for release on immigration bail or temporary admission, applications for damages for unlawful detention, or bring a judicial review of unlawful detention.
- People challenging their removal or deportation from the UK on the basis of their right to a private and family life, rather than on protection grounds.
- People who have been trafficked into the UK in cases where there is no viable claim for asylum. We note the entirely unreasonable recent response of the Minister to the proposed removal of legal aid from trafficked foreign nationals:
Sarah Teather: "How will the Government ensure that the proposed residence test does not leave many victims of human trafficking, unaccompanied child migrants and victims of domestic violence with no access to justice? Is there not a real danger that our attempts to look tough on immigration will leave many vulnerable people without the justice they deserve?"
Chris Grayling: "I do not think that it is unreasonable to say that if someone is going to come to this country and access public support, they should have been here for a period of time and paid taxes before they do so" (Hansard 21 May 2013 column 1042)
Refused asylum seekers who nonetheless have a strong asylum case who cannot be removed as a result of legal or practical barriers to removal to their country of origin, who under the proposed residence test would not be considered lawfully resident and will have no access to funding for further representations including fresh claims for asylum.
Foreign national survivors of domestic violence who may be rendered unlawfully resident in the UK by leaving a situation of abuse, and under the proposed residence test would no longer be eligible for legal aid to resolve their housing and subsistence matters if they have no financial means of their own.
Destitute refused asylum seekers who cannot be removed as a result of legal or practical barriers, who would no longer be able to judicially review a refusal of asylum support by the Asylum Support Tribunal.
