ECDN RESPONSE TO PROPOSED CUTS IN LEGAL AID TO THE MOST VULNERABLE
Dear Secretary of State
We write on behalf of the campaign organisation, End Child Detention Now (ecdn.org), a citizens’ initiative that has been closely involved in the campaign to end the detention of children in the immigration system in the United Kingdom.
As part of our submission to the Home Office review on child detention that was initiated by your colleague Damian Green, we explained that any scheme which aimed at improving the treatment of asylum seeking families must have proper regard to the provision of good quality legal advice at each point of the asylum application process.
The availability of adequate legal advice and representation to those seeking the protection of the United Kingdom is an obligation under our international treaty agreements and human rights legislation as the consultation paper acknowledges in 4.37-4.42. In section 4.38 of the document you say that
Legal aid currently funds Legal Help and Representation on issues relating to asylum. This includes legal advice for nearly all asylum applicants at the application stage, representation for most asylum appeals before the First-tier and Upper Tribunal (Immigration and Asylum Chamber), and advice on appealing to higher courts.
However, that has not been the experience of many of the asylum seeking families with whom we are involved in the York area, or of our fellow refugee advocacy organisations around the country.
In the case of a 2 year old boy who was detained with his mother and father for over a fortnight in Yarl’s Wood Immigration Removal Centre as recently as 2009, we had to telephone 31 separate solicitors and legal advice providers before we could find a legal representative for the family. Thanks to the legal intervention that we were able to secure they now have indefinite leave to remain, and the boy is a British citizen.
There are many hundreds of families and individuals who, even under the existing system, have no opportunity to make a proper asylum claim because the number of firms and charities who are able and willing to provide immigration law representation under the current Legal Services Commission funding arrangements has fallen off dramatically.
For example, the collapse of Refugee and Migrant Justice has been a disaster for those organisations like us, based outside of London, which often need to find emergency, expert legal help to assist a family issued with removal orders but now we are frequently unable to find even a single practitioner to take on a case unless it can be privately funded.
In short, many of the families with who we are in contact face a Catch-22 situation. They have often had their initial claims refused due to non-existent or incompetent legal advice, and consequently they face destitution as ‘failed asylum seekers’. Forbidden from the right to work and without recourse to public funds their only hope of being able to submit an appeal which might help to expose the flaws in the initial casework decision or poor quality representation is to find a legal aid lawyer in their immediate vicinity. This is rarely possible because in York and in many other parts of the country outside London there are no sources of free qualified immigration law advice. Instead such families have to rely on charitable help for the funds to travel often-considerable distances to find an advocate.
As a consequence of the proposed reforms, we anticipate that the few remaining providers of publicly funded legal services to refugees and asylum seekers will have to withdraw from this area of the law. Local authority funded legal services are also on the point of collapse and the Citizens Advice Bureaux (which in any case often lack case workers qualified to provide specialist immigration advice) are massively reducing the services that they are able to offer the public due to cuts to their budgets.
A particular concern that we identify is the proposal to discontinue funding for Article 8 claims (even in the First Tier of the Immigration Tribunal). The idea that individuals who for immigration purposes wish to make an Article 8 claim, including even young children, can represent themselves against experienced Home Office Presenting Officers before a judge and understand the intricacies of the relevant statutes and case law is simply untenable.
In many cases the appellant may not have adequate English skills and will have to rely on an interpreter—presumably at the potentially destitute appellant’s expense. It must be obvious that in these circumstances the ‘equality of arms’ principle, which the European and British courts have accepted as fundamental to the administration of justice, would be fatally undermined.
The injustice of the proposed reform is further compounded by the proposal to remove all opportunities for public legal assistance where an asylum seeker is appealing against a decision to deny support under sections 4 and 95 of the Immigration and Asylum Act 1999. Families applying for support under this legislation are doing so on grounds of destitution and there are often serious safeguarding issues involving children to which local authorities must pay due regard. It cannot be right that a public authority should be able to avoid a challenge to a potentially perverse or unlawful decision simply because the individual or individuals subject to that decision do not have the means to challenge it.
In conclusion, we support the view expressed by the late Mr Justice Hodge, then President of the Asylum and Immigration Tribunal, who told the Constitutional Affairs Select Committee that
(The AIT) and its judges, whenever they have been asked, have always said that we value representation and we want as many people to be legally represented as possible, and whenever we discuss these matters with the Legal Services Commission, which we do periodically, that is entirely what we say….—the change in representation has been very much driven by the Legal Services Commission’s worries about the total cost of their budget rather than anything to do with us
The Deputy Prime Minister, Nick Clegg, rightly said that in relation to the care of children under immigration control we need to effect a ‘culture change’ in the Home Office. Such a culture change would mean that those who seek asylum in this country are not automatically disbelieved, but are given a genuine, professional and fair hearing and ample opportunity to present their case through a qualified and well-prepared advocate. Numerous judges and Home Affairs Select Committee reports have found that the UK Border Agency is needlessly generating expensive legal appeals because of inadequate and inconsistent decision-making.
By ensuring that early, good quality legal advice is available to all asylum seekers, the downstream savings in terms of lost Home Office appeals, expensive arrest and detention bills, and large compensation claims will more than offset the savings that the Legal Services Commission expects to make by further restricting access to justice for some of the weakest and most vulnerable members of our society.