ILPA: Proposed legal aid cuts: Why and how to resist them
The following document is a publication of the Immigration Law Practitioners' Association (ILPA):
ILPA Lindsey House, 40/42 Charterhouse Street London EC1M 6JN Tel: 020 7251 8383 Fax: 020 7251 8384
email: info@ilpa.org.uk website: www.ilpa.org.uk
THE IMMIGRATION LAW PRACTITIONERS' ASSOCIATION LTD IS A COMPANY LIMITED BY GUARANTEE, REGISTERED IN ENGLAND AND WALES
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ILPA
IMMIGRATION LAW PRACTITIONERS' ASSOCIATION
PROPOSED LEGAL AID CUTS: WHY AND HOW TO RESIST THEM
The Ministry of Justice is consulting on cutting the Legal Aid budget by £350 million. The consultation can be found at www.justice.gov.uk/consultations/legal-aid-reform-151110.htm The deadline for responses is 14 February 2010.
WHAT CAN I DO?
• Respond to the consultation. But do not wait for 14 February, send a letter with your headline concerns to the Minister before the end of the year and follow up with more details later.
• Encourage others to respond, to ensure a range of voices are heard – those giving advice are likely to be perceived as advocating out of self interest. Just as valuable as talking to those who give legal advice to people who are poor, is talking to others who are, or who work with, or are concerned about, people who are poor, ensuring they understand the arguments and encouraging them to speak up. There are many perspectives – those who provide material support who are aware of the important of advice, those who do pro bono work and understand why it cannot fill the gap, those who do private work in immigration and can speak for the complexity of this area of the law with no allegation of self-interest. These voices need to be heard – but are unlikely to be raised without your explanation and encouragement.
• Provide examples of real cases to all those who are advocating, or whom you urge to advocate, to protect legal aid. It is individual accounts rather than abstract arguments, that engage people.
THE CUTS PROPOSED TO IMMIGRATION AND ASYLUM SUPPORT LEGAL AID
It is proposed to remove all legal aid for immigration (as opposed to asylum cases) cases. Legal aid would be cut for both the stage of applying to the Home Office and any appeals. These include cases where arguments are based on the right to family and private life under Article 8 of the European Convention on Human Rights and where the person faces deportation from the UK. The exceptions would be that people in immigration detention would still get legal aid to challenge their detention (although not to help with their immigration cases) and national security cases before Special Immigration Appeals Commission would still get legal aid. It is also proposed to cut legal aid from asylum support cases (applications housing, subsistence). In addition there are cuts to other areas of legal aid that will affect poor migrants and refugees, as they will affect all who are poor. It is proposed to reduce the group entitled to legal aid by requiring them to demonstrate greater poverty than they must demonstrate at the moment.
There are exceptions for claims against public bodies involving significant human rights issues and also where a Government department has done something particularly wrong. These are stated to be for use only exceptionally, although at first sight the vast majority of immigration and asylum support cases appear to fall within one or more of these exceptions. While it is clear that it is intended to fund cases of people who are poor and face domestic violence, it is unclear whether immigration cases involving domestic violence will be funded. Rules exist to allow those whose relationships break down because of domestic violence to remain in the UK, in an effort to ensure that people do not stay in abusive relationships because they fear removal. These rules provide essential protection.
ARGUMENTS AGAINST CUTTING LEGAL AID IN IMMIGRATION
ILPA's expertise is in immigration law. Many of these arguments will apply to other areas of law also.
Legal aid is an insurance policy against abuse of power and incompetence
Legal aid is the State's insurance policy that laws that affect poor people are put into effect in the way intended. Government departments are powerful, those who are affected by their decisions and are poor are not. Legal aid is an essential safeguard against inequality of arms and also serves to maintain scrutiny of those Government departments. This latter is about justice, but it is also about money – scrutiny is one way to try to ensure that departments spend their money doing what they should and do not waste it.
The real cost savings lie in implementation of the "polluter pays" principle
If the Government really wants to save money then rather than looking to the legal aid budget it should look to the departments making the decisions. If a department wants to pass lots of laws (in immigration there have been Acts of Parliament in 1993, 1996, 1999, 2002, 2005, 2006, 2007, 2008 and 2009, plus many more regulations and rule changes) or change procedures, it should meet the costs of these for the legal aid budget and the court system. If it passes laws in haste, or implements new procedures, without thinking them through, it should meet the costs generated for legal aid and for the courts by those bad laws. If its poor decision-making and delay leads to challenges, it should meet the costs to the legal aid system and to the courts of those challenges. If its conduct of any litigation arising out of a case causes costs, it should meet those costs. The UK Border Agency does implement laws and procedures in haste, is notorious for its delays, and has been heavily criticised by the courts for both poor decisions and its conduct in litigation. When asked by ILPA in a freedom of information request what it spent on litigation, it replied that it did not know, and suggested we ask Treasury Solicitors (the Government solicitors) as they might have an idea.
For ZO (Somalia) concerned the extent of an entitlement under European law for people seeking asylum to work. The Home Office (UK Border Agency) lost the case in the Court of Appeal. It asked the court to delay the effect of the judgment until it had appealed to the Supreme Court, so that it would not have to consider applications for permission to work in the meantime. The Court of Appeal said no. But the UK Border Agency refused to consider such applications. They refused even when told they would be taken to court if they did not obey the law. They were taken to court. They went on refusing, until judges of the High Court ordered them to consider the applications. They then delayed consideration, setting off new challenges. When the case came to the Supreme Court, the UK Border Agency lost. It then put in place policies which largely ignored the judgment. Insofar as the policies are lawful (highly questionable, but presumably the Agency thinks so), it is unclear why they could not have been put in place at any time. [1]
Tackling the behaviour of Government departments would result in savings not only in immigration cases, but in cases that the Government proposes should still receive legal aid funding, asylum cases, and also in cases where people do not receive legal aid but are paying their own legal costs. The savings could be huge.
Government departments are supposed to carry out legal aid impact assessments, and assessments of the effect on the courts, when they bring in new laws and procedures, to ensure that the costs are assessed and legal aid and the courts compensated. If this were done properly it would result in a lot of money flowing into the Ministry of Justice. First, there would be an incentive to decide whether it is appropriate to bring in new laws or procedures, especially in haste, with provisions drafted in haste and the worse for that. Second, there would be an incentive to improve quality. And thirdly, it is assuredly to be hoped that the Home Office's conduct as a litigant, of which the High Court has been extremely critical, [2] would improve – producing savings not only for legal aid but for the courts budget. To make savings in the Ministry of Justice, go to the UK Border Agency. Ministers say that all Government departments must make cuts, but the problem is that this is happening in silos, no department is looking at what savings it can make to another department's budget.
People's human rights will be violated
The Government recognises in its consultation paper that immigration cases involve human rights, especially the right to family and private life (Article 8 of the European Court of Human Rights). Its only answer to this is to say that people can represent themselves at appeals. These are cases about whether people are allowed to join spouses, partners and parents; about whether people will have to leave the country in which they have lived for years, sometimes for decades, leaving close family members behind. They are cases about whether a person who has fled domestic slavery can live safely in the UK away from those who abused them. They are cases about whether a person is entitled to work and can thus support themselves or to a roof over their head and something to eat. They are cases where a wrong decision, based on a misunderstanding of the evidence, threatens to change the course of a person's whole life. The law in this area is voluminous and extremely complicated. The Supreme Court, and its predecessor the House of Lords, whose work is confined to deciding the most complex points of law, has given more judgments on Article 8 in recent years than on almost any other area of law.
Add to this that those affected include people unfamiliar with UK laws and procedures, with very limited or no support networks UK, with little or no understanding of what they should be able to expect from a Government department, let alone what they get from the most labyrinthine of Government departments, the UK Border Agency. Add to this that that like any other group of people, they include those with disabilities, in profound distress, ill, elderly, young and/or with multiple difficulties in their lives and those who face racism and xenophobia. The Government says that immigration cases are about people's choices freely made. Closer examination shows that this is rarely true of those poor enough to qualify for legal aid.
Where will the cases go?
Because immigration cases are such serious cases, and because the conduct of the UK Border Agency frequently leaves much to be desired, there are likely to be many successful challenges to decisions to refuse funding under the exceptions. It is likely that many of these will go to court.
It is the case under UK law that there is a right to challenge an administrative decision against which you have no effective appeal, before a judge in the High Court (judicial review). There are likely to be many challenges arguing that unrepresented people in these complex cases have no effective right of appeal before the Immigration and Asylum Chambers in the tribunals.
There are also concerns that people who might otherwise have relied on their immigration case will claim asylum as the only way of putting for their arguments that they be allowed to stay. Would it not be easier, simpler and cheaper to provide legal aid in the first place so that people have an effective right of appeal and a chance of getting a final decision within a reasonable time?
Where will the people go?
It is a crime to give immigration advice in the course of a business whether or not for profit unless a solicitor, barrister, or registered with the Office of the Immigration Services Commissioner. So, deny legal aid and only those voluntary organsiations registered with the Office of the Immigration Services Commissioner (OISC) will be able to help. Giving legal advice to migrants and refugees is a heavy responsibility and involves getting to grips with complex laws – many voluntary organisations will feel that registering to give immigration advice and maintaining the required standards is not something they can take on. At which point, they will not be able to assist. There is already a lot of pro bono work by solicitors and barristers for migrants and refugees. For example, there is already no legal aid for asylum support appeals, and many lawyers provide representation pro bono. The pro bono Many people will go to MPs, as MPs and their caseworkers are not required to register with the OISC. There is concern that people who simply cannot manage with representation will put themselves at risk in seeking to raise money to pay for representation.
People who know little of what is supposed to happen are vulnerable to exploitation, including by those who pretend that they are qualified to give legal advice to make a profit. The best protection against bad legal advice is good legal advice, for those who cannot pay that means good legal advice funded by legal aid.
JUST ONE CASE (Name have been changed)
Alegria lived with her husband and their child in the UK. When her son was seven, the two year probationary period for marriage came to an end. Her husband refused to support her application for settlement and left her for someone else. She was left to work to support her son and mother-in-law. She held two jobs as a cleaner. Initially an application for settlement was made on the basis of a concession relating to her child's length of residence in the UK. This was returned because no fee had been paid but was not considered properly. By this time Alegria's probationary leave as a spouse had expired. A further application on the grounds of right to family life under Article 8 of the ECHR was made. It was refused, with no right of appeal because it was made 'out of time and as a result she was told that she no longer had permission to work to support her family. Legal aid was granted for a judicial review of the failure to grant a right of appeal or to consider the human rights arguments. The lawyers registered Alegria's son as British. The court granted the judicial review permission to proceed and at only at this point did the UK Border Agency settle. We also registered the son as British. We got permission, and then the Home Office settled, granting her Indefinite Leave to Remain. Without legal aid, our client and her son would not have been able to regularise their stay or remain together. She would never have been able to afford to pay for legal advice and because her situation was complex and involved High Court action, she could never have done it without legal advice.
Every client, every lawyer, every person who works with persons under immigration control has 'just one case' like this. Those cases need to be shared....
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[1] For many more examples, see www.ilpa.org.uk/submissions/menu.html, e.g. ILPA's submissions to the Joint Committee on Human Rights Review of Government's response to judgments identifying breaches of human rights in the UK, 22/10/2010 and Implementation of Strasbourg Judgments and Declarations of Incompatibility, 30/09/2010
[2] See e.g. MA (Nigeria) v Secretary of State for the Home Department [2009] EWCA Civ 1229, "The history fills me with such despair at the manner in which the system operates that the preservation of my equanimity probably demands that I should ignore it, but I steel myself to give a summary at least… What, one wonders, do they do with their time?…I ask, rhetorically, is this the way to run a whelk store?"
