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Bar Council report says immigration detainees struggle to secure legal representation

Date of Publication: 
4 December 2017

Migrants are being held in detention without adequate access to the courts or legal help

Bar Council report says immigration detainees struggle to secure legal representation

04 December 2017

The Bar Council released an important report last week that finds migrants are being held in immigration detention without adequate access to the courts or to legal help.

The 61-page report, Injustice in Immigration Detention: Perspectives from legal professionals, is authored by Dr Anna Lindley of SOAS University of London and it can be read here.

In the report, Dr Lindley uses the concepts of the rule of law and access to justice to investigate the situation of people in immigration detention. The report is based on interviews with barristers, solicitors, immigration judges and other specialists. It examines how legal processes work as mechanisms for people to challenge their detention, and how detainees are able to access legal services.

As the report notes, the UK has one of the largest immigration detention systems in Europe and there is no limit on the length of time a person can be detained.

Section 3 of the report (page 19) focuses on the main legal mechanisms for challenging detention, namely bail applications and judicial review claims.

Section 4 (page 37) takes a detailed look at detainees' access to legal services. In this section, Dr Lindley finds that despite detention being 'in scope' for legal aid, the UK legal landscape is failing immigration detainees.

Bail for Immigration Detainees (BID) is quoted in the report as saying: "The whole myth of legal aid, and 'we're OK detaining people because they have access to legal remedies' just doesn't play out in practice."

One barrister told Dr Lindley: "It is nonsensical to say there is legal aid for detention, because the hurdles you have to go through to actually have the lawyer go on record and represent you and make the claim are so tedious and cumbersome that it rarely ever happens... Loads of instances of unlawful detention are going by without any applications being made."

A judge is quoted as saying that since the introduction of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO): "We see far more litigants in person. It is shocking when you consider that this is about liberty, a key human right."

Dr Lindley notes that the Bail Observation Project (BOP) found unrepresented bail applicants had only a 10% chance of success compared with 48% for represented applicants. Unrepresented applicants have also been found to cost the courts more in terms of time, transport and administration.

In summarising the problems accessing legal services, the report states: " Many people struggle to secure the free legal representation they need to challenge their detention in court. Access to publicly funded immigration advice much earlier would help many people resolve their immigration status or make plans to leave the UK, avoiding detention. The Detention Duty Advice scheme provides much-needed initial legal help to many people, and also assists many with legal representation. However, lawyers' accounts suggest not everyone succeeds in obtaining legal aid that they are entitled to, as promptly as they need. This is due to capacity problems; the increasingly rigorous enforcement of means and merits test by the Legal Aid Agency; and law firms' resulting caution. The financial risks that lawyers face in the current system favour largescale business models, which get mixed reviews from detainees and practitioners; the new LAA tender seems unlikely to change this. Use of private and pro-bono services seems to be increasing, but access to these is uneven. Outcomes for detainees without legal advice and representation are poor. Given what is at stake for individuals, much better legal aid provision is needed for immigration matters in general and particularly for everyone detained under immigration powers. Consideration should be given to 'polluter pays' measures whereby the Home Office pays costs in cases it loses."

The Chair of the Bar Andrew Langdon QC said: "The quality of decision-making by immigration officers is exacerbated by the difficulties faced by detainees in obtaining legal advice and representation. Dr Lindley found that in some areas, over 30% of detainees making a bail application before a tribunal judge do so without a lawyer to represent them.

"The complexity of immigration law is also at fault. It is a constantly shifting and highly politicised area of law, such that there is a dearth of settled case law to guide the judges. The law allows a wide degree of discretion, resulting inevitably in considerable inconsistency.

"Almost every informed commentator accepts that fundamental to the reforms required is the introduction of a statutory 28-day time-limit on detention. The UK is the only European country not to have a time limit."

Langdon added: "The UK has an otherwise well-deserved international reputation for upholding the rule of law. By not addressing problems with immigration detention, we put that reputation at risk. We expect other countries to follow the rule of law and so we must practice what we preach."

Meanwhile, Conservative MP Andrew Mitchell wrote in a piece last week on Conservative Home that Britain's immigration removal centres are "a dystopian stain on our democracy".

Mitchell said detention without limit for immigration purposes was a gross infringement of liberty.

"Ostensibly, people are imprisoned as a last resort to facilitate deportation. In other words to ensure that individuals who have failed to convince the Home Office that they have any entitlement to live in the UK do not abscond before they can be sent home. But the reality is rather different. There is no time limit on detention. We are the only country in Europe without one. Some people are imprisoned only for days, but many for months or years – the longest known to me is nine years. This is quite literally the stuff of madness. Serious mental breakdown is commonplace and mental health deterioration seems to affect all those detained. A significant contributing factor to this is not knowing how long detention will last," Mitchell wrote.

Mitchell said to be detained with no release date is itself tantamount to torture, and he called for the imposition of a time limit of, say, 28 days.