BID’s latest legal survey finds only 14% of immigration detainees held in prison had legal representation

Bail for Immigration Detainees' (BID's) latest survey has found that the vast majority of people detained under immigration powers in prison continue to lack access to legal representation.

You can download the 16-page report here.

The research examines the experiences of 23 BID clients detained in 15 prisons and the extent to which measures introduced to ensure access to immigration legal advice following the High Court judgment in SM v The Lord Chancellor's Department [2021] EWHC 418 (Admin) were being implemented. BID also contacted 44 prisons and received information from nine.

Only three out of the 23 respondents, or 14%, had legal representation in their immigration case. Of those 3, two said BID had assisted them in doing so, meaning only one person surveyed had successfully secured immigration representation without BID's assistance.

The report found that 66% of respondents had unsuccessfully attempted to find a representative. Participants described difficulties including a lack of responses from potential solicitors, a shortage of capacity among legal representatives, financial costs and uncertainty about how to find a lawyer.

One respondent said: "It has proved impossible to get immigration legal advice because of lack of legal aid availability. We have tried very hard over many months." Another told BID: "I have called everyone and I haven't got an answer, nobody help me."

Some respondents reported that firms were unable to take on new cases. One respondent stated: "I've not found a solicitor with capacity to take on my case," while another said that, with assistance from a mentor and prison offender manager, they had tried "20+ firms from lists supplied by several sources."

As BID notes, the interim policies introduced following the judgment in SM v The Lord Chancellor's Department require prisons to provide people detained under immigration powers with information about legal aid, a list of local immigration advisers, access to 30 minutes of free legally aided advice, and a weekly payment of £5 to enable them to make calls.

However, BID said the results of its survey indicate that these interim policies are not being effectively implemented in practice. It found that there was limited understanding among prison staff about the HM Prison & Probation Service interim policies. Of the nine prisons that replied to BID's request for information, none explicitly stated that it was implementing all of the interim policy requirements. BID said these findings raise serious concerns.

Only four of the detainees surveyed said they had been given information about how to access legal aid. One of those respondents said the information had been received only through BID. Only six respondents, or 40%, said they had been given a list of legal advisers. Only two respondents reported receiving the 30 minutes of free legal advice to which they were entitled.

The report states: "Even when respondents were provided with information about legal aid advisers, they faced a range of challenges. Of respondents held under immigration powers, only 38% reported that all legal representatives on the list provided by HM Prison & Probation Service offered immigration services. Only 4 respondents (29%) were able to speak to someone when they attempted to call the numbers provided, and 3 of these were only to BID. 2 respondents stated that interpreting services were provided; 6 answered 'no', and a further 4 answered 'not applicable'."

Respondents said that the lack of representation had affected their ability to deal with their immigration cases. One participant said: "Because I was not able to get representation, I had to do it by myself. I wrote letters to Immigration Enforcement about reasons as to why I should not be deported." Another described the process as difficult to navigate, saying: "The whole system is complicated and not direct. It is very hard to get into contact with an immigration legal adviser."

Some respondents also reported stress and deteriorating mental health. One told BID: "I've lost all hope, I have no strength to fight anymore. My mental health - bipolar & PTSD - are at the relapse stage. There is also very little help with my mental health."

BID's report calls for an independent inspection of access to immigration legal advice in prisons, effective implementation of the HM Prison & Probation Service interim policy, and the publication of a full policy to replace the interim instructions.

Charlotte Buckley, Director of Bail for Immigration Detainees, commented: "Legal advice is often the difference between someone remaining detained indefinitely and securing their freedom. It enables people to understand their rights, challenge Home Office decisions and apply for release. For people detained in prison, where conditions are restrictive and punitive, access to legal advice is even more important. Yet our research shows that the majority of respondents are being left to navigate this alone. Rights and safeguards are meaningless without the legal advice and representation needed to exercise them. We urge the Home Secretary to address these failings and urgently implement our recommendations to ensure that people can access the legal advice they are entitled to."