Written evidence submitted by Detention Action (LAI 0029)

The proposed introduction of a residence test for civil legal aid claimants

1.      Limiting legal aid to those with a strong connection to the UK will allow the government to violate the rights of migrants with impunity, ending Britain’s tradition of quality legal representation and justice for all.  Without access to legally aided representation, migrants with overwhelmingly strong cases will not be able to bring them.  This undermines the rule of law, as public authorities will be able to violate rights with impunity.

2.      The residency test discriminates against non-citizens.  Access to justice is a universal right and constitutional principle, which should not be limited to the lawfully resident.  In an adversarial immigration system, it is vital that there should be equality of arms between the government and individuals.  Public authorities will continue to be represented in all litigation by lawyers, at public expense.  The integrity of the system requires that migrants have access to legal advice. 

3.      The government has responded to criticisms of the impermissibility of removing legal aid from migrants in detention by introducing an exemption for challenges to immigration detention.  However, this does not remove the risk of a culture of impunity, in which irregular migrants’ rights can be abused in a variety of ways without possibility of legal redress.

4.      Migrants in detention are placed in a highly vulnerable position, deprived of their liberty without time limit in a carceral environment, often administered by contracted private companies.  The recent allegations of sexual abuse of women detained at Yarl’s Wood Immigration Removal Centre highlight this vulnerability.  The proposed changes would prevent victims of abuse from accessing legal aid to challenge failures to investigate or to seek compensation for harm done.

5.      The most vulnerable migrants also frequently require legal aid in order to secure access to appropriate accommodation and support outside detention.  Migrants in detention have the right to “Section 4” bail addresses from the Home Office, in order to apply for bail and seek their release.  However, the Home Office frequently acts unlawfully in refusing to provide addresses, or delaying for periods of many months. Without access to legal aid, migrants in detention could be unlawfully deprived of bail addresses, and the ability to challenge their detention, with impunity. 

6.      Migrants with mental or physical health conditions, for whom standard Section 4 accommodation is inappropriate, often have the right to support from the local authority.  However, in our experience, local authorities rarely accept responsibility for housing and supporting migrants in detention without threats of judicial review from specialist lawyers.  The proposals would prevent these most vulnerable of migrants from defending their rights to appropriate accommodation and support, risking protracted detention or release to inappropriate conditions.

7.      Under the proposals, migrants who have been released from detention will no longer be able to challenge the lawfulness of their detention and make claims for compensation.  The Home Office has repeatedly been found by the High Court to have detained migrants unlawfully.  The Home Office paid out £3 million in 2008-09 and £12 million in 2009-10 in compensation and legal costs arising from unlawful detention actions.[1] For example, in the case of Sino,[2] a migrant was found to have been detained unlawfully for the whole of his four years and eleven months in detention.  The proposals would leave migrants whose rights have been breached unable to access the courts.

8.      In addition, the residence test is unworkable.  It will require solicitors in other areas of law to act as immigration officers and determine complex questions of lawful residence.  The Legal Aid Agency will face a significant administrative burden in determining whether lawful residence has been sufficiently evidenced.   In some cases, the question of whether the person is lawfully resident is precisely the issue at stake in the litigation.  This will lead to satellite litigation about whether someone is lawfully resident.  Lawful residents who are entitled to legal aid will be wrongly refused by risk-averse non-specialist lawyers who cannot afford the risk of not being paid.

9.      There will be an increase in litigants in person, at great cost in terms of court time and the efficient administration of justice.  The courts will be filled with poorly argued and prepared cases, which take significant additional time to deal with.  The additional costs to the courts are likely to exceed the savings on legal aid.

The proposal that providers of legal services in applications for judicial review against public bodies should only be paid for work done on the case if the Court grants permission.

10.  Judicial reviews are a crucial safeguard against the unconstrained power of the state.  The proposals will make judicial review work financially unviable in the majority of cases, as large amounts of work will be ‘at risk’.  Given the precarious financial situation of legal aid immigration firms even prior to these proposals, immigration judicial reviews will in general no longer be brought under legal aid.  As a result, people with strong cases will be unable to access justice.

11.  The Government has accepted that the original proposals would have targeted meritorious cases where permission is not granted because the case settles prior to reaching the court.  In response, it has introduced a concession whereby the Legal Aid Authority (LAA) would have discretion to pay providers in certain meritorious cases where the provider has been unable to secure a costs order as part of a settlement. 

12.  This concession fails adequately to address the disincentive created by the proposals to bring meritorious judicial reviews.  Pre-permission work on judicial reviews remains ‘at risk’.  The criteria by which LAA are to assess whether to make a discretionary payment are narrow, and clearly drafted so as to minimise the number of such payments.  The inadequacy of a safeguard based on LAA discretion is highlighted by the assurances given during the passage of LASPO that LAA would grant exceptional funding where necessary in Article 8 cases.    Research shows that by July 2013 only 233 applications had been received, compared to an expected 5,000 to 7,000 applications, by July 2013 only 233 had been received, and only six had been granted.[3]  Moreover, the substantial numbers of cases in which the defendant settles before the judicial review is issued would not be eligible for discretionary payments for the, often substantial, work done.

13.  The concession also fails to address the objection that even strong judicial reviews correctly brought inevitably involve a risk of refusal of permission.  We frequently see important cases involving our clients refused permission initially, yet go on to succeed.  Given the narrow profit margins involved, solicitors will be unable to carry the risk of a significant proportion of their judicial review work going unpaid.  Given that they will be unable to accurately determine in advance which cases will not be paid, the logical conclusion will be not to bring any of the cases.  Lawyers who continue to perform their professional duty to their clients, working to a high standard, will frequently go unpaid.  This is not a viable business model.

14.  The Ministry of Justice document “Judicial Review: proposals for further reform” contains new proposals to narrow access to judicial review, in particular by altering the approach to standing to prevent civil society organisations from bringing judicial reviews in the public interest.  These proposals would effectively prevent the vast majority of civil society bodies from accessing the courts in the public interest.  This would be a grave restriction on the effective functioning of a democracy.

15.  The consultation provides virtually no evidence to support the proposals; almost all evidence provided in fact undermines the case for the changes.  The consultation notes that judicial reviews have a higher success rate than other judicial reviews, with a final allowed rate of 12%, against 1% overall.  They also amount to 0.05% of total judicial reviews.  Yet the consultation concludes, without evidence or statistics, that the wide approach to standing has tipped into allowing judicial reviews to be used to seek publicity.

16.  The alternative approaches to standing suggested in the consultation document would all exclude the vast majority of civil society organisations litigating in the public interest.  These include vital cases that test principles that cannot be considered through individual litigation.  For example, in the Medical Justice case in 2010[4], the High Court quashed the Home Office policy whereby foreign nationals could be removed from the UK with little or no warning and without access to justice.

17.  The consultation also proposes to prevent the courts from issuing Protective Costs Orders where the litigant has a private interest or stake in the case.  It also considers whether, if “political and campaigning” judicial reviews continue to be brought, there should be no availability of Protective Costs Orders. 

18.  The cumulative impact of these proposals would be to prevent virtually all public interest litigation.  Organisations without a direct private interest in the case would be prevented from bringing judicial reviews, or alternatively would be prevented from seeking Protective Costs Orders.  Organisations with a private interest would be deprived of Protective Costs Orders.   Without Protective Costs Orders, only the largest charities and NGOs would be in a position to even consider bringing litigation.  Organisations of the size of Detention Action would be arbitrarily excluded from going to the courts in the interest of their beneficiaries, as it would never be financially viable to take on liability for public authorities’ legal costs.

The proposal that legal aid should be removed for all cases assessed as having “borderline” chances of success.

19.  The borderline category is important because it is frequently impossible to judge prospects of success before preparing the case.  These cases frequently involve particular importance to the litigant, including substantial injustice or suffering.  Solicitors issued contracts by the Legal Aid Agency should be considered to have sufficient professionalism to be able to use the borderline category correctly.

About Detention Action

20.  Detention Action (formerly London Detainee Support Group) is a national charity established in 1993 that aims to change the way that migrants are treated by immigration detention policy in the UK.  Detention Action defends the rights and improves the welfare of people in detention by combining support for individuals with campaigning for policy change.  Detention Action works primarily in Harmondsworth and Colnbrook Immigration Removal Centres, near Heathrow Airport in London.  All primary evidence and quotes are taken from our casework and reports, unless otherwise stated. 

26 September 2013