Written evidence submitted by Freedom from Torture (LAI 005)

Torture survivors will be adversely affected by:

• The proposed introduction of a residence test for civil legal aid claimants, so as to limit legal aid to those with a ‘strong connection’ with the UK;

• 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 for the application to proceed, subject to a discretion for the Legal Aid Agency to pay providers in some cases; and

• The proposal that legal aid should be removed for all cases – including asylum cases – assessed as having ‘borderline’ prospects of success.

Freedom from Torture

Freedom from Torture, formerly known as the Medical Foundation for the Care of Victims of Torture, is a UK-based human rights organisation and one of the world’s largest torture treatment centres.  Since our foundation more than 25 years ago, more than 50,000 people have been referred to us and we currently have centres in London, Manchester, Newcastle, Birmingham and Glasgow. 

The organisation exists to enable survivors of torture and organised violence to engage in a healing process to assert their own human dignity and worth.  Our concern for the health and wellbeing of torture survivors and their families is directed towards providing medical, psychiatric and psychological consultation, assessment and treatment, short and long term rehabilitation through social care, casework and counselling, psychotherapy, physiotherapy, complementary therapies, group and family work, as well as practical assistance with accommodation and welfare agencies.  Our holistic approach recognises the wellbeing of the whole person and that absence of access to justice to secure protection and welfare and housing impacts adversely on torture survivors and can inhibit the efficacy of therapy.

Freedom from Torture also accepts instructions for the preparation of forensic medico-legal reports documenting torture in accordance with the international standard set out in the Istanbul Protocol and the organisation prepares between 300-600 medico-legal reports per year.  It is also our mission to educate decision-makers and the public about torture and its consequences, while our advocacy work strives to ensure that the UK and other states honour their international obligations with regard to torture.

Torture survivors and the UK asylum system

Torture survivors are among the most vulnerable of asylum seekers. Many suffer from the consequences of torture for years after its infliction and struggle to rehabilitate as they progress through the asylum system here in the UK. Failure by the Home Office to identify survivors of torture during the screening and substantive interview processes, leading to a failure to apply relevant law and policy, is a pervasive problem. There is also a culture of disbelief within the Home Office which compounds the difficulty that many torture survivors experience in disclosing torture to government officials and leads to incorrect assessments of credibility and mishandling of medico-legal evidence of torture injuries. These problems lead to flawed decision-making by the Home Office which protracts the asylum process and exacerbates mental health difficulties associated with torture that survivors struggle to cope with.

Against this backdrop, access to high quality, specialist legal advice is essential to ensure protection is granted as quickly as possible to torture survivors who require it and that their other rights are also protected.

Access to justice is an important element of the right to rehabilitation, guaranteed to torture survivors by Article 14 of the UN Convention Against Torture. In its recent General Comment on this article of the treaty, the Committee Against Torture emphasised that ‘the provision of means for as full rehabilitation as possible for anyone who has suffered harm as a result of a violation of the Convention should be holistic and include medical and psychological care as well as legal and social services’ (emphasis added).[1] The Committee also affirmed that States parties to this treaty must ensure that access to justice is available to all torture victims including ‘asylum-seekers, refugees or others under international protection’. The UK has been a party to this treaty since 8 December 1988. 

We regret that the government did not await the outcome of this inquiry by the Joint Committee on Human Rights before finalising and publishing its response to the Transforming Legal Aid consultation conducted earlier this year. The proposals will affect many vulnerable groups, including torture survivors, and it is imperative that careful scrutiny of their human rights impact is undertaken before any reforms are finalised and implemented.

Residence Test

The introduction of a test requiring one year of lawful residence before becoming eligible for civil legal aid is likely to be found unlawful in a number of respects:

• Article 16 of the 1951 Refugee Convention requires States Parties to enable refugees to have access to the courts and equality of treatment with nationals with regards to legal assistance. 

• EU Directive 2004/83/EC (Refugee Qualification) guarantees to both refugees and those granted subsidiary protection equal access to health care, social assistance and other core rights that may require enforcement via the courts. 

• Indirect discrimination on the basis of race, disability and other protected characteristics is likely, in contravention of the Equality Act 2010 and Article 14 of the European Convention on Human Rights in combination with Articles 2, 3, 6 and 8, through the inability of these groups to access the courts to secure their legal entitlements.

The residence test would have a deleterious impact on survivors of torture recognised as refugees or granted subsidiary protection:

• Freedom from Torture welcomes the recognition from the government that the 12 months should begin from the date the asylum claim is made and not from the date when the claim is accepted but remain concerned that many survivors of torture will be denied access to justice through application of the test and that this will impede realisation of many of their human rights, including the right to rehabilitation, and various statutory entitlements. Freedom from Torture’s latest research study[2] examines the impact of poverty on survivors of torture in the UK and their capacity to engage effectively in rehabilitation. The research identifies the frequent occurrence of homelessness and destitution of survivors of torture during the transition from asylum support to mainstream welfare provision, often on account of administrative failings on the part of the Home Office, and the lack of seamless transition between the two systems of support.  Under the proposals, survivors of torture would not be able to use legal aid to bring legal challenges to delays in the provision of status papers or, in the year before the residence test is met, to otherwise secure access to their entitlements to welfare, housing and community care support. This should be of particular concern given the disabilities and other special needs of many torture survivors.  The level of destitution and homelessness for survivors of torture during this time would almost certainly worsen, with a significant impact on survivors’ short and long term rehabilitation from torture.

The residence test would impede access to justice for survivors of torture who have been refused asylum and have not yet submitted a fresh asylum claim:

• Freedom from Torture welcomes the exemption from the residence test for asylum seekers and, in its response to the consultation at Annexe B paragraph 118, the Government’s modification to the original proposals so that asylum seekers preparing and submitting fresh claims for asylum will continue to be able to access legal aid at that stage.  Freedom from Torture provides services to many survivors of torture forced to prepare fresh claims after refusal of their initial protection claim.  In the first quarter of 2013, 20% of the 127 cases referred by our clinicians to our in-house legal team related to clients at that stage of the asylum process.  Our Medico-Legal Report Service also receives a high volume of referrals from legal representatives preparing fresh claims for torture survivors (who may or may not be in treatment with us).  It is frequently the case that documentation of the physical and psychological sequelae of torture will establish a fresh claim for asylum where medical evidence was either not submitted at an earlier stage or was inadequate, for example because a non-specialist expert was instructed who failed to properly document torture in accordance with the Istanbul Protocol.  This may arise from non-specialist legal representation at an early stage and/or because the asylum system does not afford sufficient opportunity for survivors of torture to develop the relationship of trust that is often necessary to facilitate disclosure of experiences of torture and sexual violence, which are experienced as degrading, humiliating and shameful.

• Freedom from Torture was highly concerned that imposing the residence test on torture survivors preparing and submitting fresh claims would have made it impossible for many to secure legal representation which would, in turn, expose them to a very serious risk of removal to torture and other forms of persecution.  We trust that careful consideration was given to the UK’s international obligations under the Refugee Convention, Article 3 of the European Convention on Human Rights and Article 3 of the UN Convention Against Torture and Other Cruel, Inhuman of Degrading Treatment or Punishment as we urged in our submission to the Ministry of Justice in response to the original proposals.

The residence test would have a detrimental impact on survivors of torture at the end of the asylum process who are appeal rights exhausted:

• The proposals would exacerbate vulnerabilities for torture survivors at the end of the asylum process who would be denied legal aid to challenge abuses of their rights, whether relating to access to support under the Children Act 1989 to protect the welfare of children or wrongful detention, with consequent and obvious damaging effects. In the first quarter of 2013, 12% of the 127 cases referred by our treating clinicians to our in-house legal team related to clients in therapy with us who were appeal rights exhausted.

• Access to legal advice is relevant at each stage of the asylum process.  For example, the Home Office Guidance on the removal of families, introduced to promote and ensure the welfare of the child during this process under s.55 Borders, Citizenship and Immigration Act, provides for a Family Returns Conference during which the family should be advised that if they wish to submit further submissions or legal challenges with regards to their departure, they should seek legal advice immediately and submit representations as soon as possible, and contact details of legal representatives will be provided.  A lack of legal aid at this stage would undermine the intention to ensure that removals of families with children are conducted in accordance with the law.

The residence test would also be unworkable:

• Lawful residence is a complex area of immigration law and it is clear that many legal practitioners who do not specialise in this area would be unable accurately to assess eligibility for the purposes of advising in relation to other areas of law including entitlements to essential services.  It is highly likely, therefore, that survivors of torture who do meet the requirements of the residence test would still face difficulty accessing legal services.

• Torture survivors and other applicants who submit their status documents to the Home Office with applications to extend their leave to remain will also be left with no documentation to demonstrate eligibility for legal aid to assist with other legal matters that may arise.

• Perversely, this would place torture survivors and others with strong cases, whose protection needs have been accepted and granted at an early stage, at a disadvantage compared with ‘borderline’ cases which take a long time to resolve, since those in the former category would have to wait several months after being awarded status before the residence test is met whereas those in the latter category would reach the twelve months more easily.

Paying for permission work in judicial review cases

Freedom from Torture is concerned at the proposal (as modified) that there should be discretion given to the Legal Aid Agency to pay providers for work done prior to permission being granted for judicial review (the original provision was that no fees would be paid unless permission was granted). The effect of this proposal is likely to reduce the availability of specialist legal advice and representation pertaining to judicial review across many areas of decision-making by public authorities affecting survivors of torture. We welcome the indication in Annex B that there will be further consultation on this in a separate paper as the criteria for exercising such discretion and how often it would be applied will affect whether or not lawyers are prepared to take instructions on such cases.

It will be clear from examples given above that judicial review provides torture survivors with an important legal safeguard against poor quality decision-making by the Home Office, local authorities (especially in relation to social services and housing departments) and a range of other public authorities. Typical examples of flawed decisions by public authorities concerning our clients include failure to consider fresh representations as a fresh asylum claim, delays in deciding asylum claims (in some cases for three years or more), refusal of permission to appeal to the Asylum and Immigration Chamber of the Upper Tribunal, failure to properly assess eligibility for entitlements including community care support, and failure to comply with policy concessions relating to torture survivors (for example with respect to the frequency of reporting for those seeking asylum).Our clients are already experiencing difficulty in finding specialist legal representation for judicial review actions following the previous cuts to legal aid in April of this year. Freedom from Torture is concerned that placing applications for judicial review ‘at risk’ will further restrict legal practitioners’ capacity in this area, thereby reducing the availability to our vulnerable clients of legal advice and representation relating to judicial review matters. 

‘Borderline’ cases

Freedom from Torture is disappointed that the Government intends to remove legal aid for, in particular, housing, welfare and asylum cases with only a ‘borderline’ prospect of success.

Merits in asylum cases are difficult to assess as country situations often change more quickly than case law or country specific information and policies giving guidance on the factual human rights situation in specific countries or in respect of specific groups.  The accounts of individual applicants escaping torture and persecution may provide evidence that has not yet come to light and challenges existing knowledge and case law with regards to situations of torture.

The asylum and human rights protection cases of survivors of torture are frequently highly complex.  Evidence in the case may develop over time.  Survivors of torture may be traumatised by their experience and need time and the development of a relationship of trust in order to be able to give a full account of their experiences of torture. 

Freedom from Torture is concerned that the civil legal aid funding system incentivises legal practitioners, especially those who are less experienced, to avoid taking on complex cases, with the risk that survivors of torture are unable to challenge decisions refusing protection and placing them at risk of removal to situations where they face torture and other forms of persecution.

The current funding regime allows legal aid to be provided in cases considered to be ‘borderline’ if the life, liberty and physical safety of an individual are affected, if they are at risk of homelessness or if the case would involve a breach of human rights protected by the European Convention on Human Rights. Freedom from Torture considers that these safeguards are an essential means of ensuring that deserving cases including those involving torture survivors, often involving risk to life and physical safety, are brought before the courts.

Experts’ fees

As described above, the medico-legal reports commissioned from Freedom from Torture’s Medico Legal Report Service, are often crucial in the proper determination of an asylum claim from a torture survivor. The current fee levels allowed are insufficient to meet the full costs of this service which has to be subsidised from charitable funds. This contributes to a limitation on the number of reports we can provide and the speed with which we can produce them. Any further erosion of fees payable by the Legal Aid Agency for expert reports of this sorts is likely to impact detrimentally on the accessibility of our service (and the services of other providers of medico-legal reports relating to torture) to torture survivors.

In many cases torture survivors need expert interpreters to help elicit properly the details of the abuse they have suffered and any diminution in rates payable is likely to drive specialist interpreters from this market which would in turn compromise the ability of torture survivors to communicate clearly what has happened to them. The vocabulary and understanding of clinical issues, as well as the emotional demands of this work, make specialist interpreting provision for this vulnerable group especially important.

27 September 2013