Written evidence submitted by the Churches Refugee Network (LAI 0084)

Introduction:

The requirement of a 1-year residence test will be contrary to the provisions in the European Equality Directives for the following groups of people, and inevitably will bring into sharper public contrast those areas of the UK Asylum and Immigration laws which are currently allowed to override most other legislation, and which often clash with the Directives.[1]

1)      Undocumented citizens who have lived in Britain most of their lives (un- aware of the need to obtain British citizenship)

2)      Those recently granted refugee status. (‘New Citizens’)

3)      The effect on British partners of non-citizen spouses/ partners and children , especially those living abroad.

4)      Asylum seekers detained under DFT/Detained Fast Track

5)      Those who delayed seeking asylum, remaining ‘illegal’ for reasons of fear and ignorance.

6)      The undocumented, the Stateless (de facto and de jure) ,  and the  ‘un-removeables’.

7)      Non-citizen victims of domestic violence or abuse.

8)      a) + b) Those who arrived with a valid visa to work or study, especially non-EEA, but found their work was abusive, their study not as agreed, or even non-existent.

9)      Legal aid available to prisoners

10)  Legal practitioners in applications for judicial review against public bodies should only be paid for work done on the case if  the Court grants  Leave to Proceed

11)  Legal aid should be removed for all cases assessed as having “borderline” prospects of success.

Most  of the circumstances detailed below apply especially to  those of non-white /non-British origin, with in many cases women being foremost amongst them. They are almost without exception relegated to the lowest socio-economic rungs, and the recipients of societal discrimination  in employment, accommodation and treatment by statutory authorities  tasked with public order and border control. We fully  recognizing the need for  sensible border controls , serving our national interest of resource distribution and balanced economic development. Yet we find it extremely difficult to persuade ourselves that the measures proposed do serve these common purposes rather than amount to a generalised discrimination amounting to xenophobia.

We will now comment specifically on each of the above groups listed:

1.) Undocumented citizens who have lived in Britain most of their lives but were not made aware of the need to obtain British citizenship when their origins are from a Commonwealth country which gained independence after they left. Often they are not well educated and socially marginalised in fairly closed local communities. After years of ‘under the statutory radar’ residence their official presence in Britain has suddenly registered. They are frequently shocked to be ‘detected’, often having been unaware of their illegal status, and helpless to find a solution. If their ‘residence clock’ (re)starts at point of statutory detection they too will be excluded from Legal Aid, as will their children. Several such cases  were found by us  in a number of primary schools in SE London  by teachers with  whom we are in contact, and often they bring  them  to our attention because the stressful situation affects children’s behaviour and academic performance. Many of these children have one British (possibly absent) parent  and one un-statused , often single, parent; many are entitled to obtain British citizenship both by UK parentage and by length of stay. Without obtaining good legal advice, clarification and – support such an application will not be submitted and both child and un-statused parent are at risk of detention and removal. Mostly such families are very poor, even destitute, and legal work could never be funded by them. (The fee charged for a British passport is a first deterrent, at ?£750.-) We have helped to start a fund to collect such (exorbitant) fees, and referral to charitable legal assistance ‘on tap’ for such cases. If parent and child(ren) are not informed, and the authorities take action to detain and remove, (often) long-standing family life is destroyed and the children’s future and education disrupted.

2.) Those recently granted refugee status.

By the nature of our work, and that of our Committee members, we retain contact with many former asylum seekers who acquired a form of Leave to Remain, be it as  full refugees, or Discretionary (Legacy) Leave. They may seek work and accommodation, but in the current climate this is incredibly hard. Many end up as home carers, cleaners  or security staff, employed on zero-hours contracts. We need not spell out the consequences of inadequate and irregular income which engulfs them. Here is a case study:

Francophone recently granted DLR under the Legacy backlog cases, works as an agency  home carer at £3.50/ hour excluding travel costs, achieving on average 16-20 hours per week, or £112-£120.-

Lived in a studio flat costing £900.-/ month, only part covered by Housing Benefit. She relies each month on church support for her food and utility bills. She has recently left the flat and moved in with friends , hoping to save enough  to get her 16 year old daughter over here who is at risk of a premature Muslim marriage and female circumcision. It means she no longer meets HO rules for housing her child.

As this form of  Leave granted does not permit Family Reunion as a refugee, she will need to earn £18.600+ to qualify for bringing her child to safety, which she will not achieve before the girl’s 18th birthday.....Paying to challenge the Family Rules  of July 2012, or her working conditions,  is out of the question without Legal Aid.

3.) The effect on spouses/ partners and children, especially those living abroad: 1) under the new Family Rules 09/07/2012 , and 2) under previous settlement grants which declares them to be  NRPF (No Recourse to Public Funds) until 2 years of settlement.

To prevent these groups from access to Legal Aid would make an already highly ethnic/gender discriminatory situation even worse. 1) Those who entered into marriage/partnership whilst in the UK under a current and valid visa are refused settlement rights, and will not have legal help. Even if the partner is settled in Britain, it is clear many will not have the resources to take private legal action, especially for those where the British partner is of both a British ethnic minority background and female, falling in the very lowest of median UK annual incomes. (see Kofman and Wray, [2] and [3]) It also applies to those who recently entered under visas obtained after an Arranged Marriage and have not yet reached the 2 years’ stay entitling them to settle in their own right. The JCHR will also be familiar with the current spate of legal actions against those affected by the Family Rules July 2012 receiving spousal/ close relative visa refusals  affecting even quite well off and high status professionals who are  British citizens.......[4]

4.) Adverse effect on asylum seekers detained under DFT/Detained Fast Track , that pernicious, pseudo- legal procedure. During this form of detention they are not deemed to have entered the UK. Though there are legal aid contractors listed for these cases, the quality of such advice is variable from very good to appalling, depending on the luck of the dice via assignment by the Home Office in the IRC. Such new arrivals may occasionally (though they rarely are) be lifted out if their cases are recognised to be ‘too complex for quick resolution under DFT’(as the Guidelines say) or if they are acknowledged to be sick, or victims of torture, thanks not to IRC medical centres but mostly to independent NGO assessment by Medical Justice and a DFT  solicitor who will fight for them. Most however reach the end of their superficial and hasty procedure and failure, remaining in detention to await removal...sometimes weeks and months (see recent migrant detention statistics)

There are approximately 30.000 immigration detainees annually. Of these, 30% , or ?10.000 are held in Detained Fast Track.[5]

5.)Those who delayed seeking asylum, remaining illegal, having arrived irregularly/ unnoticed, including those trafficked and hence not ‘on the arrival  radar’ within the immigration service. Often they avoid contact because their previous trauma causes them to  fear any  authorities. They struggle invisibly, with mental health symptoms of PTSD, and at risk of exploitation and self harm.

Mostly such people, once detained, are immediately labelled ‘Detained Fast Track’ procedure cases; a procedure which, more than any other,  illustrates the deeply ensconced statutory disbelief of anything a migrant or asylum seeker may say. It means they will have an overhasty asylum procedure within the IRC’s, with designated specialist contract immigration detention lawyers, who have often no more than half an hour for interview and appeal preparation and who remain without any opportunity to gather quality evidence in support of the claim. Most, eg. 98-99% of such claims are refused. Thereafter many, especially those who cannot be re-documented and/or removed, remain in detention for prolonged periods during which they can sometimes access lawyers who will provide a Judicial Review if new evidence arrives during the detention period...... We know, as do many detention NGO’s and specialist lawyers, of many such cases who eventually succeeded and obtained Leave to Remain. To close all access to further Legal Aid eg. for Fresh Claims followed by Judicial Reviews, for such cases is unjust.

6.) The undocumented, the Stateless, and the ‘ un-removeables’ :If someone arrived without documents, or with false documents, and are promptly or shortly afterwards detained, they may receive a criminal sentence, with further dire consequences under these same proposals on their eligibility for Legal Aid -see below under ‘proposed restriction on the scope of legal aid available to prisoners’. Whilst awaiting such procedures they will be in immigration detention and are legally deemed not to have entered the UK.

Others are or have become de facto Stateless, and the Home Office shows no signs of any willingness to implement the new UNHCR Statelessness Guidelines[6] unless coerced legally. You will be aware that a number of  countries don’t re-document their ex citizens: amongst them China, India, Bangladesh, Iran, Somalia.

Even if released on Temporary Admission or bail, such people will be unable to access a lawyer to present their statelessness- or ‘un-removeable’ claim, and will live for prolonged periods  in a NASS Section 4 futureless and destitute limbo, depending on hand-outs and compatriots......

7.) .) The effects on victims of domestic violence or abuse who are in the UK less than a year and have not completed the 2 years residence test which would allow them to have sought settlement in their own right. It applies especially to those who arrive as spouses in arranged marriages, to those coming under Art.8 as refugee relatives, to those who come to join as a newly wed or civil partner  to a British citizen , and  also, especially, to those recently arrived to join in a relation of informal cohabitation. During this time they are under conditions of ‘No Recourse to Public Funds’ and hence doubly ineligible for Legal Aid. Transfer into a strange country often brings out weaknesses in relationships, causing tensions and breakdown. Amongst NGO’s such as ours, it is well recognized that partners/ family members of newly statused refugees, ‘New Citizens’, after a joyous reunion, soon find that the enforced separation of many years caused by the asylum procedure’s notorious  inefficiencies, may have caused estrangement, and often changed the power balance within a marriage.  Under a 1 year residence requirement these vulnerable spouses/ partners would have no legal remedy and their children may  be un(der)-protected too. Under the EEA2006 Regulations on DV, this is even more so for those who cohabit informally; as yet they cannot have Legal Aid for confronting a DV situation. Whilst the AIRE Centre[7] has assisted to successfully win 2 such cases at Tribunal level, this has not yet resulted in a change of regulation to protect informal co-habituees who will be left without support. We currently have one such a case, a visa-law abiding University  post Graduate student. She was  finally released on bail after  5 months’ immigration detention. (Incidentally, her appeal will not be heard until Spring; due to Courts’ overload with unrepresented cases , staffing- and interpreting problems.). Initially she was, regretfully, refused Legal Aid by her committed solicitor, (himself an ex immigration detainee before becoming a solicitor) until DV was documented and the AIRE precedent cases allowed a judge to grant Leave attracting  Legal Aid. Meanwhile, her church/ NGO support network in the NE had already given an undertaking they would carry the legal costs if no Legal Aid were to be obtained. It is but one of many examples of the voluntary sector being pressed into substituting statutory funding for meritorious cases denied LA under the present rules. States’ explicit  obligations under international law  are being dishonoured by the new Legal Aid rules. At the current rate the ‘Big Society’ is shrinking to quite a small ‘Good Society’ as statutory resources are being withheld from more and more areas of migrant lives, whilst obstructing their ability to contribute to our society economically and culturally.

8.) a)+ b): a) The effects on those who arrived with a valid visa to work and found their work was abusive, their study not as agreed, or even non-existent. Examples are those undocumented migrants, so often youngsters,  who are arrested after being illegal trafficked, and then  kept locked up  in exploitative and illegal employment maintaining secret ‘marijuana farms’ in unobtrusive private houses to pay off debts to protect their  far away families from criminality. And the many women , from E. Europe , Africa, SE Asia,who are misled and lied to, then trafficked hoping to obtain  a promised ‘good job’ ending up raped, and locked into sexual or  domestic exploitation with their passports confiscated and threatened with police- and immigration action.

8.) b) Adverse effects on foreign students, especially non-EEA, eg. in problems with the  grants- or college authorities.

Students who applied in good faith to find their college was non-existent, or did not offer them the promised grants, or the pre-paid and promised student accommodation. We had one such a case; fortunately we could at the time still refer for legal assistance. That would no longer be available if a 1 year residence Legal Aid blocking rule is to be applied.

9.) The proposed restriction on the scope of legal aid available to prisoners

For the government to rely entirely on the internal prison complaints system to remedy regime deficiencies, injustices, failures to act on medical or disability issues is entirely unsatisfactory. Amongst them:

.) Prisoners with health – or disability problems of institutional  management within institutions.

.) Prisoners requiring continuity of medication , eg. immuno-suppressant- or psychogenic drugs.

.) Foreign National Prisoners who were detained on arrival for an immigration documentary offense, and had no opportunity to consult a legal representative.

.) Prisoners subjected to bullying by other prisoners or by staff.

.) Prisoners unable to access education.

We believe other organisations, with daily experience of the criminal prison system will respond better  on this  to the Commission; We do not have sufficient in-depth knowledge of prison practices to usefully assist the JHCR. However, we refer the Commission to an informed analysis of the qualitative issues in prison law (as well as alternative cost projections) in a paper by Dr.N. Armstrong of Matrix Chambers. [8] We note however, that prisoners in the criminal law system usually have criminal, not immigration-  lawyers. Their expertise mostly does not cover immigration law and it’s attendant problems of health and trauma. 

Our long standing experience of Immigration Removal Centre procedures shows us that internal complaint procedures and remedies such as Independent Monitoring Boards, have had no discernable effect on outcome for almost all most complaints except very minor ones.

The arguments below apply to Foreign National Prisoners, be they in RDC’s or in prisons:

The removal of Legal Aid for internal detention issues is therefore likely to be harmful, especially in connection with serious issues of medical/ mental health treatment, allegations of assault or sexual abuse, and  racial , religious or gender discriminatory language or behaviour; Like other immigration detention NGO’s, we have ample distressing case anecdotes: Failure to acknowledge, or offer treatment to, victims of torture, as well as non-compliance with UN rules they should not be detained, is but one example...... We have been involved in this issue since 1998: It has taken decades of insistence against Home Office stonewalling by specialist NGO Medical Justice, lawyers, visitors’ groups and others to receive an undertaking from the Home Office such reports would be taken serious....usually only after a successful legal challenge. For years they were not; Lord Avebury and colleagues have done PQ’s about Rule 35 from 2007 onwards,......  A  2012 inspection report by ICI John Vine noted that torture victims, or victims of trafficking were not adequately attended to ....[9]   

It is only very recently, after  several more of their  PQ’s throughout 2013, that we have first hand experience (in August 2013) how for one of our tortured ex detainees that undertaking was finally being honoured without having to resort to  judicial oversight to grant release.[10] The unreasonable time pressures on those solicitors doing contract detention work ensures that unless specialist- and advocacy NGO’s can intervene , such claims will rarely reach the courts. If Legal Aid is no longer available to those detained, that option will be closed.

That has grave real life consequences: With specialist therapeutic NGO’s we  remain aware of ex detainees where the consequences of neglecting PTSD in prison situations has led to severe psychotic breakdowns, in detention and upon release, and  long term functional damage. Such a case history generalises undoubtedly to the growing number of  Foreign National Prisoners in our prison estate: Depriving them of Legal Aid  to address weaknesses of institutional management is a recipe for serious incidents both for good institutional order and individual prisoner well being.

10) Providers of legal services in applications for judicial review against public bodies should only be paid for work done on the case if the Courts grant Leave to proceed.

Much of the preparatory work for a Judicial Review must be performed prior to lodging. This was a result of the reforms following the Carter Review. The advantage of this is less work/ cost post Leave to appeal, and better ongoing communication between counsels and their instructing solicitors, and the courts.

Many of the cases presented , especially but not only, in asylum/ immigration, are of the sort which have life changing consequences if statutory decisions are not challenged. 

In addition a number of them are prepared specifically  to investigate significant issues of public interest which have previously been denied hearing, yet clearly need clarification or challenging as to their legality.

Should the preparatory work for such issues no longer be payable, then solicitors will no longer be able to instruct and pay counsels without putting their firm’s economic survival at risk. It will increase the number of appeals against refusals of Leave to Proceed, another Court burden.

Furthermore, we are  aware that many of the cases currently submitted for Leave to Proceed to Judicial Review, will result in the respondent ‘giving way’ and  hence bringing the case to an acceptable outcome without incurring further public costs. The level of such pre-hearing agreements is , we are told and have experienced, very high; ( around 50%, see also Armstrong, footnote 8) since lawyers would not usually pursue a matter if they were not already convinced of it’s merit, both in legal terms and in Legal Aid criteria parlance Such cases are de facto ‘successful’ from the point of view of the appellant. However his/her legal team would not be paid for that good outcome. 

We are aware that the intentions of the recent legislation on the legal profession’s reform, are to significantly shrink the number of public law practitioners through removing their ability to draw upon Legal Aid. But to do so by denying the less affluent, less articulate  members of those in the UK  a legal remedy is unjust and discriminatory, contravening both the Equality Directive on equal access to goods and services and Art.6 of the ECHR on the right to fair trial. It will short circuit and thus  deeply damage the quality of legal debate in our country and eventually our legal profession, and it’s deservedly eminent global reputation. Both will irreparably damage  the common good.

11) Legal aid should be removed for all cases assessed as having “borderline” prospects of success.

This section does not differentiate between ‘borderline’ and ‘vexatious’ cases: Legal Aid removal for cases clearly falling into the latter category is of course justifiable....if ‘vexatious ‘ is what they are........However, ‘borderline’, as used here,  is a concept which is seriously deficient in practical application: The LAA Legal Aid awarding authority already implements a self administered assessment by the solicitor, the ‘merits test’. Many solicitors practice it in a very cautious manner to avoid losing income, sometimes resulting in deserving cases not being heard for lack of Legal Aid (so-called ‘cherry picking’).

Other practitioners, committed to their client’s predicament, will take more risk in assigning ‘merit’ and persist in applying for Legal Aid. But there is an issue here of potential damage to development of the law:  ‘Borderline’ cases are often those where existing case law or expert evidence is not conclusive or  situations in the ‘real world’  have changed such as to require judicial re-examination.

On such occasions a ‘borderline’ case will serve the public interest of developing a new judicial consensus to address these changed circumstances.

Within the immigration- and asylum  field that continues to happen on a regular basis: the resolution of issues around female gender, definitions of persecution, of internal relocation, of freedom to practice  or openly hold religious or political views have all been the subject of such ‘borderline’ cases and resolved in a manner which changes case law judicial consensus.

We do not therefore approve of this proposal to tighten exclusion for cases whose assessment of merit are not immediately clear cut.

September 2013