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Publicly-funded immigration work and the proposed reforms to legal aid

Immigration analysis: What is the future for publicly-funded immigration practice? Michael Hanley and Isaac Shaffer of Wilson Solicitors LLP, discuss the latest developments and the challenges facing both migrants and the sector.

Original news Consultation: Transforming legal aid--Next steps The government plans to take forward its proposals to cut legal aid for prisoners and wealthy defendants and to introduce a residency test to ensure only those with a strong connection to the UK will receive civil legal aid. It also plans to cut the cost of long criminal legal aid cases by 30%. However, the government will not be taking its proposals to change the tendering system for legal aid cases or to cap the number of contracts awarded. Instead, it will further consult on possible changes to these areas. Consultation: Judicial review--Proposals for further reform The Ministry of Justice has published for consultation further proposals to reform judicial review (JR) in a number of areas, including the courts' approach to cases which rely on minor procedural defects; rebalancing financial incentives; speeding up appeals to the Supreme Court in a small number of nationally significant cases, which would extend beyond JR; and planning challenges. The consultation will close on 1 November 2013.

What was left for immigration and asylum practitioners after April 2013 changes? Legal Aid In April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) came into effect, thereby replacing the Access to Justice Act 1999. LASPO 2012 radically diminished the provision of legal aid services in the UK--Sch 1 comprehensively defined those surviving services which were retained within scope, with Sch, Pt 1 addressing those matters which relate to immigration and JR. In particular, LASPO 2012 hugely reduced the scope of immigration legal aid. Almost all areas of immigration practice were removed from scope other than matters specifically challenging immigration detention, or relating to claims for asylum/international protection--ie rights to enter and remain in the UK arising from either:

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the Refugee Convention the European Convention of Human Rights, arts 2 and 3 the Temporary Protection Directive 2001/55/EC, or the Qualification Directive Council Directive 2004/83/EC

It had been estimated by the Justice Committee that this amounted to a reduction of around 30-40% of legally aided work as previously provided for by immigration practitioners. The other immigration areas consequently remaining within scope post LASPO 2012 are:
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proceedings before the Special Immigration Appeals Commission (LASPO 2012, Sch 1, para [24]) challenges to immigration detention powers (LASPO 2012, Sch 1, para [25]) or in relation to obtaining temporary admission (LASPO 2012, Sch 1, para [26]) provision relating to residence/reporting/employment restrictions (LASPO 2012, Sch 1, para [27]) applications for indefinite leave to emain for victims of domestic violence (LASPO 2012, Sch 1, para [28]) applications for a residence card, for victims of domestic violence (LASPO 2012, Sch 1, para [29]) applications for asylum/international protection (and consequent appeals) (LASPO 2012, Sch 1, para 30(1)) matters relating to the provision of accommodation matters for those seeking asylum (LASPO 2012, Sch 1, para [31]) application for leave to enter/remain by victims of human trafficking (LASPO 2012, Sch 1, para [32]) provision of services relating to Terrorism and Prevention and Investigative Measures (TPIMs) and control orders (LASPO 2012, Sch 1, para [45])

However, LASPO 2012 still allows for individuals falling out of scope to make an application to the director of the newly formed Legal Aid Agency (LAA) for 'exceptional funding'. Such an application will only succeed where it can be shown that the failure to provide legal aid would amount to a breach of human rights and/or European Union law rights (LASPO 2012, s 10)--or 'where the director considers that the failure to provide legal services would not necessarily amount to a breach of an individual's right, but that it is nevertheless appropriate for the services to be made available, having regard to the risk of such a breach occurring' Any such application is considerably restricted by the judgment in Maaouia v France (Application 39652/98) 9 BHRC 205, which found that immigration proceedings do not engage a states' obligations under ECHR, art 6. Indeed, in practice, the administration of this provision has been heavily criticised, and there are clear reports to the effect that very few such application have ever been granted to date. Judicial Review LASPO 2012 also removed devolved power/delegated functions for the majority of JR matters. Therefore, following LASPO 2012, legal aid lawyers engaged in JR matters (before being able to undertake even urgent work) must have first had applications for funding approved by the LAA.

While under LASPO 2012 immigration JR matters are subjected to additional restrictions with the following JR matters expressly excluded from scope:
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where an 'issue' or the same/substantially same issue has been subject to a previous unsuccessful JR/appeal in the last 12 months (LASPO 2012, Sch 1, Pt 1, para 19(5)), and where challenging removal and applicant would be within the 12 months of either: - the latest decision to remove - the latest refusal of leave to appeal - the latest determination, or - withdrawal of appeal (LASPO 2012, Sch 1, Pt 1, para 19(6))

What will be affected for immigration and asylum practitioners if the proposals go ahead as now amended? There are two elements of the amended proposals which would affect immigration and asylum practice. Firstly, the introduction of a 'residence test', to be satisfied before the provision of any legal aid services. And secondly, changes in payment for JR matters, with public funding becoming (in most cases) dependent upon obtaining a grant of permission. Residence test The proposed 'residence test' will exclude anyone from obtaining immigration (and any civil) legal aid unless they can first prove they are both lawfully resident in UK (at the time) and have accrued 12 months lawful and continuous residence (at some point). Within the now amended proposals there are various (narrow) exceptions from the residence test (Transforming Legal Aid, Annex B, paras 125, 126). These are to include:
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asylum claimants (as well as fresh claims and many JR's associated with fresh claims) detained clients (restricted solely to challenges against their detention) recognised victims of trafficking, and victims of domestic violence (although again they are only to obtain legal aid within limited matters)

All claims relating to damages/compensation for mistreatment in detention, or false imprisonment etc would also be excluded via the residence test. However, anyone excluded via the residence test could make an application for 'exceptional funding' under LASPO 2012. But as mentioned above there are serious concerns about the access to this funding in practice. In evaluating the effect of the residence test it needs to be remembered that the majority of clients that might be caught by the residence test are likely to be already excluded from scope from 5 April 2013 as a result of LASPO 2012. Indeed, at the time of writing the full scale of the effects of LASPO for practitioners is only starting to be felt. JR--'permission' test The amended proposals for JR are now subject to a further consultation (limited to a consideration of exceptions to the 'permission test').

Responding to concerns raised in the last consultation about the common experience within immigration practice for public bodies to settle the strongest cases pre-permission, such cases where issued 'may' now be paid for by the LAA. However, this is a concession which fails to take into account circumstances where substantial (and often complex) preparatory work is undertaken, and where a public body such as the Home Office, may be well aware that litigation is in prospect, and therefore backs down at the final hour. Under these proposals all such work would end up going unpaid and indeed any JR work undertaken would bear this risk.

What will this mean for immigration and asylum practice in the UK? The residence test alone is unlikely to have a significant effect on immigration practice--because people in need have already had funding decimated. However, there will be an added administrative burden placed in all areas of law that remain funded to ensure every potential client is able to evidence the residence requirement at the start of each new matter. At present, it is not clear how onerous a requirement this will prove to be in practice, nor how many clients may be turned away (including British Citizens and EEA residents). For legal aid lawyers, perhaps even more significant will be the effect felt in respect of the proposed reforms to JR, which will make the issuing of proceedings a financial risk. By placing this risk upon practitioners themselves, the reforms are likely to have a chilling effect on JR, discouraging the issuing of applications until at least the merits of any application are entirely clear from the outset. All in all, lawyers are unlikely to be able to bear (nor have the appetite) for such additional financial risk. Therefore the proposed reforms are likely to mean many urgent applications will not be undertaken despite being a significant part of immigration judicial review work. This includes, for example, challenging detention or removals--work of vital importance to clients. This is also likely to reduce applications which involve complex or developing areas of law--ie where the settled position may be unclear and therefore merits hard to assess at the outset. Thus, the reforms will substantially limit the feasibility of JR in practice. The effect will be to stymie an integral tool currently available to lawyers in obtaining justice for their immigration clients.

What will this mean for migrants? The likely effects for migrants of the residence test will be substantial and are of considerable concern. It has been correctly described by Paul Bowen QC as a 'proposal of enormous constitutional significance'. Indeed, it is worthy of considered reflection that never before have the UK removed people from access to the courts, solely on the grounds of their immigration status. Many consider it would set a dangerous precedent, creating an underclass of people for whom basic rights will not be unenforceable, and who will physically live in the UK, but be outside of the rule of law. After all, falling foul of the residence test will mean being excluded from access to any civil legal aid in order to enforce even basic rights. Just some of the chief concerns would be the exclusion of the following:
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children without status therefore being unable to ensure legal aid to access support and accommodation

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those individuals with residence (who could even be British) and yet who are unable to prove their residence--often such individuals (including the disabled and the mentally ill) may require urgent assistance perhaps due to fleeing their homes in fear or lacking in mental capacity recognised refugees who have not yet accrued 12 months leave in the UK trafficking victims who have not been recognised as such, who will be unable to obtain legal assistance to challenge errors in this process--it is worth noting such individuals are often highly traumatised and in need of specialist legal assistance civil claims for compensation, relating to state ill-treatment, torture, unlawful killing, or wrongful arrest--the recent sexual abuse scandal at Yarls' Wood Immigration Removal Centre is a clear example of the kind of claim that will now be excluded from reaching court

JR is the legal mechanism by which public bodies can be held to account by the public, through access to the courts. Reducing that access means reducing the level of scrutiny which government decisions are subjected to. The amended proposals will almost inevitably have a detrimental effect upon the fair and efficient administration of immigration matters by the Home Office. For migrants without substantial means this will result in being subjected to poor, slow and often arbitrary decision-making and without a realistic avenue for challenge. Of course local authorities will continue to have statutory duties to safeguard and secure legal redress for a range of vulnerable groups including children, even if they are to be excluded from legal aid. The well regarded research by the No Recourse to Public Funds Network (NRPF) has established that in light of such duties, if the residence test is introduced it would end up costing local authorities an additional 26m a year. This figure is comprised of additional legal costs, which are likely to be in the region of 10m a year, together with additional subsistence costs of up to 16m a year due to the likely increase in levels of homelessness amongst migrants. Generally, and without further research, it does appear difficult to predict what will actually happen if the residence test is introduced--but it is in our view dubious that the residence test would deliver the promised savings to public expenditure. Wilson Solicitors LLP have been at the forefront of the campaign against the proposed reforms to legal aid, forming Save Justice UK, a collective of lawyers and campaigners deeply concerned with the effect these proposal will have - particularly upon migrants. Interviewed by Guy Skelton. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.