Access to Justice: An Analysis of UK Immigrants access to legal aid considering

The Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Contents
Abstract
This study will examine and critically analyse several components of to achieve
several . Firstly, it will explore the effects of the Legal Aid, Sentencing and Punishment
of Offenders Act 2012 (LASPO) specifically on immigrants to the UK seeking legal aid.
This will include a literature review of existing scholarship concerning this area while
examining their validity and collective opinion balanced on the facts. A key facet of this
analysis will be consideration of LASPO’s effects in contrast and collaboration with
Article 8 of the European Convention of Human Rights (ECHR) and the Human Rights
Act 1998 (HRA), as well as the laws treatment of different groups of immigrants (with
particular focus on vulnerable groups such as in both de facto and de jure. Later
concluding on whether the current law is satisfactory as well as possible avenues to
pursue in the future considering the current cumulative opinion and data available. This
study analyses the effect of LASPO’s introduction on immigrants’ access to legal aid
when appealing for their leave to remain in conjunction with their rights in the UK as
migrants. Overall, the goal of this study is to contribute to existing research and
academic opinion about the extent to and the effect of LASPO on legal aid access to
immigrants to the UK.
Introduction
This study will be structured into three chapters. The first chapter will provide a brief
chronology of the development of legal aid since its introduction to the UK in 1949, to
bring into scope the context behind the introduction of LASPO. The second chapter will
be comprised of the main argumentative points and scholarly analysis of the Act and its
effect on the scope of legal aid as well as the effects this has, as well as an overview of
the legal aid system that is accessible to immigrants as a result; including scholarly
opinions and evaluation. Chapter three will be comprised of a literature review of
several of the articles cited within this study, analysing the validity of the scholarship
surrounding this topic and the significance of their research.

In order to achieve the aims of this dissertation, a systematic literature review of the
current scholarship surrounding the impact of LASPO was conducted. The appropriate
literature drew from various empirical studies and drew upon quantitative data from the
UK Government website, many of which posted as a result of transparency laws as well
as independent data from studies conducted by Amnesty International.
Legal aid is an essential aspect of law in the modern day, in a time where 32% of the
foreign-born population in the UK live in poverty, as well 19% of those born within the
UK . However, in the last forty years this country has observed constant cuts to this
sector which arguably peaked in the introduction of theLASPO . This has a profound
effect on the families and rights of all individuals living within the UK as well as those
who are seeking asylum or attempting to migrate to the UK. Most claims have been
removed from scope entirely, especially in family law which has now been reduced to
only allowing the application for legal aid in domestic violence cases where certain tests
and high chance of success apply . Within the details of this analysis this study will
explore how LASPO 2012 interacts with article 8 as well, seeing as how significant this
right is to many immigrations claims as well as how it has affected the application of
judicial review. The research data for this study was primarily drawn from reliable,
professional databases such as LexisLibrary, LexisPSL, Westlaw, The University of Law
Library and the official UK Government website. These are regularly updated,
maintained, in turn this ensures that this study’s findings and assertions are rooted in
reliable source material. Additionally, to gain popular perspectives of this highly
publicised and emotive topic, secondary sources from law focused journals such as
Legal cheek were utilised. This wide range of source material has been largely
beneficial as it has illuminated the controversial nature of LASPO both among the public
and scholars, while illuminating an overwhelming scholarly consensus surrounding
LASPO and its perceived status as the figurehead of cuts to both the funding and the
scope of legal aid. However, a limitation is the reductive nature of the scholarship and
the sheer volume of work available. To overcome this vast amount of content, this study
focuses only on the most significant aspects that contend with, and are relevant to,
LASPO and its effects on legal aid in the context of access to UK Immigrants.
Furthermore, this vast range of content has also acted as a As a result of this scope,
few writers had opposing opinions about the specific issues others had analysed
leading to many pieces being approached as well researched opinion pieces merely
chastising the act as opposed to truly analysing its impact from a wholistic stance taking
into account both positive and negative perspectives, this study aims to readdress this
imbalanced, reductive scholarly consensus with holistic analysis

Chronology
The concept of legal aid was first introduced to the UK, substantially, in the 1940s under
the legal aid and advice act 1949, this was state funded. Notably, under this act aid
could be sought for any criminal or civil matter, and could be paid to almost anyone, at
the time 80% of the population were eligible for this, . The dispensation of legal aid
increased from the 1970’s onwards, having been moderately low in the 1950’s and
1960’s, this was in part due to the opening of the first law centre in North Kensington, it
conducted a substantial amount of pro bono work, by 1980, twenty-six centres identical
to this had opened, vastly increasing the access and volume of legal aid being
distributed . This issue became exasperated between 1976 to 1986, with social welfare
claims increasing from 27,000 per year to 172,000 by the end of this period . Although,
another factor in this escalation was the severe tightening of asylum laws in the UK, this
caused a vast surge in immigration disputes which required litigation, courtesy of the
legal aid system.

The costs continued to rise, reaching £1.4 billion by 1995 . The natural and necessary
response were cuts to come into place, by 1995 eligibility was cut down to 47%, with a
the most severe case coming in 1997. This is when Lord Irvine forwarded that most civil
cases be entirely removed from the scope of legal aid, which led to the privatisation of
much of the sector of legal aid, subject to ‘’conditional fee arrangements’’ . Following on
from this, from 1997 onwards, Tony Blair’s labour government then issued a series of
reforms. What was proposed was that professional lawyers and local authorities would
work in tandem as a ‘Community Legal Service’.

In 1999, the Access to Justice Act 1999 was passed. The effect of this was that legal aid
was once again diminished in its availability. Administration of legal was to be
transitioned from the Legal Aid Board to the Legal services Commission and a series of
areas that previously had access to legal aid were removed from scope: Will-making,
trust law, most personal injury and business law. The declining access only continued to
become more severe, by 2007, 27% of the population had legal aid available to them as
a default, leading to it being an unprofitable venture and many private firms abandoning
it in any large scale. Consequently, in 2012, LASPO was introduced, some consider this
to have ‘’throttled the scope, eligibility for and payment of legal aid,’’. This act reduced
the scope to a small series of areas with varying levels of de facto and de jure
accessibility, Environmental law; asylum; neonatal clinical negligence; mental health
law; child welfare; eviction; some judicial review. This has resulted in a tight grip around
access to legal aid for asylum seekers and immigrants.
Chapter 2
This chapter will be divided into three sections, the first of which examining the current
scope of legal aid since LASPO 2012, it will explain who has access to legal aid since
the introduction of new legislation and cuts as well as the fundamental issues with the
legal aid system that occur as a result of the implementation of these decisions. It will
examine the tests that are currently in place for the current scope for those who will be
considered for access to legal aid and the likeliness of success, introducing the concept
of ‘creep’. A prospect forwarded in this work to define the concept that because of
jurisprudence some may not receive the advice they would otherwise be entitled to as a
result of the assessment of failure or success of a case being such a contributing factor
to whether one receives legal aid. This chapter will then compare LASPO 2012 and
Article of the Human Rights Act 1998 (HRA) and assess how they interact in
establishing grounds for legal aid to be supplied to immigrants who require it, primarily
victims of domestic violence and asylum seekers. Finally, it will consider the scholastic
opinion and change to legal tests that have been proposed to judicial review and legal
aid, as this is a key factor to immigrants who wish to appeal previous cases.

The Rule of Law

It if firstly important to outline the Rule of Law, a running argument of this study is that
‘Legal Aid Creep’ and the introduction of the reduced scope of LASPO 2012. The most
well recognised and accepted principles of the Rule of law are those defined by Thomas
Bingham in his book titled by this namesake. This text sets out eight principles:

· The law must be accessible, intelligible, clear and predictable.

· Questions of legal right and liability should ordinarily be resolved by the exercise
of the law and not the exercise of discretion.
· Laws should apply equally to all.
· Ministers and public officials must exercise the powers conferred in good faith,
 fairly, for the purposes for which they were conferred – reasonably and without
exceeding the limits of such powers.
· The law must afford adequate protection of fundamental Human Rights.
· The state must provide a way of resolving disputes which the parties cannot
themselves resolve.
· The adjudicative procedures provided by the state should be fair.
· The rule of law requires compliance by the state with its obligations in
international as well as national laws.

The law must be accessible. The law must afford adequate protection of fundamental
Human Rights. These are the two aspects of the Rule of Law so praised collectively by
solicitors, and politicians alike. Notably, without adequate attention to the fifth aspect as
Raz sets out , then a society exists in a state which oppresses minorities and supports
inequality. LASPO and the policies and actions that have occurred as a result of its
introduction arguably go against the Rule of Law as backed by York and Lyon alike.
Therefore, with these rules in mind as a point to judge how effective LASPO has been
as a piece of legislation and to what degree it has allowed or denied access to legal aid
for immigrants to the UK, it is simpler to use these rules as a framework to judge it
against.

Sir James Mathew once said that ‘’In England, justice is open to all, like the Ritz Hotel.’’.
The access to legal aid to all within England, including those seeking asylum and
immigrating to this country, have been faced with sizeable cuts as a result of LASPO’s
introduction, slashing the yearly legal aid budget by £320 million in 2014 and another
£220 million in 2018. This cut went as far as to introduce that from April 2013 there will
be no legal aid available in migration issues except where the applicant claims some
protection under the 1951 convention relating to the status of refugees, here within
articles 2 and 3 of the refugee convention . Additionally, migrants may fall into scope of
receiving legal aid for a few more stated and limited reasons: They claim they are a
victim of trafficking, this only applies upon a National Referral Mechanism having made
‘conclusive grounds’ decisions that they are in fact a victim of trafficking or ‘reasonable
grounds’ where no decision has not yet been made. Also, the applicant may claim that
they are a victim of domestic violence, which would allow them to make an application
for indefinite leave to remain . This will also enable them to apply for a residence card
under the Immigration (European Economic Area) Regulations 2006, . Applicants may
also claim their detention under immigration powers is not lawful, which will entitle them
to legal aid, . Legal aid is also sometimes available upon judicial review, which will be
spoken about in more detail later in this essay. As noted in the former brief chronology,
there is a clear restriction here. As previous, legal aid was more often open to all with
minor restrictions upon who did not have it. Whereas, in the modern day, it seems the
default position of the granting of legal aid is that it is not available to anyone, aside
from in the cases of exceptions. This inevitably leads to situations where one must
provide evidence for situations that can be intangible at times.

The most glaring example of the requirement to provide evidence that seems unrealistic
and exclusionary is in immigration cases regarding domestic violence. The Ministry of
Justice did adopt the definition of domestic violence as used in civil family law. However,
the Legal Services Commission (LSC) did impose a strict barrier to application in this
regard. There must be specific evidence of domestic violence, . This barrier of evidence
has been laxed since the allowing of the domestic violence exception that has been
incorporated into immigration cases requiring legal aid. Ockleton wrote that:

‘’… the Immigration Judge is not confined on an appeal to the evidence “required” by
the Secretary of State, nor is an appeal bound to fail if the “required” evidence has not
been produced. The question of whether domestic violence has occurred is to be
determined based on all the evidence before the Immigration Judge’’

Essentially stating that the barrier of evidence does not restrict cases as much as could
be thought, since it is decided by all available evidence on balance of probabilities
before the immigration judge and the somewhat confining term of ‘required’ is looser
than it seems in de facto. Therefore, suggesting that, in immigration cases specifically
concerning domestic violence threatening their immigration status or as a barrier to
entry is not as severe as has been thought by writers such as P. Sanderson and H.
Sommerlad, who surmised that, ‘’ Changes to legal aid in England and Wales amount to
no less than the systematic destruction of access to justice’’. While there is some truth
in this statement, we can see varying degrees of success for those seeking legal aid for
domestic violence cases, for migrants. For example, in JH(Zombabwe) v Secretary of
State for the Home Department it was held that the claimant was not granted
discretionary leave to remain following his marriage to someone who had already
settled in the UK despite the marriage having broken down and him being on the
receiving end of considerable domestic violence, as it was not seen as a satisfactory
infringement upon his human rights. The claimant was unsuccessful; however, they did
receive legal aid for the proceedings undergone despite their status being wholly reliant
upon marriage to their spouse. Therefore, legal aid is available to those with a degree of
evidence to domestic violence, even if the case itself may not be successful. Although, it
would be fair to note that the unsuccessful nature of this case would lead to cases such
as this becoming less likely to receive legal aid in the future as the likely success of a
case is balanced as to whether the claimant will receive any legal aid, this creates a
‘legal aid creep’ in a sense where cases that are successful will more likely be
successful in the future and those that fail may be more likely to not receive the
necessary aid they may require for people to receive the representation they morally
deserve.

There is considerable evidence of that failure to comply with one requirement would
cause individuals to be refused immigration to the United Kingdom, cases such as
Pankina , Munir and Alvi where it was found there was a denial of legal aid as a result of
the lack of specified evidence. This leads to an inference that people will no doubt face
removal or denial of immigration as a result of over-regulation leading to no legal
representation where it should be given.

Further to this, there are several excluding factors that apply to many claims that would
benefit from legal aid. However, members of households with disposable incomes over
£3000 do not qualify this includes those living in shared households. This means that if
someone was to live with a stranger whose disposable income breaches this cap, while
the claimant on their own does not then they will not qualify. As well as this, since the
cuts LASPO has led to, a cut of 10% for solicitors and 8.5% for criminal practitioners ,
those employed in the industry acknowledge that they themselves are faced with a
series of hoops and walls that discourage funding from being provided to legal, despite
its necessity. Matthew Davies wrote, quite explicitly that:

“[the new system] is a nightmare. On top of the 10% cuts to fees, firms will lose another
10% being caught out by the hoops they have to jump through…I wouldn't choose this
career if I could do it all over again, just because of the sheer scale of the cutbacks.”

The cutbacks being so severe to the point it affects those working within it to the extent
Davies describes has undoubtedly caused a severe impact on the availability of legal
aid to those who need it as well as the quality they may receive on a larger scale. Quite
often, work in this area is given to trainees as it is a more cost-effective way to complete
the volume of work currently available . Amnesty international found that these cuts had
a ‘’disproportionate,’’ impact on vulnerable groups such as immigrants. the severely
diminished level of access as well as the impact of the COVID-19 pandemic as meant
that those with ‘No Recourse to Public Funds’ (no access to legal aid funding) restriction
upon their immigration status have no access to the benefits that would undoubtedly
ensure their legal protection or at least representation to ascertain what can be
considered fair justice. The complexity of the NRPF policy and the knock-on effect of
LASPO has created an environment where legal aid can be considered, ‘’simply
unavailable. In practice this renders many unable to make an application at all.’’. As a
result, the current landscape for migrants specifically is one of an immense series of
hurdles they need to overcome to even qualify for legal aid under the provisions of
LASPO as well as the effects both itself and the cuts on the industry have had on the
workforce available as well as the quality of that workforce, as a majority of the
workload is left to trainees and paralegals to save on costs, suggesting that the impact
of LASPO has been an disproportionately negative one.

Means Test

Means testing is the means by which a solicitor may evaluate the financial viability of
someone’s claim, but only if it falls within the scope of LASPO, s11(1-6). This test is set
out on the UK Government website as published by the LAA (Legal Aid Agency). It is
also set out within the Civil Legal Aid (Financial Resources and Payment for Services)
Regulations 2013 . The key factor of this is that it sets eligibility limits onto a household,
that their monthly income should not exceed £2,657, if they have 4 children in their care
with £222 additional for each child past 4. With the disposable income limit as £733 per
month and the disposable capital limit for immigration cases which is set to £3000
compared to the usual civil limit of £8000 as per regulation 8(3). However, in cases of
forced marriages and domestic violence (when the standard of proof applies) these
eligibility limits are waived, yet a contribution may be required. Notably, regulation 16
details as to whether a partner’s income will apply. This may be seen as a harsh cap for
asylum seekers and immigrants. However, they are also able, in some circumstances,
to receive financial aid from the National Asylum Support Service (NASS) under ss 4
and 5 of the Immigration and Asylum Act 1999 . Ultimately this test exists to ensure
those who can afford legal advice and representation spend their own money and not
the taxpayers on their legal needs, it can be argued that it is too restrictive, yet there are
provisions as mentioned that favour asylum seekers in need of advice and
representation.

Article 8

LASPO interacts with article 8 of the Human Rights Act 1998 (HRA 1998) quite often, as
many invoke their human rights in immigration cases to default a position that allows
them to receive leave to stay. Cases including Tozlukaya , Al (Serbia) considered how
article 8 interacts with UKBA policies in line with LASPO. Considering the extent and
volume to which they appear as well as their complexity (as cases that are defending an
appeal against the Secretary of State) can create a high volume of litigation. The ILPA
and EEA have found that in the UK, individual applicants have little access to expert
advice and representation in line with EU Law, for migrants from non-EU countries there
is not independent body for them to apply to. This level of complexity remains in place
because article 8 is not an absolute right, as such a breach of it does not apply for the
considerably fast-tracked emergency procedure. This leaves non-EU immigrants in a
difficult position. Notably, with legal aid severely reduced as aforementioned considering
LASPO and the lack of absolute protection under article 8 there is little left to protect
them in any real sense, leaving victims of domestic abuse and breaches of their human
rights with little to no representation. As a result, fewer professionally presented
applications will be received, fewer test case challenges. This leaves the landscape in a
position where it does not satisfy its originally purpose, to give those who cannot afford
it, those who need it most the legal representation that they require. These vulnerable
peoples are left in a position where they cannot receive competent advice, which groups
like Amnesty International have attempted to abate.

Legal aid has been argued to still be made available where decided cases showed that
a particular applicant may have a claim under article 8 of the ECHR. However, this has
another barrier to entry in that it must be financially eligible. This consequently leaves
applicants with no access to competent advice or representation and as York writes they
will inevitably be, ‘’far less likely to win their cases’’ .

In the case of foreign nationals who are within the penitentiary system, they too have
lost access to legal aid as a result of LASPO 2012, going as far as to rely on deportation
as a result of their failure in applications of their article 8 rights. York writing that, ‘’ this
government has effectively reintroduced the 18th century punishment of transportation’’.
Markedly, many individuals are only detained for up to 29 days upon immigration
detention, up to 77% in fact, which the others being kept for under 6 months, over 6
months or even 0.7% kept for well over a year, please refer to figure 1.1. However,
returns have been decreasing, down to 3,327 in 2020 which is 54% lower than 2019 .
This could be attributed to COVID-19. Although, it has been declining since it peaked in
2012 . These are the statistics for enforced returns of individuals, please refer to figure
1.2 for these statistics. Although, more concisely, returns of foreign national offenders
(FNO) has also been decreasing for the last decade, insinuating more success in ‘port
returns’, 2864 FNOs were returned in the UK in 2020. Therefore, we can conclude
offenders have been returning less than in the past. As well as this, often those seeking
asylum have been returned as well, although this number has been decreasing since
2010, which 1546 asylum related returns in 2020 and 10,663 in 2010 . There is an issue
behind these seemingly positive statistics. One may presume that because the numbers
of returns are decreasing that there are less cases, or that more are succeeding.
However, upon analysing the Immigration and Protection Data from Q1 2021 . The
quantity of those awaiting a decision on asylum has vastly increased. In 2011 (Q2) the
total volume of those in progress was 37, 903. In the same quarter of 2020, it has raised
to 109,456. 48,696 of these are cases aging longer than 3 years. This suggests that
there is a severe backlog of applicants that aren’t being represented, which can be
attributed to the cuts as a result of LASPO 2012. While many are not being returned as
shown in government data, this is not because the problem is resolving itself, it is
seemingly because the problem is being exasperated by an overwhelmed and
understaffed workforce, which is affecting the speed at which cases can be attended to.

Fig 1.1
Fig 1.2

In favour of legislation such as LASPO, according to the Green Paper issued by the
conservative government (find date) civil legal aid was the largest single component
part of overall expenditure in the sphere of legal aid, using the statistics that in 1993/4 it
costed £544 million . This was an increase of 635% from 1983/4 and arguably
unsustainable to continue providing legal aid to this extent to the British citizenship as
well as migrants to Britain.

Judicial Review

Those seeking asylum are often in vulnerable circumstances, some even where their
own life or the lives of their family are dependent on its outcome, as such they are more
likely to appeal or intensely seek a remedy where they can. This can often lead to
judicial review considering their case, leading to a high quantity of judicial review
applications. Moffatt writes that, ‘’ Traditionally, the remedy of judicial review has been of
critical importance to migrants in the United Kingdom given the fitful development of a
statutory appeals system.’’ . This system is important, in line with the common rule of
law, . However, the quantity of appeals that were often sought lead to a list of changes
that LASPO would introduce to reduce what was titled as ‘’unnecessary litigation. The
rules to limit standing were proposed to be adjusted from a test of ‘’sufficient interest’’ to
the claimant having a ‘’direct or tangible interest’’, . This is a significant narrower scope
and arguably subjective as to what ‘’tangible’’ can be defined as in any legal sense; for
example, it could mean tangible assets like home ownership in a claim against
deportation or whether tangibility applies to one attempting to seek asylum. This
definition would create a narrow yet subjective scope in applications for judicial review,
likely reducing the quantity of successful applications, which is seemingly the purpose of
the adjustment. A provision was also proposed to make legal aid available in judicial
review cases only where permission has been granted by the courts. These changes in
line with LASPO 2012 would have created a barrier to application for judicial review
with the purpose of limiting peoples access to justice when the public sector fails them,
it can be argued LASPO is a key part of this due to its purpose to reduce the scope of
legal aid substantially both immigrants seeking claims in judicial review.

Chapter 3

Literature Review

Among modern legal scholars, there is a collective consensus that LASPO and its
effects on immigrants’ access to legal aid is overwhelmingly negative denying
individuals the access to basic legal representation in a reasonable time frame, that only
years ago they could have accessed easily. In particular York’s article, ‘’ The End of
Legal Aid in Immigration — a Barrier to Access to Justice for Migrants and a Decline in
the Rule of Law’’ provides an excellent synopsis regarding LASPO’s effects on
migrating families and long standing residence of the UK. stating that they do not have
much of the access they previously would have after LASPO’s introduction, she also
addresses the convoluted series of prior legislation that add to the confusion of
immigration legislation. This article is from a peer reviewed journal, The Journal of
Immigration, Asylum and Nationality Law. she supervises work on client’s immigration
and asylum cases as well as Principal Legal Officer of the Immigration Advisory Service
from 2009. Thus, we can infer both the article she writes for and herself are credible and
well-read sources. This article itself has certain strengths, it opens with a short
chronology then moves into a list of the specific problems moving into titled sections
regarding various effects of LASPO and identifies the issues therein. However, a
criticism of this article is that it, much like that of other scholars such as X NAME AND Y
NAME, is one-sided in its argument and fails to address how necessary cuts perhaps
were to the legal aid sector considering the increasing demand and cases, it rather
remains solely focused chastising the decisions of government and the organisation of
legislation around legal aid. She concludes that without incentive UKBA has no
incentive to improve access to legal aid for immigrants and as such, it will not do so.
She then concludes that judicial review will be inadequate to resolve the inevitable
appeals as a result for asylum seekers and that respect for the rule of law will decline
moreso than it already has. This is a comprehensive article in the scope of information it
covers and while making a singular conclusion without acknowledging the positives
LASPO may have, its arguments are not unfounded.

In contrast to York’s article, Ann Lyon’s acknowledges that reports leading up to the
eventual implementation of LASPO were designed to simply reduce cost and improve
access to civil justice, it is arguable they did not achieve the latter in any capacity. This
article was published in ‘Contemporary Issues in Law’ a peer-reviewed journal, this
journal is ‘’ designed to cover a broad spectrum of topical issues,’’ . This journal is not
as specialized as the Journal of Immigration, Asylum & Nationality Law, it is still a
respectable and peer-reviewed journal that accepts submissions from respectable
authors, in this case, Ann Lyon. Ann Lyon is currently a member of the Law Faculty as
Swansea University, specializing in criminology. However, at the time of the publishing
of this article she was a lecturer for the School of Law at De Montfort University in
Leicester. It is notable that much of her work since this focuses on criminal law and anti-
social behaviour while this article focuses much on legal aid within civil law, however the
content of the article is well informed and details the Means test and the increasing cost
of legal aid leading up to 1998, citing reputable sources and applying a more informative
structure of laying out her research descriptively, with smaller amounts of critical
analysis limiting the usefulness as a scholastic article, a criticism of this article would be
its structure, it varies between varying darting subjects such as the contributions of
one’s own cost, yet this is broken apart from other sections detailing costs creating a
rather fragmented structure that deviates from the initial focus of a section, it would
benefit from being broken down into sections with clear purpose. The only other
drawback is that this article seems to be a more descriptive piece of work detailing
factual costs without much critical analysis aside from the in the introduction of the
article and its conclusion, however the detail within the critical analysis within the article
is well written and grammatically correct.

Conclusion

Through the examination of existing literature, empirical data and through the lens of
Bingham’s Rule of Law and analysing the actions of both the UK Government and
organisations such as UKBA, ILPA and the LAA this study aimed to explore the effects
of LASPO 2012’s effect on immigrants’ access to legal aid upon arrival and habitation to
the United Kingdom. As well as this, it aimed to compare the current scholastic opinion
to make a conclusion on the future of the degree of access immigrants will have to legal
aid in the UK. It aimed to apply recent cases and use of LASPO 2012 and the principles
of the Rule of Law to decide to what extent immigrants have access to legal advice and
representation. It found that many of the headings of Bingham’s Rule of Law can be
applied to the legal aid services within the UK however writers such as York found
conflict with article 8 as well as going as far as to say that they do not comply with the
fifth aspect of Bingham’s rules of Law.

Based on the limitations of the work conducted and LASPO 2012 itself, future
recommendations for approaches and amendments to the procedure and evaluating
factors set out within It can be suggested. Firstly, in s11(3)(a-j) it is clear that the
discretion is far too wide in the judging of qualification for legal aid and therefore able to
be shifted within the scope of what the Lord Chancellor desires at any particular time,
arguably placing too much discretionary power in one seat. These should be refined into
more specific criteria for individuals to qualify. Secondly, the Means test as discussed
outlines a series of conditions that are positively favourable considering there are
regulations that specifically apply leniency in certain asylum and immigration cases, yet
the test itself is still quite restrictive especially on households with multiple forms of
income that the government assumes an individual can rely upon. The current level of
access to legal aid asylum seekers and other immigrants have in the UK is not sufficient
as they either do not fall into scope, are returned or denied representation largely
because of the implementation of LASPO 2012 and the preceding legislation. As such,
these should be looked to be built on in future, although considering what will likely be
only increased cuts and enforced isolationism as a result of a global pandemic, it is
likely this will not be the case.

Finally, this study provides a contribution to the area of accessibility to legal aid. It has
attempted to build upon existing research by conducting its own research into primary
data revealed by transparency laws and to compare the provisions and tests set out to
apply a new context onto the true level of accessibility immigrants what must be
considered a human right in part of the rule of law. Furthermore, it provides insight into
these areas and provides an inclination for the future direction of legal aid in regards to
the concept of ‘legal aid creep’ the theory that the jurisprudence of previous successful
or unsuccessful cases will lead to narrow fields of cases that are accepted for
representation in legal aid due to the exclusivity required within it due to costing cuts
and therefore only very marginal cases will be given the representation deserving of all
who are most vulnerable. The first with the research of this study to delve into this idea.
Word Count (5973)

On balance from a purely pragmatic economic perspective, LASPO or something alike was necessary
for reasons X, Y and Z. However, it is important to note that this still does not excuse the human cost
and practical insufficiencies for all involved

Or to address the long-term underlying demand crisis as cases continue to rise and

Bibliography
Bingham T, The Rule Of Law (Penguin Books 2011)
Briggs J, 'A Brief History Of Legal Aid' (Legal Cheek, 2021) <https://www.legalcheek.com/lc-
journal-posts/a-brief-history-of-legal-aid/> accessed 3 January 2022
Brooke H, 'The History Of Legal Aid – 1945 To 1997' (Henry Brooke - Musings, Memories and
Miscellanea, 2022) <https://sirhenrybrooke.me/2016/06/16/the-history-of-legal-aid-1945-to-
1997/> accessed 4 January 2022
Donoghue J, 'The Rise Of Digital Justice: Courtroom Technology, Public Participation And
Access To Justice' (2017) 80 Modern Law Review
Henderson L, 'Legal Aid Cuts And Reforms - Chambers Student Guide' (Chambers Student,
2013) <https://www.chambersstudent.co.uk/where-to-start/newsletter/legal-aid-cuts-and-
reforms> accessed 3 January 2022
'How Many People Are Detained Or Returned?' (GOV.UK, 2022)
<https://www.gov.uk/government/statistics/immigration-statistics-year-ending-march-2021/how-
many-people-are-detained-or-returned> accessed 4 January 2022
Hudak K, and Marshall E, The Case For Broadening The Scope Of Immigration Legal Aid
(university of Exter 2021) <https://publiclawproject.org.uk/content/uploads/2021/04/Legal-aid-
briefing.pdf> accessed 4 January 2022
Hughes C, and Kenway P, 'Foreign Born People And Poverty In The UK' (Joseph Rowntree
Foundation, 2016) <https://www.jrf.org.uk/report/foreign-born-people-and-poverty-uk>
accessed 4 January 2022
'Legal Aid Cuts And Reforms - Chambers Student Guide' (Chambers Student, 2013)
<https://www.chambersstudent.co.uk/where-to-start/newsletter/legal-aid-cuts-and-reforms>
accessed 4 January 2022
Ltd L, 'Contemporary Issues In Law' (Lawtext.com, 2022)
<https://www.lawtext.com/publication/contemporary-issues-in-law> accessed 4 January 2022
Lyon A, 'Changes To The Legal Aid System And Increasing Access To Justice: Were The
Conservative Governments Proposals For Changes To The Legal Aid Scheme Either Necessary
Or Constructive?' (2022) 3 Contemporary Issues in Law
Raz J, The Authority Of Law (Oxford University Press 2009)
Robins J, Legal Aid In 21St-Century Britain (The Guardian 2009)
Silverman S, Griffiths M, and Walsh P, 'Immigration Detention In The UK - Migration
Observatory' (Migration Observatory, 2021)
<https://migrationobservatory.ox.ac.uk/resources/briefings/immigration-detention-in-the-uk/>
accessed 4 January 2022