Guest post by Alison Harvey, General Secretary, Immigration Law Practitioners Association (ILPA) http://www.ilpa.org.uk
Responses to the Ministry of Justice consultation on proposed cuts to legal aid have not yet been published. Nor has the Government announced the outcome of the consultation. The House of Commons Justice Select Committee has held an enquiry into legal aid, taking evidence from Government and others. It has published its report and all the evidence submitted to it, which provides an insight into the available evidence. Individual organisations have published the evidence they have submitted to the Government and umbrella organisations such as the ‘Justice for All’ campaign have published overviews of this evidence.
The proposed cuts are to the ‘scope’ of legal aid, the matters to be funded at all; to the thresholds for financial eligibility for legal aid and to the remuneration paid to those providing the advice and representation. There are also proposals to change the way that the legal aid system is run, for example that those wishing to obtain legal aid all pass through a telephone gateway. Changes to ‘scope’ will require primary legislation and a draft bill could be presented to parliament as early as May 2011. Initially it was stated that cuts to remuneration would come into force in Autumn 2011 and changes to scope no earlier than 2012 but this timetable is not set in stone.
The Government proposes to remove all legal aid for immigration (as opposed to asylum cases) cases, at the stage of making an application to the Home Office and from any appeals against refusal, including onward appeals where a person won before the immigration judge and the Home Office appealed this decision. These include cases where arguments are based on the right to family and private life under Article 8 of the European Convention on Human Rights, and cases where the person faces removal/ deportation from the UK.
The exceptions would be that people in immigration detention would still get legal aid to challenge their detention (although not to help with their immigration cases) and national security cases before Special Immigration Appeals Commission would still get legal aid. It is proposed to cut legal aid from asylum support cases (applications from people seeking asylum for housing and subsistence). Cuts to other areas of legal aid, such as welfare benefits and housing, will affect poor migrants and refugees, as they will affect all who are poor.
The Government has proposed retaining legal aid for judicial review. However, the Judges Council, in its written evidence to the Justice Committee and the Rt Hon Sir Anthony May, Lead judge in the Administrative Court, has suggested that there is the potential to cut legal aid for judicial review, highlighting immigration as an area where there are savings to be made. This recalls arguments made (largely unsuccessfully) by the judiciary during the passage of the Bill that became the Borders, Citizenship and Immigration Act 2009 in the context of proposals to transfer judicial review applications to the Immigration and Asylum Chamber of the Upper Tribunal.
Opposing the cuts: what can I do?
- Join an umbrella organisation such as Justice for All to work with others and make use of their resources, including model letters, in your campaigning;
- Act locally: local papers, local counsellors, local organisations. Work with others in your area or field of specialism; make sure they include concerns about immigration advice in their arguments against cuts in general, or cuts to legal iad;
- Invite MPs, councillors and other decision-makers to firms and organisations giving advice to see surgeries in action so that they can understand the effect of the cuts;
- Get people who have benefited from legal aid in immigration and asylum to speak to MPs etc. and also to write about how it assisted them. Similarly, encourage local support groups who do not give advice but will be picking up the pieces in working with those who will have no access to advice to speak out.