Guest contributor: Steve Symonds is the Legal Officer for the Immigration Law Practitioners’ Association and has worked on the Legal Aid, Sentencing and Puinishment of Offenders Bill. ILPA’s latest briefing on legal aid can be found here.
The Legal Aid, Sentencing and Punishment of Offenders Bill passed through the Commons and on to the Lords at the beginning of the month. The Bill’s provisions on legal aid remain largely unchanged, though the Government made modest improvements to ensure legal aid will cover all asylum claims and appeals, and will be available for some victims of domestic abuse making applications for indefinite leave to remain following the breakdown of their relationship.
Victims of domestic violence
The second of these changes was made in recognition of the heightened risk victims of domestic abuse – these are usually women who remain trapped in possibly life-threatening relationships for fear of the immigration consequences of escape. However, the change in the Bill only affect spouses or partners of British citizens or settled persons.
Others face the very same risks, including the spouses or partners of refugees and of European citizens. In the final stages of the Bill in the Commons, Caroline Lucas MP of the Green Party pressed the Government about these other victims of domestic abuse; and the Minister, Jonathan Djanogly MP, indicated the Government was looking at the matter further.
It is to be hoped the Bill will be further amended so that no victim of domestic abuse is left in an abusive relationship because she/he cannot get legal advice and representation to help deal with immigration consequences of leaving the partner on whom her/his immigration status depends.
Complex immigration cases and family reunion
The other key area on which the Government agreed to think further related to what the Minister described as “complex” immigration cases. He did not define what he understood to be a complex case, but raised this in response to Simon Hughes MP, Liberal Democrat, who had tabled an amendment to bring refugee family reunion cases back into scope for legal aid. While Simon Hughes resisted calls to put his amendment to a vote, he made clear this was an issue he expected to win. In the Lords, this Bill will be the responsibility of Simon Hughes’ party colleague, Lord McNally.
The often desperate situation of traumatised refugees in the UK suffering the heartache of continued family separation, and the often dangerous situation of family members in refugee camps and other uncertain and unsafe circumstances overseas surely indicate why requiring family members to pursue applications and appeals without legal representation is neither reasonable nor humane. There is hope, then, that the Government will relent and allow legal aid for these cases.
Other key issues that were raised in the Commons concerned ‘onward appeals’ and judicial review. Onward appeals are appeals against a decision of the immigration judge, who hears the first-instance appeal against a decision of the UK Border Agency. These onward appeals may be brought by the individual appellant where his appeal has been dismissed or by the UK Border Agency where the appeal was allowed. However, onward appeals can only be brought on points of law.
Non-lawyers cannot reasonably be expected to deal with the above proceedings, which include cases before the Upper Tribunal, Court of Appeal and Supreme Court. Before these courts, the UK Border Agency is often represented by teams of lawyers.
Elfyn Llwyd MP, of Plaid Cymru, and Simon Hughes each tabled amendments to ensure legal aid could be available for these onward appeals. However, there was insufficient time to debate these amendments. Nonetheless, it can be expected these issues will be debated in the Lords.
As for judicial review, Elfyn Llwyd spoke eloquently about several flaws in the Bill. Judicial review is often the last chance someone has to stop the UK Border Agency acting unlawfully to remove her from the UK. The Bill would, in many cases, exclude legal aid for these cases. This is said to be on the basis that people will have already had the opportunity to present their case at an appeal hearing. However, there will be no legal aid for any previous appeal, and in some cases people will not have had any opportunity to appeal.
The very reason someone may need judicial review is because, having been without any legal advice or representation for previous immigration proceedings, she simply has not understood what evidence was needed, how to get it and how to present it. She may also simply not have been able to afford that evidence. The flaws in the Bill concerning judicial review are so serious, there must be further attention to these provisions in the Lords.
Of course, there will be many other issues to be debated in the Lords (just as there were in the Commons). Among immigration-related issues, which have yet received little or no attention, the situation of children in immigration cases and victims of trafficking are matters with which it is expected the Lords will be concerned. However, there are several others, and the situation of those in immigration detention, whom the Government intends should be excluded from Legal Aid to address their underlying immigration problem which is also the cause of their detention, is of particular concern.