The recent and proposed cuts to legal aid in England and Wales represent a profound attack on the rule of law. The proposed cuts will significantly limit access to criminal legal aid, and virtually abolish legal aid for migrants and non-EU citizens seeking to redress alleged civil wrongs, including people suing the Government for alleged wrongful treatment at the hands of British state actors overseas. This blog outlines key problems with the proposed cuts from the perspective of migrants.
The cuts introduced on 1st April, 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2102) and the proposed further cuts to civil legal aid will make it hard for anyone without money to challenge poor United Kingdom Border Agency (UKBA) decision-making. More details can be found in my recent article in the Journal of Immigration Asylum and Nationality Law, “The End of Legal Aid in Immigration – A Barrier to Access to Justice for Migrants and a Decline in the Rule of Law” (citation: JIANL 2013 vol 27 no 2; available on Westlaw and other legal databases).
LASPO 2012 removes legal aid for immigration issues except:
- Asylum and humanitarian protection claims
- Claims by victims of trafficking who have been formally accepted as trafficking victims
- Claims by victims of domestic violence who can show specified evidence, such as a police report, a court injunction or medical evidence
- A claim against unlawful detention (but not for the immigration issues underlying the detention)
The MOJ consultation paper ‘Transforming Legal Aid’ aims to introduce competitive tendering into criminal legal aid. However, other changes would virtually remove access to justice both civil and criminal from all but a few migrants. Importantly, access to justice would be removed from those who formally should continue to qualify for help. The crucial proposals are 2:
1. A residence test for all legal aid.
a. This aims to bar access to legal aid to ‘visitors’ and ‘those who have never set foot in the UK’, but, by proposing to require at least 1 year’s lawful residence in the UK, would in practice cut off access from many who would remain entitled. This is because the UKBA’s records are so inaccurate and their bureaucracy so inefficient that it cannot accurately confirm whether or not a person has the legal right to be in the UK, and, for many, it would require a good immigration lawyer to ascertain whether someone has the legal right to remain or not. People affected include (not an exhaustive list):
i. Long-term resident Commonwealth citizens with the right of abode, and no documents
ii. Children born in the UK of migrant parents, or who arrived in the UK as children, who are not in touch with their parents: who may have leave to remain – or British citizenship – and not know this
iii. EEA nationals and their family members, who are not required to make any application for permission to stay, or to hold any document showing their rights
iv. Those granted refugee status or humanitarian protection who have not yet had that status for 1 year
v. Child asylum-seekers refused asylum but granted discretionary leave to remain, who have not yet had that status for 1 year
vi. People who have made in-time applications to the UKBA for further leave to remain, whose paperwork is stuck in a backlog, undecided and inaccessible
b. Even the exclusion of ‘visitors’ and ‘those who have never set foot in the UK’ represents an attack on access to justice and the rule of law.
- i. A visitor to the UK may well face being accused of a crime and require legal assistance with their defence, or suffer a civil wrong where legal action if carried out by a British citizen would be eligible for legal aid, such as domestic violence or wrongful eviction. These proposals are effectively saying that it is acceptable to wrongly accuse a foreign visitor of a crime, or inflict a civil wrong on them.
- ii. Far more important is the proposal to exclude ‘those who have never set foot in the UK’. This would exclude anyone subject to UK state action overseas, such as those detained and ill-treated by British forces in Iraq or Afghanistan, or those who suffered torture at the hands of UK colonial administrations such as the Mau Mau activists in Kenya, and is clearly aimed to exclude any further claims from such groups. The effect of this would be to leave those victims without a legal remedy – which, apart from leading to injustice for individuals, would inevitably contribute to festering resentment and even violent action against UK troops, bureaucrats and businesses in current and future war zones.
2. To put all legal work on judicial review claims at the financial risk of the legal aid provider, who would not be paid for any casework unless and until formal permission to proceed to a full hearing is granted by the High Court. This is a pernicious and direct attack on the rule of law and will particularly affect all individuals subject to State decisions and actions, especially immigration and asylum decisions, which amount to around 2/3 of all judicial review applications (around 8000 out of around 11,000 applications last year). The high proportion of legal challenges against the UK immigration and asylum system is not surprising: the Home Office has faced major criticisms for more than a decade. In 2006 John Reid, Labour Home Secretary, discovered a backlog of 450,000 unresolved asylum claims, and over 100 ‘foreign national prisoners’ who had not been deported at the end of their sentence. He declared the Home Office ‘not fit for purpose’, and set up the UK Border Agency as an arms-length agency. As the recent report to the Home Affairs Committee shows, very little has changed, and the current Home Secretary has decided to take immigration and asylum back into the Home Office, clearly with little confidence that the problems of delays, backlogs and poor decision-making will be solved, since this MOJ proposal will remove individuals’ ability to challenge its decisions. This is because the majority of immigration and asylum judicial review applications do not reach the permission stage. Precisely because of the endemic poor management and decision-making in the UKBA, a desperate migrant’s only legal recourse is to issue a judicial review claim, and the first time a case is properly looked at is when the UKBA’s lawyers receive the claimant’s court application. Very often the illegality is clear, and a settlement is offered, agreeing to look at the claimant’s case properly and in a timely manner. Thus many immigration and asylum judicial reviews are compromised by the Secretary of State precisely because the decisions are clearly wrong. Other classes of claims, such as where many claimants’ applications are stayed behind a test case (such as whether removal of asylum-seekers to Greece was lawful), never reach the permission stage, but are settled when the main case is settled. For these reasons very few immigration and asylum judicial review claims carried out under legal aid would receive payment. This would render virtually all judicial review work uneconomic on legal aid and leaving migrants with no effective recourse to the court.
Over 5000 responses were made to the 2010 proposals which resulted in LASPO 2012: virtually none were in favour. Around 13,000 responses have been made to ‘Transforming legal aid’, and those opposed include institutional defendants such as Treasury Counsel (government lawyers) and local authority housing and social services departments as well as migrant campaigning groups, advice agencies and lawyers. It appears that as well as not caring about the likely increased costs and inconvenience, the government does not understand, or does not care, about access to justice and the impact of the rule of law. But the effects on society, on our respect for the law and legal processes, will be severe.
 At the most recent Home Affairs Committee hearing on the work of the UK Border Agency, the chief executive admitted that some 55,000 new applications had not even been logged into the system, in addition to the many categories of significant backlogs amounting to around 500,000 applications. On 27/3/2013 Theresa May, Home Secretary, declared the UKBA as ‘not fit for purpose’ and proposes to bring the immigration and asylum decision-making process back into the Home Office. See here.
 See my article referred to above for extensive references to reports dealing with the UKBA’s ‘culture of disbelief’ and poor decision-making generally.
 Supra fn 1
 Supra fn 1
 ‘Treasury solicitors’, the legal department which acts for all government departments and agencies
 See the MOJ Response to the previous consultation which led to LASPO, Introduction, para 2