Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Barnardo’s (LA 12)

1. Barnardo's understands that the Immigration Law Practitioners’ Association (IPLA) have made representations to the Public Bill Committee on a number of issues relating to the provision of Legal Aid to people at risk of deportation.

2. The Bill excludes all immigration cases from Legal Aid except for asylum cases, challenges to immigration detention (such as bail applications) and cases before the Special Immigration Appeals Commission. Barnardo’s agrees with the ILPA’s position that this general exclusion is in conflict with the Government’s ‘four factors’ analysis and risks serious undesirable and perverse outcomes.

3. These ‘four factors’ relevant to what should remain in scope for Legal Aid are: [1]

a. Importance of the issue; the following are of high priority: cases concerning life, liberty, physical safety, homelessness, intervention by the State and holding the State to account;

b. Individual’s ability to present his/her own case, with consideration given to whether proceedings are adversarial or inquisitorial and whether litigants are "from a predominantly physically or emotionally vulnerable group";

c. Availability of alternative sources of funding, with Conditional Fee Agreements, legal insurance and trade unions identified; and

d. Availability of alternative means of resolution, with alternative sources of advice, ombuds and complaints procedures identified.

4. Barnardo’s wishes to make clear that it supports the IMLA’s position that legal aid for children who are a party to immigration proceedings should be preserved.

Children

5. As the IMLA explains:

The Government revised its original proposals concerning family law to take into account "that children are not able to represent themselves". [2] Children are no better placed to represent themselves in immigration proceedings. The exclusion for immigration cases in the Bill particularly affects children in the following situations:

a. Separated (unaccompanied) children, other than those pursuing asylum claims. This will include children, some of whom will have been in the UK for several years, applying for an extension of discretionary leave and who are being cared for by a Local Authority.

b. Children facing removal from the UK along with a parent, or separation from a parent by reason of that parent’s removal where their interests require separate representation.

6. Where a separated child with no Legal Aid and no income is in the care of a Local Authority, that Local Authority may be looked to for funding for representation. [3] This would constitute a substantial (and unpredictable) transfer of cost from the Ministry of Justice to Local Authorities [4] (something antithetical to the Government’s stated antipathy to public expenditure "cost shifting" [5] ); and would risk increasing costs because paying privately for representation will cost more than is paid under Legal Aid rates. This group may therefore, uniquely among the immigration cases, be able to find an alternative source of funding, but is this desired?

7. As to family removals, the Supreme Court and its predecessor have highlighted that there will be cases where the child needs separate representation. Two cases were, in the view of those courts, examples of this. In EM (Lebanon) [6] , removal of him and his mother to Lebanon would have resulted in his custody being given to his estranged and abusive father with permanent separation from his mother. In ZH (Tanzania) [7] , the effect of the children’s mother’s removal would either be to separate the British children from their mother or to remove them from their settled life in the UK and their father.

8. These cases involve international and domestic obligations concerning the best interests of the child [8] and the safety and welfare of children [9] . The State (the UK Border Agency, which has been found wanting in this regard [10] ) must be held to account. The Government is correct that children are not able to represent themselves. The exclusion of Legal Aid for children in immigration proceedings as intended by this Bill offends the Government’s ‘four factors’-analysis; and does so with additional undesirable and perverse risks.

July 2011


[1] Proposals for the Reform of Legal Aid in England and Wales : Consultation Response Ministry of Justice, June 2011 paragraph 6 (page 11).

[2] Consultation Response , op.cit., paragraph 50, page 21; Bill Schedule 1, Part 1, paragraph 13.

[3] Community Legal Service (Financial) Regulations 2000 SI 200/516, regulation 11, but see the Legal Service’s Commission’s Funding Code, Chapter 29 Immigration at paragraph 29.11.2..

[4] With implications for the Home Office/UK Border Agency budget in view of the grant arrangements by which Local Authorities receive payment for care responsibilities toward separated children seeking asylum.

[5] Hansard HC, 29 Jun 2011 : Column 1063 ( per Jonathan Djanogly MP, Parliamentary Under Secretary of State for Justice).

[6] EM ( Lebanon ) v Secretary of State for the Home Department [2008] UKHL 64.

[7] ZH ( Tanzania ) v Secretary of State for the Home Department [2011] UKSC 4.

[8] Article 3.1, 1989 UN Convention on the Rights of the Child.

[9] Section 55, Borders, Citizenship and Immigration Act 2009.

[10] On 18 March 2011, ILPA wrote to the UK Border Agency having reviewed the decisions of the higher courts in respect of the Agency’s duties under section 55 and the UN Convention on the Rights of the Child ( op.cit. ), which show serious failings in several parts of the Agency.

Prepared 14th July 2011