Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Refuge Action (LA 22)

About Refugee Action

Refugee Action is an independent, national charity working to enable refugees to build new lives in the UK. We provide practical support for newly arrived asylum seekers as well as a long-term commitment to their settlement. Through our ‘One Stop Service’ (OSS), ‘Gateway Protection Programme’, ‘Refugee Integration and Employment Service’ (RIES) and 'Choices' voluntary return service, we give independent, confidential advice and information to asylum seekers and refugees on a breadth of topics. These range from UKBA asylum support, integration and employment following a successful decision, education, health, voluntary return and complex issues such as domestic violence, racial harassment and trafficking.

We do not provide legal advice ourselves, but refer asylum seekers to legal advisors for assistance with their asylum claim. Sadly, in many regions in which we work there is a marked lack of solicitors able to offer legally funded advice to asylum seekers, particularly at appeal stage and beyond.


1.1 Refugee Action understands the current economic climate in which decisions about the future funding of legal aid are being determined, and that a reduction in the legal aid budget could play a significant role in allowing the Department to reach its target of a 23% overall reduction. With this in mind, we agree that some areas of legal aid funding should continue without question, that legal aid should be subject to people’s means, and should be fair, balanced and sustainable.

1.2 Refugee Action agrees with the Department’s analysis that asylum determination matters rate highly on a spectrum of objective importance and therefore that legal aid should remain available for legal help and representation on issues relating to asylum claims. We further agree that asylum seekers are one of the most vulnerable groups in society and are particularly disadvantaged with regard to their ability to engage in the litigation process. Many are unable to represent themselves during hearings as, despite the availability of free interpreters, they may be suffering from trauma and post-traumatic stress, often the result of having been treated unjustly by authorities in their countries of origin. They are also unlikely to be familiar with the workings of the UK justice system, and less likely to be able to access other sources of funding, such as friends or family, if legal aid were not to be available.

2.The withdrawal of legal aid funding for immigration, with particular mention of Article 8 [1] cases

Amendment suggested to the Committee:

Page 109, line 10, (Schedule 1) after ‘3’ insert ‘or Article 8’

2.1 Refugee Action recognises that, in the current economic climate, the Government

considers the area of immigration to be less of a priority than asylum, and thus lower on the spectrum of objective importance. However, it is the case that some immigrants are particularly vulnerable (for example trafficked people, victims of domestic violence, family reunion applicants). For this reason, we would advise against removal of legal aid for all immigrants. However, with regard to Refugee Action clients, the withdrawal of legal aid funding for Article 8 cases is of particular concern, dealing as it does with a very complex area of law in which it is unreasonable to expect individuals to be able to represent themselves. In general, individuals and families who have lived and established themselves for a significant number of years in the UK may have the right to remain under Article 8 and would likely require legal aid to secure this.

2.2 For instance, Refugee Action has particular concern for those in the UK

with a grant of Humanitarian Protection (under provisions laid out in the 1971

Immigration Act), who have established families in the UK and who may rely on Article 8 arguments to avoid removal if protection is no longer required. Refugee Action believes that such cases should be treated as asylum cases in terms of eligibility for legal aid, taking into account the circumstances under which the original immigration status was decided. Furthermore, for applicants who have not been able to access adequate evidence to successfully pursue a claim for asylum or Humanitarian Protection but who nevertheless have a well-founded fear of return to the country of origin, an Article 8 application may be their only option. However, they could not be expected to progress this without legal expertise. As such, it is imperative free legal advice should be available. Cases which in the past might have invoked Article 8 arguments might in future be treated as asylum applications in order for legal aid to be accessed, thus increasing costs by increasing asylum applications.

2.3 Another important legal area likely to be affected will be advice on nationality

law, in which foreign nationals could be removed or advised to return voluntarily

in ignorance of the fact that their children are British citizens.

2.4 In addition, the removal of legal advice for immigration cases could conceivably

lead to an increase in the number of asylum applications and subsequent costs. A lack of legal advice, compounded by the reduction in voluntary sector assistance, will exacerbate existing confusion with regard to the immigration and asylum systems and the different categories and criteria within them. Our Area Managers report seeing clients who had previously entered the regular immigration system, despite having a viable claim for asylum, who may understandably exercise their right to asylum if unable to access legal aid for immigration purposes. There may be another group of people who in contrast have no protection need but, if unable to access legal aid for immigration advice, may mistakenly consider themselves eligible for asylum and make a claim. Both instances would result in an increase in the number of recorded asylum applications, which for the last year available (2010) was relatively low, at just under 18,000. [2]

2.5 On the removal of legal aid funding for immigration matters more generally,

Refugee Action notes that many solicitors offer both asylum and immigration

advice, yet rely strongly on immigration cases, for which they may currently be

able to reclaim additional fees. The removal of legal aid from this area of work

may result in solicitors choosing to withdraw from providing immigration advice

and also asylum advice; this would have the effect of reducing the availability of

legal advice to asylum seekers which is, of course, not the Department’s


3.The withdrawal of legal aid funding for family reunion

Amendment suggested to the Committee:

Page 109, line 28, (Schedule 1), at end insert -

and includes the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons done at Geneva on 25 July 1951

3.1 Refugee Action is further concerned about the withdrawal of legal aid funding for family reunion matters. The Government’s response to its consultation [3] claims that these applications are ‘generally straightforward’ and that it is a viable alternative for family members to claim asylum in their own right. However, such cases are not straightforward for the following reasons:

a) Family members are outside of the UK and hence cannot claim asylum. To deny family reunion increases the risk they will make hazardous journeys to the UK.

b) The UK Border Agency routinely requires DNA testing to be able to establish family relationship, yet it does not provide or pay for testing. Without legal aid to pay for tests, many applications will fail unfairly.

3.2 Refugee Action believes that applications for family reunion for refugees should be

treated as asylum matters, rather than as immigration matters, and that the Bill should be amended as such. In cases in which an individual has been granted refugee status in the UK, the right to family reunion is based on that individual’s need for protection, which falls at the high end of the spectrum of objective importance. In such cases, dependents who remain in the country of origin may be at a high risk of persecution, compounded by their relative’s application for asylum. This is particularly relevant to women and children, whose husband/father has left the country, and who are especially vulnerable. In asylum cases, it is simply not possible, for fear of persecution, for that individual to return to his family in the country of origin, and therefore refugee reunion applications should not be treated in the same way as other family immigration cases.

Furthermore, the entitlement is restricted to spouses and dependent children, which will by definition limit the number of applications.

3.3 The above amendment preserves legal aid for family reunion applications by applying Recommendation B of the Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. [4] Recommendation B of this document emphasises the right of refugees to family life and recommends that:

‘Governments to take the necessary measures for the protection of the refugee's family, especially with a view to:

(1) ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country

An alternative amendment with the same intention would be:

Page 109, line 11, (Schedule1) after sub-paragraph 1 insert new subparagraph -

() Civil Legal Services provided to an individual for a matter arising out of any rule laid down under section 1(4) of the Immigration Act 1971 making provision for family members to join a recognized refugee in the UK

4.Provision of advice and information services by

Amendment suggested to the Committee:

Clause 26, page 20, leave out lines 37 to 38

4.1 Refugee Action is concerned that the department has chosen to retain the

proposal to work towards a mandatory single gateway by telephone for legal aid, despite the majority of consultation respondents being opposed, and would appreciate further clarification with regard to how the service will be provided and how its impact will be monitored, either by way of the above probing amendment or during the clause stand part debate on Clause 26.

4.2 We are encouraged to read in the Government Response that the use of the helpline will not be mandatory for individuals in detention, for those in an emergency or for those who have already established a face-to-face relationship with a legal provider [5] . We are also encouraged that the approach taken applies the telephone service to four areas of law initially, not including immigration/asylum, with the intention to monitor the impact of the change.

4.3 Refugee Action is however concerned that much of this detail has been deferred to secondary legislation. We have the following reservations about the potential roll-out of the service:

· The majority of individuals accessing the service will be British nationals, and no clarification has been given with regard to how the service will cater for people with little or no English, nor knowledge of the legal system in England and Wales.

· With regard to asylum seekers, it is inappropriate for telephone helpline staff to be expected to ascertain whether an individual is eligible for legal aid. It is quite likely that asylum seekers will not wish to give details of their situation and reason for leaving their country of origin, which may be highly sensitive, to a stranger over the telephone, and as a result may be inaccurately considered to be in the immigration category and therefore not entitled to legal aid to further their asylum claim. This would be in direct contradiction to the principle that the Department has identified, that asylum claims rank highly on the spectrum of objective importance and therefore are deserving of legal aid. If the telephone service goes ahead, we would be interested to input into the development of telephone scripts and training of helpline staff to ensure asylum seekers are correctly identified.

· For those asylum seekers who are placed in the correct category and therefore provided with access to legal aid over the telephone, there are further concerns. If Language Line is to be used, as well as proving inefficient during previous uses, we would have concerns with regard to how well a one-to-one relationship can be developed, over the telephone, between an asylum seeker and their legal adviser. In its work with clients, Refugee Action is aware that a certain level of trust between client and adviser enables more effective communication; research evidence exists to supports this. [6] For example, victims of rape or torture often take several months to disclose their experiences because it takes this length of time for them to feel safe enough with their legal advisor to do so. The same level of trust is unlikely to be built up by telephone.

July 2011

[1] Article 8 of the European Convention on Human Rights – the right to respect for private and family life

[2] Home Office (2011) Control of Immigration: Quarterly Statistical Summary, Quarter 1 2011

[3] Ministry of Justice (2011) Reform of Legal Aid in England and Wales: the Government Response

[4] United Nations (1951) Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons

[5] Ministry of Justice (2011) Reform of Legal Aid in England and Wal es: Government Response, p. 166

[6] ICAR (2010) ‘Justice at Risk: Quality and value for money in asylum legal aid – Interim Report’

Prepared 18th July 2011