Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Refugee Children’s Consortium (LA 37)

Introduction

The Refugee Children’s Consortium [1] (RCC) is extremely concerned that the Bill as it is currently devised would generally remove all immigration cases, except asylum cases and challenges to immigration detention, from the scope of Legal Aid.

We would like to see the Bill amended t o ensure that children and vulnerable young people involved in immigration cases are able to access legal aid in order to protect their rights to enter and remain in the UK. The regulation making powers would permit the Secretary of State to add other categories of person so as to include victims of domestic violence, victims of human trafficking and exploitation, and former unaccompanied migrant children.

This would apply to all non-asylum cases without distinction, including cases of children and families, even though the Government recognised in its consultation paper that immigration cases involve human rights, especially the right to family and private life (Article 8 of the European Convention on Human Rights).

Suggested amendment:

Amendment to Part 1 Schedule 1 Paragraph 25 (Immigration: rights to enter and remain)

Page 109, line 11 insert at end –

( ) Civil legal services provided in relation to rights to enter and to remain in the United Kingdom to a specified person

Page 109, after line 33 insert –

"specified person" means a person –

(i) under the age of 18; or

(ii) another other class of person as may be specified by the Secretary of State in regulations.

The Justice Secretary has made clear the importance of support for children who are party to proceedings [2] . Yet, while in the Bill there is provision for "children who are parties to family proceedings", and "unlawful removal of children from the United Kingdom", legal aid is not to be provided if they are party to immigration proceedings , including where as a consequence of those proceedings they face unlawful removal from the United Kingdom by the State . This exclusion would have several detrimental effects for the children and families with whom RCC’s members work.

Furthermore, the Government has clearly not co nsidered the specific impact on children and young people [3] , including the impact on children’s rights under the UN Convention on the Rights of the Child, which the Government earlier this year stated its commitment to considering in full when making new policy and legislation [4] . Our key concerns are set out below:

Separated children applying to extend their leave to remain in the UK

Most separated (or unaccompanied) children in the UK asylum system come from countries experiencing armed conflict or serious repression, including Afghanistan, Iraq, Iran, Eritrea and Somalia. Many are granted discretionary leave to remain for a period of up to 3 years (so a child aged 13 years will be granted leave until the age of 16 ), after which it is generally necessary for the child to make an application to extend their leave to remain.

The Bill would only permit Legal Aid if their application to extend their leave is a claim for asylum . However, the safety or welfare of the child if returned may or may not raise Article 3 (the prohibition of torture and inhuman or degrading treatment or punishment), but will be likely to raise issues under Article 8 (the child’s private and/or family life) including the UK Border Agency’s obligations under the 1989 UN Convention on the Rights of Child and its statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009 . Some children will have formed relationships over the time they have been in the UK and their family, friendships and identity will be firmly based here. Many have no significant or lasting connection to their home country. Some may have no connection to their country of origin whatsoever. Several recent cases have highlighted the failings of the UK Border Agency in applying their legislative duties to protect children’s rights, safety and welfare. It is completely unreasonable to expect children, or young people who have been in the UK since they were a child, to navigate these complex legal issues without professional representation.

Victims of human trafficking and exploitation

The Bill excludes immigration cases brought by victims of trafficking and exploitation , unless the victim also makes an asylum claim. However, not all trafficking cases involve an application for asylum and victims of trafficking are often children or young people who are extremely vulnerable, and may face an increased risk of exploitation as a result . Someone’s immigration case may also involve additional procedural, legal and evidential complexity because of the need to establish that he or she is a victim of trafficking. The exploitation to which a victim will have been subjected often means that the impediments to pursuing a case without legal advice and assistance are exacerbated by mental illness or trauma.

Judicial Review and holding the UK Border Agency to account

Having robustly defended the preservation of Legal Aid for judicial review in the Legal Aid Green Paper as necessary to hold the state to account and ensure that state power is exercised responsibly, the Government now proposes specific exclusions in immigration cases where there have been previous proceedings or decisions in the preceding year. T hese affect all immigration cases , including those involving children and will result in the UK Border Agency, which is frequently found by the Court to have made unreasonable or unlawful decisions, being relieved of the scrutiny the Government has generally acknowledged to be vital.

Conclusion

At the heart of the RCC’s concerns is the well-being of some of the most vulnerable children in the UK . Our consultation response set these out in detail, and we are dismayed to see that the Bill has not been amended to address them. It is vital that all children and young people are guaranteed the protection and support to which they are entitled.

July 2011


[1] Members of the Refugee Children's Consortium are: Action for Children, Asphaleia Action, Asylum Aid, AVID (Association of Visitors to Immigration Detainees), Bail for Immigration Detainees, BASW – The College of Social Work, BAAF (British Association for Adoption and Fostering), Catch 22, Children's Legal Centre, Child Poverty Action Group, Children's Rights Alliance for England, The Children's Society, DOST, Family Rights Group, The Fostering Network, The Immigration Law Practitioners' Association (ILPA), JCORE, Medical Justice, The Medical Foundation for the Care of Victims of Torture, National Care Advisory Service, NCB, NSPCC, The Prince’s Trust, RAMFEL, Refugee Council, Refugee Support Network, Scottish Refugee Council, Student Action for Refugees (STAR), Voice, The Who Cares Trust, Welsh Refugee Council. The British Red Cross, Barnardo’s, Office of the Children’s Commissioner (England), UNICEF UK and UNHCR all have observer status.

[2] Parliamentary Question on 21st June 2011:

[2] http://www.publications.parliame n t.uk/pa/cm201011/cmhansrd/cm110621/debtext/110621- 0 001.htm

[3] Parliamentary Question on 7th June 2011:

[3] http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110607/t e xt/110607w0006.htm#11060826003959

[4] Written Ministerial Statement from the Department for Education in response to the independent review of the Children’s Commissioner : http://media.education.gov.uk/assets/files/pdf/w/written%20ministerial%20statement%20%20%20office%20of%20the%20childrens%20commissioner . pdf

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Prepared 18th July 2011