Legal Aid, Sentencing and Punishment of Offenders Bill

Additional Memorandum submitted by the Refugee Children’s Consortium (LA 38)

Introduction and key concerns

1. The Refugee Children’s Consortium (RCC) is a group of NGOs working collaboratively to ensure that the rights and needs of refugee children are promoted, respected and met in accordance with the relevant domestic, regional and international human rights and welfare standards. Our membership includes leading children’s and refugee NGOs, bringing together a significant body of expertise in dealing directly with asylum seeking children and safeguarding and promoting children’s welfare.

2. Children in the immigration and asylum processes are particularly vulnerable, and in need of specific protection and assistance not only because of the uncertainties and experiences associated with their status. They also face further difficulties, such as language barriers, inconsistent education experiences, and a lack of consistent support. It is for these reasons that the RCC is especially concerned about the impact of proposed cuts to legal aid. There has been recognition within the Bill that children have different needs from adults within the legal system, recognizing in relation to family law, "that children are not able to represent themselves". [1] The Justice Secretary has made clear the importance of support for children who are party to proceedings [2] . 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. Certain limited changes have been made, but this recognition has not been applied consistently. However children are no better placed to represent themselves in immigration proceedings. The exclusions from legal aid particularly affect children in the following situations:

· 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.

· 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.

· Victims of trafficking who have an immigration case, but do not make an asylum claim

· Children involved in refugee family reunion cases

3. The Government has clearly not considered the specific impact of the Bill 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] .

UK domestic and international commitments to protecting children

4. The Government is bound by UK and international law to make the welfare of the child the primary consideration in any legal proceedings involving children and to ensure children’s access to justice, including through the provision of advice and representation:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

Article 3 of the United Nations Convention on the Rights of the Child

"Children should have access to free legal aid, under the same or more lenient conditions as adults."

The Council of Europe guidelines on child-friendly justice [5]

While this is acknowledged in the Bill (e.g. see Schedule 1, part 1, para. 15, EU and international agreements concerning children), in practice it is being proposed that thousands of children’s cases are taken out of scope.

5. The Supreme Court and its predecessor have highlighted that there will be family removals cases where the child needs separate representation. Two recent cases were, in the view of those courts, examples of this. In EM (Lebanon) [6] , removal of the child 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. 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) must be held to account.

The unique challenges of immigration law

6. In immigration cases, there are no alternative means of resolution. Neither an ombuds nor complaints process can address the question of a person’s entitlement to continue to reside in the UK. Immigration is peculiar in that advice and representation in this area are heavily regulated, with criminal sanctions for non-compliance. [10] Charities and other advice organisations, if unable to meet the requirements of the regulatory scheme, are thus prohibited from filling any gap that may be left by the removal of Legal Aid.

7. Yet the Government has suggested that clients faced with problems that have been removed from the scope of legal aid will be able to seek advice from voluntary sector providers. Young people are particularly vulnerable, as local authority funding cuts mean that the availability of targeted advice from the voluntary sector is being drastically reduced. Research suggests that a quarter will close this year, and a further half will operate at a reduced level. [11]

8. Without legal aid, individuals will be unable to raise funds themselves, and some may take the risk of exposing themselves to serious exploitation. 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. [12] This would constitute a substantial (and unpredictable) transfer of cost from the Ministry of Justice to Local Authorities [13] (something antithetical to the Government’s stated antipathy to public expenditure "cost shifting" [14] ); and would risk increasing costs because paying privately for representation will cost more than Legal Aid rates.

9. Retaining legal aid for children and young people would cut bureaucracy and reduce delays in the system. In the absence of a blanket exemption for children and young people from the cuts to scope, it is likely that lawyers would apply for legal aid for most of these clients on a case-by-case basis under the Exceptional Funding Scheme, which provides for legal aid to be granted where it would not be reasonable or in the interests of justice for vulnerable clients to present their own case. Bureaucracy and administrative costs would increase substantially, leading to delays which could harm children and young people’s chances of obtaining timely justice.

Situations in which children will be particularly vulnerable

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

10. Most separated (or unaccompanied) 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 until 16 years), after which it is generally necessary for the child to make an application to extend their leave to remain.

11. The Bill would only permit Legal Aid if their application to extend their leave is a claim for asylum. This is not always the case. Many such applications are founded upon the child’s private or family life, and made under Article 8 of the European Convention on Human Rights. 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 the country 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.

Refugee family reunion

12. The Bill excludes refugee family reunion cases from Legal Aid. In the Government’s response to its Legal Aid consultation, the Government said that these cases are "generally straightforward" and suggested that where there are concerns about the safety of family members then these may claim asylum in their own right (para. 90). However, not only can a family member not make an asylum claim while he or she is not in the UK, there are also a range of further obstacles:

i. the UK Border Agency (UKBA) routinely requires DNA evidence to establish relationships for which without Legal Aid many will simply not be able to pay;

ii. refugees making these applications are often particularly vulnerable to mental illness because the trauma of that which caused them to flee their home country may be exacerbated by their ongoing family separation;

iii. in some cases, in particular for refugee children, the individual can not make these claims under the ordinary Immigration Rules and procedures.

Living with one’s partner, parents and children is a fundamental human right, not a matter of choice.

Trafficking victims

13. The Bill excludes immigration cases brought by victims of trafficking 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 adults who may face an increased risk of exploitation due to their minority. 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.

14. Trafficking cases often require expert evidence (including medico-legal reports, country expert evidence and evidence on the modus operandi of traffickers) for which, without Legal Aid, they will be unable to pay. Additionally, the Bill may have the effect of increasing the number of cases in which an asylum claim is made.

Welfare benefits, employment, housing and education:

15. Refugee families with children may be disproportionately affected by the proposals to remove these areas from the scope of Legal Aid. While those granted refugee status may be eligible for social welfare, the system in the UK will be unfamiliar to them. Further, they may be especially vulnerable to the risk of exploitation, for example at work and from private landlords. With funding being reduced for English language classes, refugee employment and integration services, the prospects of refugees becoming isolated and marginalised will increase. Refugee children, particularly those in refugee families as opposed to supported by a local authority, risk being unable to secure proper access to education by the exclusion by the Bill of Legal Aid in this area.

Judicial Review

16. 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. The provisions on judicial review raise the risk of certain undesirable and perverse effects. The immigration exclusions apply where there have been previous court or tribunal proceedings (on the same or a similar issue), even when the individual succeeded in those proceedings.

17. Thus, if the UK Border Agency fails to act on the decision of a court or tribunal, or acts in disregard of that decision, the individual will be excluded from Legal Aid in seeking to hold the state to account. These would include litigants in person and cases where family or friends have paid for the lodging of a judicial review application but there are no funds for continued legal representation. The exclusion of Legal Aid may increase the number of judicial reviews brought without any or competent advice and representation, without decreasing the total number brought. In addition, individuals may be discouraged from exercising appeal rights (for which Legal Aid is excluded) to preserve their entitlement to Legal Aid on judicial review.

Recommendations

18. The RCC recommends that the Bill should be amended to properly protect children and young people’s access to civil legal aid. This should include:

· Ensuring 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

· Conducting an Age Impact Assessment alongside the passage of the Bill in order to inform MPs’ final decisions

19. At the heart of the RCC’s concerns is the well-being of some of the most vulnerable children in the UK. Our response to the consultation and submission at second reading 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. We urge Parliament to make these changes to safeguard the rights and welfare of these children.

20. The following documents relating to the Bill further expand on these issues, with case studies:

RCC Response to proposals for the Reform of Legal Aid in England and Wales , February 2011 - www.childrenslegalcentre.com/Resources/CLC/Documents/PDF%20A-M/RCC_legal_aid_consultation_response_2011.pdf

RCC Legal Aid Sentencing and Punishment of Offenders Bill Second Reading Briefing June 2011 - http://www.childrenslegalcentre.com/Resources/CLC/Documents/PDF%20N-Z/RCC%20LASPO%20Bill%20Second%20Reading%20Briefing%20June%202011.pdf

July 2011


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

[2] Parliamentary Question on 21 st June 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110621/debtext/110621-0001.htm

[3] Parliamentary Question on 7 th June 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110607/text/110607w0006.htm#11060826003959

[4] http://media.education.gov.uk/assets/files/pdf/w/written%20ministerial%20statement%20%20%20office%20of%20the%20childrens%20commissioner.pdf

[5] Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice , adopted by the Committee of Ministers on 17 November 2010, at the 1098th meeting of the Ministers' Deputies.

[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] Immigration and Asylum Act 1999, Part V: the Office of the Immigration Services Commissioner.

[11] http://www.youthaccess.org.uk/news/Cuts-leave-young-people-without-vital-support.cfm

[12] 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.

[13] 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.

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

Prepared 20th July 2011