Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by René Cassin (LA 53)

Submission to Public Bill Committee

1. René Cassin is a human rights Non-Governmental Organisation (NGO) that uses the experience of the Jewish people, and positive Jewish values, to campaign and educate on universal human rights issues such as discrimination, asylum seekers and refugees, and genocide.

2. This submission covers general issues with the reform of the legal aid system, and in particular, issues relating to asylum and immigration.

General issues

3. The Legal Aid, Sentencing and Punishment of Offenders Bill offers a drastic overhaul of the UK legal aid system, including heavy cuts and substantial restrictions on areas which come into scope for funding.

4. As an organisation which campaigns on universal human rights issues, we would like to highlight a few general concerns about the changes in the provision of legal aid in this Bill. For example, there have been concerns voiced over the potential conflict of interest in replacing the Legal Services Commission with an in-house service by the Ministry of Justice. [1] It has been suggested that control over legal aid services should be exercised by an outside agency. We would like to see that mechanisms will be put in place to ensure that independence and impartiality is exercised in the system.

5. There are also general concerns that funding cuts will affect those who are most vulnerable. Some lawyers and firms who currently offer legal aid services to the most vulnerable people in society will struggle to survive the cuts; indeed, the Immigration Advisory Service went into administration on the 8th July, and issued a statement on its website suggesting that the cuts to legal aid provision played a part in their demise. [2] We are concerned that the proposed reforms will result in legal aid services suffering in terms of accessibility and quality. This in turn will have the greatest impact upon those who are most in need of legal assistance.

6. For example, after the legal aid provider Refugee and Migrant Justice (RMJ) went into administration last July, a client took his own life. [3] He had been living in the UK for nine years with uncertainty surrounding his immigration status, in a state of destitution as he was not allowed to work. [4] Following the closure of RMJ, he found that he could not access information about his case. [5] In despair, he took his own life shortly afterwards. [6] Cases such as this demonstrate the importance of providing accessible legal aid where vulnerable individuals are concerned.

7. We would also like to reinforce the voices of other organisations who contend that public spending on legal aid provides future savings, including comment by the Bar Council and the evidence provided in July 2010 by the Citizens’ Advice Bureau, "Towards a business case for legal aid". [7] It has been noted that defendants who represent themselves will most likely delay courts and are less likely to obtain optimum legal outcomes.

Immigration law

8. As an organisation which campaigns to protect the rights of those in the asylum and immigration system, René Cassin welcomes the government’s retention of legal aid provision for asylum claims and immigration detention appeals. However, we would like to emphasise the importance of legal aid for immigration cases themselves, which are excluded under the new legislation in Schedule 1 of the Bill. [8] This means that cases involving family reunion, deportation/removal and refusal for leave will be excluded. [9]

Why is it important that legal aid is available for immigration cases?

9. During the first reading of the Bill, the Lord Chancellor stated, "...we will retain legal aid in cases where people’s life or liberty is at stake..." [10] Yet, people’s liberty is at stake when all immigration decisions are taken. [11] Additionally, the lawfulness of a person’s detention is necessarily connected to the case deciding their immigration status. [12]

10. Moreover, under the new legislation, victims of domestic abuse would also be deprived of legal aid for their immigration case. [13] Currently, the Immigration Rules allow victims of domestic violence to apply for Indefinite Leave to Remain. [14] René Cassin supports the government in preserving legal aid for domestic violence cases.

11. However, victims of abuse who cannot afford their own legal advice will no longer be able to get specialist help integral to the preparation of their immigration case. Victims may be anxious as to the repercussions of turning to the authorities for help, fearing potential detention, deportation, and separation from their family.

12. We are concerned that this may lead to victims who cannot afford legal advice and have an uncertain immigration status remaining trapped in abusive relationships. Considering the commitment of the Home Office to end violence against women and girls, outlined in the paper "Call to End Violence Against Women and Girls" (2010), we strongly believe that the government should consider retaining legal aid for victims of domestic violence applying under Part 8 of the Immigration Rules. [15]

13. Furthermore, immigration decisions are often made swiftly; appeals need to be made within 10 days, or 5 days if in detention. [16] The decision will be made entirely upon the evidence presented before the tribunal, and so the defendant must prepare and gather the necessary evidence to best present their case. [17] The evidence may be vast in amount and expensive to gather. [18]

14. It is incredibly hard for vulnerable individuals to prepare witness statements and expert reports without legal help, especially in the short space of time provided under the existing framework. [19] Immigration law is a highly complex area. [20] As Court of Appeal Judge Lord Justice Longmore recently stated, it cannot be expected that a defendant could keep up with the complex law without specialist legal advice. [21]

15. A High Court judgment, R (Evans) v Lord Chancellor and Secretary of State for Justice [2011] EWHC 1146 (Admin), was highly critical of the government’s decisions in 2010 to deny legal aid in public interest cases where there were potential human rights violations. [22] We hope that the government will more fully take on board some of the concerns raised about cuts to legal aid in amending the new Bill.

July 2011


[1] http://obiterj.blogspot.com/2011/06/legal-aid-sentencing-and-punishment-of.html

[2] http://www.iasuk.org/home.aspx

[3] http://www.guardian.co.uk/world/2010/au g /01/asylum-seeker-osman-rasul-death-legal-aid

[4] Id.

[5] Id.

[6] Id.

[7] http://www.barcouncil.org.uk/news/latest/710.html , http://www.citizensadvice.org.uk/towards_a_business_case_for_legal_aid.htm

[8] http://www.publications.parliament.uk/pa/bills/cbill/2010-2012/0205/cbill_2010-20120205_en_1.htm

[9] Young Legal Aid Lawyers’ briefing for House of Commons second reading of Legal Aid, Sentencing and Punishment of Offenders Bill 29 June 2011

[10] Hansard HC, 21 Jun 2011: Column 166

[11] ILPA BRIEFING Legal Aid, Sentencing and Punishment of Offenders Bill, June 2010: Matters of relevance to Immigration Detention

[12] Id

[13] Id

[14] http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/

[15] http://www.homeoffice.gov.uk/publications/crime/call-end-violence-women-girls/

[16] ILPA BRIEFING Legal Aid, Sentencing and Punishment of Offenders Bill, June 2010: Matters of relevance to Immigration Detention

[17] Id

[18] Id

[19] Id

[20] Id

[21] AA ( Nigeria ) v SSHD [2010] EWCA Civ 773

[22] http://www.lag.org.uk/Templates/Internal.asp?NodeID=93727

Prepared 7th September 2011