Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Amnesty International UK (LA 66)

Introduction:

1. Amnesty International UK aims to bring about a fair and effective asylum system. We conduct research into aspects of asylum policy and practice, develop proposals for improving policy and practice and promote our proposals with Government, Members of Parliament and others. We are a founder of the Still Human Still Here campaign concerned with destitution amongst asylum-seekers, are represented on the National Asylum Stakeholder Forum and recently published our report into the use of restraint techniques in the removals process [1] . Asylum is only one of several areas in which we are active. Our activity in this area, as in all areas, is underpinned by our general purpose to protect people wherever justice, fairness, freedom and truth are denied.

2. This Memorandum sets out four key areas of concern relating to the immigration and asylum Legal Aid provisions of the Legal Aid, Sentencing and Punishment of Offenders Bill. These are addressed under the following headings:

a. Detention and Removal

b. Article 8

c. Legal Advice and Representation

d. UK Border Agency Asylum Responsibilities

Fundamental human rights are at stake in many immigration and asylum cases, including the recognition of refugee status, the right to life, the right to be free from torture, inhuman and degrading treatment or punishment, the right to liberty and the right to be free from unnecessary, unlawful or disproportionate interference with private and family life. Access to competent legal representation, and thereby effective access to the courts, is of critical importance in securing these fundamental rights.

3. First, we recall the stated rationale behind the measures in this Bill. In November 2010, the Government stated it "strongly believes that access to justice is a hallmark of a civil society" [2] . In June 2011, the Secretary of State for Justice reiterated a general intention that Legal Aid should "continue to be routinely available in cases where people’s life or liberty is at stake, where they are at risk of serious physical harm, or immediate loss of their home, or where their children may be taken into care" [3] The Government set out four factors as the foundation for the proposals it had decided to pursue [4] :

a. The importance of the issue – especial priority to be given to matters of life, liberty, physical safety, homelessness, intervention by the State and holding it to account;

b. The ability of a litigant to act without representation, with regard to characteristics of the litigant (e.g. age, disability or trauma);

c. The availability of alternative sources of funding for legal representation (e.g. conditional fee agreements, legal insurance and trade union support); and

d. The availability of alternative routes to resolve disputes (e.g. ombuds and complaints procedures).

Detention and Removal:

4. Immigration detention and removal inevitably concerns liberty. It constitutes an especially intrusive intervention by the State, sometimes acting by private contractors. It includes the removal of persons and families to countries where there are widespread human rights abuses and insecurity; and can include the separation, potentially permanently, of adults and/or children from their families, their home, their community, their language and indeed the country of their birth and/or citizenship. Also, as in the tragic case of Jimmy Mubenga [5] , it has on occasion led to someone’s death while in the care of the State.

5. The Bill fails to accord these matters their manifest high importance. Further, in one critical respect it accords less protection in the area of detention and removal than it generally provides. In judicial review cases, the Bill provides Legal Aid exclusions that only apply in the immigration and asylum area [6] and specifically apply in removal cases [7] . This is done despite the fact the cases in which Legal Aid would be excluded are generally cases where Legal Aid would also have been excluded in any previous proceedings [8] – contrary to the express intent of the senior judiciary [9] . It is done despite the Government’s acknowledgement that cases of concern to the senior judiciary are largely not cases brought on Legal Aid in any event [10] . Moreover, it is done in cases that would have especially perverse results including reducing or removing effective scrutiny of the State when it ignores, avoids or misapplies the rulings of the Court. This arises because the exclusions are triggered by previous proceedings regardless of the individual having been successful in those previous proceedings or the State having avoided a ruling by withdrawing its decision in those previous proceedings.

6. The Bill specifically provides for Legal Aid to challenge immigration detention [11] . However, the Government’s stated intention is to distinguish between detention and the underlying immigration issue [12] . The distinction is neither rational nor practicable. If liberty is properly accorded especial importance, detention must be restricted to when strictly necessary and lawful. The lawfulness of detention depends directly upon the underlying immigration issue (e.g. someone may lawfully be removed because he or she is not entitled to remain; if so, detention may be lawful if necessary to effect the removal). In order to challenge detention, a competent legal representative will need to investigate and address the underlying immigration issue (e.g. is the removal lawful?) that is the reason for the detention. [13]

7. The Bill risks creating a harmful and costly cycle of detention. Someone, unable to afford legal representation, may face detention because his or her underlying immigration case is not properly identified or presented. Legal Aid is available to challenge detention, and initial investigation may show merit in the underlying immigration case; thereby release is secured. Now, Legal Aid is again not available. Unable to properly present the immigration matter, the person again faces detention.

8. Considering the Government’s four factors: (i) detention and removal necessarily concerns liberty, intervention by the State and holding the State to account (and in individual cases further fundamental matters); (ii) detainees are especially disadvantaged in pursuing their claims without representation by reason of their detention; (iii) there are no alternative sources of funding for those who cannot afford legal representation; and (iv) there is no alternative dispute resolution process.

Article 8:

9. We are particularly concerned about Article 8 immigration cases where the State proposes to remove someone from the UK. Many cases involve adults and children, born in the UK and/or British citizens, who have lived many years in the UK, facing separation (possibly permanently) from family, home and community in the UK, and have little or no connection (including family or language) with the country to which they face removal. Cases involve complex legal questions such as whether the State’s decision accords with relevant policies [14] , whether the State’s aim in pursuing removal is proportionate to the resulting interference with private and family life [15] . Cases often require detailed gathering and presentation of complex evidence (including witness statements and social work, medical and other expert reports).

10. These cases also highlight a wider flaw in the Bill, which would exclude Legal Aid for onward appeals where Legal Aid was excluded for the original decision or first instance appeal. Onward appeals are generally only available on error of law grounds with permission of a judge [16] . They necessarily proceed only when a judge rules a question of law is raised that has merit. In immigration cases, the State is the other party. As the individual appellant, the State is equally entitled to seek permission for onward appeal if it is unsuccessful at first instance. The State may be represented by teams of lawyers. There are many examples of the individual succeeding at first instance only for the State to appeal [17] . Of course, there are equally examples where the individual has not succeeded at first instance and seeks to appeal. Currently (subject to the Legal Aid merits test, or the ability of the individual to pay privately), both the individual and the State have an equal opportunity, with permission of a judge, to challenge the understanding and application of law by the first instance judge. The Bill would remove that equality for individuals who cannot afford legal representation. The State may continue to seek to overturn an individual’s success at first instance through successive stages – appeal to the Upper Tribunal, appeal to the Court of Appeal and appeal to the Supreme Court – despite the individual having no representation throughout.

11. Considering the Government’s four factors: (i) Article 8 cases include especially intrusive interventions by the State; (ii) these cases involve complex matters of law and often require detailed and complex evidence gathering, and are therefore not appropriately amenable to self-representation; (iii) there are no alternative sources of funding for those who cannot afford legal representation; and (iv) there is no alternative dispute resolution process.

Legal Advice and Representation:

12. The Legal Services Commission has indicated that immigration and asylum legal services are threatened by the Government’s proposals and this Bill [18] . There are several reasons to consider that threat to be acute.

13. Last year, Refugee and Migrant Justice (formerly the Refugee Legal Centre) with years of experience representing asylum-seekers, entered administration and closed. At the time, the Government confidently asserted "every other organisation, including not-for-profit organisations has coped [with the fixed fees Legal Aid regime]" [19] ; and announced the Immigration Advisory Service (the other large not-for-profit in the area) would be receiving "a much bigger market share – over 20%" (cf. the "7% market" of Refugee and Migrant Justice) [20] . That confidence was misplaced. The Immigration Advisory Service has just closed its doors and entered administration [21] . It was not coping. Others have not coped. For example, Fisher Meredith solicitors ceased their immigration and asylum Legal Aid work this year.

14. Last year’s events led to areas with no immigration and asylum Legal Aid provision [22] . This year’s events carry the same risks. However, effective advice deserts are a longstanding problem, because in many areas the Legal Aid capacity has been inadequate to meet demand and in some cases, while individuals have secured Legal Aid, the quality of representation has been inadequate. Work with our partners in the Still Human Still Here campaign over several years has frequently highlighted that many asylum-seekers become destitute having passed through the asylum system unsuccessfully, despite having good asylum claims. A significant cause has been poor legal advice and representation [23] .

15. The Bill, and the intended 10% reduction in all Legal Aid fees, will exacerbate these problems. In October 2007, the previous Government introduced the current fixed fee regime. Essentially, a Legal Aid representative receives the same fee for all asylum cases (similarly there is a fixed fee in immigration cases). It does not matter that one case requires more work than another [24] . This was said to be sustainable because quicker, more straightforward cases would mitigate the cost to the representative of doing more time-consuming and complex cases [25] . As others warned, this provides incentive to those who would cherry-pick and spend inadequate time on cases [26] . In November 2010, Legal Aid contracts required a mix of immigration and asylum work. The Bill would render this required structure inappropriate. Further, removing immigration from Legal Aid scope will undermine the very basis on which fixed fees are supposed to be sustainable. It will remove opportunities to offset the cost to representatives of complex and time-consuming asylum claims. The 10% fees’ reduction will accentuate this problem.

UK Border Agency Asylum Responsibilities:

16. Members of the Committee have identified that the Bill’s measures on Legal Aid scope may lead to claims being re-categorised so as to fall within scope, e.g. Kate Green MP said [27] :

"The classic area is the boundary between immigration and asylum, and we can expect some cases currently covered by legal aid as asylum cases to be transferred to asylum."

17. Some cases may be presented as either immigration or asylum claims [28] , e.g. someone may have a claim under the immigration domestic violence rule [29] and be at risk from her partner (or his or her family) in her home country. In other cases an individual has distinct potential claims relating to immigration and asylum respectively, e.g. someone may qualify for leave to remain under the long residence rule [30] and be at risk of persecution in his home country. An individual may choose not to make an asylum claim because he or she prefers to avoid the asylum system (and prospects of detention, delays on limited support without permission to work, and re-telling traumatic experiences). In some cases Article 8 and Article 3 overlap [31] . Some Article 8 cases concern both family life in the UK and circumstances in the country to which return is proposed. The risk highlighted by Kate Green is not limited to these cases.

18. The Minister for Immigration, Damian Green MP, aspires to "an asylum system which is more compassionate and produces the right decision, at the first time of asking" [32] . The Bill undermines this aspiration. It risks increasing asylum claims, putting more pressure on asylum decision-making resources and the quality of decision-making. It risks increasing the problems of inadequate and inaccessible legal representation for asylum-seekers, thereby increasing the prospect that asylum claims are not fully identified and presented at the earliest opportunity. That many and more asylum-seekers will pass through the asylum process without their claims being properly identified, presented and considered, will do nothing to improve confidence in the asylum system. It will perpetuate problems of the past, including the problem of destitution.

September 2011