Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Al-Hasaniya (LA 69)

Introduction:

1. We are a charity based in the Borough of Kensington and Chelsea serving the needs of Moroccan and Arabic Speaking women and their families. We have been supporting our clients for over 25 years and have more recently received a Guardian Small Charities Award for our achievements.

2. We provide wide-ranging services to Arabic-speaking residents in the Borough. Among these, our Domestic Violence Project is funded by the local borough and provides individual support for Arabic-speaking women living in the Borough who are suffering or have suffered domestic violence. Generally, our services are particularly directed at vulnerable women and children who have a great deal of difficulty in accessing services and support.

3. This submission is particularly concerned with domestic violence and immigration. However, we first set out some of our general concerns.

General concerns:

4. Like other community-based groups, we are very concerned at the proposals contained in this Bill to remove Legal Aid from a wide range of areas. The areas selected for exclusion from Legal Aid will have an immensely damaging effect not only on our clients but also on our capacity to deliver our services. We are already experiencing a huge impact on our services as a result of the sudden fall in legal services available. If this trend continues and Legal Aid is generally withdrawn, the demands upon our services are likely to increase. We are also concerned at the risk that our clients are exploited by paying for legal services, which they cannot afford and are of little or no value; or in the worst of cases wrong advice that harms our clients. This is not sustainable. We do not have the legal expertise to assist with legal queries, yet without adequate capacity of competent legal advisers in whom we can trust, our staff and volunteers are at risk of being overwhelmed by matters they are not resourced to deal with and with nobody to whom they can refer or signpost.

Domestic Violence:

5. Our Domestic Violence project provides practical and emotional support for women suffering any kind of physical or emotional abuse. We work closely with solicitors and advice agencies to provide a programme of advice, advocacy and referral, which assists the women to access help with legal, housing, family, welfare benefit and immigration issues. Many of the cases we come across are very complex and involve many different areas of law, particularly immigration and housing. We work closely with solicitors and advice agencies in order to be able to help these women make informed choices and secure a decent life for their families. In addition to this we must tread very carefully in terms of the cultural implications of domestic violence. We have had cases where a huge amount of work takes place to secure accommodation for a victim of domestic violence, applications have been made to court for injunctions and due to family pressure the victim will return to her husband. Whilst extremely frustrating and worrying, we can only remain in contact and ensure that the victim knows they have an avenue of support should the need arise again. This problem is not exclusive to the Arabic-speaking community, but is an issue for all victims of abusive relationships.

6. We have noted the statement by Jonathan Djanogly MP, Minister for Legal Aid, made in the Committee’s Session on 19 July 2011:

...The matter of including cases brought under the immigration domestic violence rule in the scope of civil legal aid was raised a great deal during the consultation... 

After further consideration, however, we accept that such cases are unusual. There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status. The type of trauma that they might have suffered will often make it difficult to cope with such applications. We also appreciate that people apply under great pressure of time, and access to a properly designated immigration adviser is a factor. We intend to table a Government amendment to bring such cases into scope at a later stage. 

7. The risk that the Minister identifies is both real and serious. He is also correct that trauma, relevant timescales and immigration advice regulation are all factors that contribute to the need for specialist legal advice and assistance in these cases. Further to this, we wish to draw five matters to the Committee’s attention.

8. Firstly, it is necessary to highlight more clearly the issue of immigration advice regulation. This means that we (and organisations like us) cannot lawfully provide advice about immigration unless we become registered with the Office of the Immigration Services Commissioner (OISC). To be registered we would need to show a general expertise in immigration law. We do not have that expertise, and it is not within the scope of our services to seek to develop or maintain such an expertise. If Legal Aid becomes no longer available for immigration matters, we will not be able to fill the gap. Many of our clients will simply be left without advice or assistance on these matters.

9. Secondly, immigration domestic violence cases do not only arise where the migrant victim’s circumstances fall within the scope of the immigration domestic violence rule. The rule relates to migrants, who have joined their British or settled partners in the UK, while they undergo a ‘probationary’ period before being permitted to apply for indefinite leave to remain. However, other victims of domestic violence have similar difficulties arising from their immigration status, e.g. partners of European citizens in the UK and partners of migrants with limited leave in the UK.

10. Thirdly, immigration domestic violence cases often require legal expertise in several areas, including immigration, housing and family law. The victims in these cases also often require advice and assistance from a lawyer with an understanding and sensitivity to the emotional, social and cultural implications of being such a victim. Our Domestic Violence project has worked with solicitors and other advice agencies to provide the support and assistance that victims need. However, the situation in the Borough has become increasingly difficult now that we are reduced to only one Legal Aid solicitor to whom we can refer cases. While we are very grateful for the support she provides, we are very concerned that with only one option for referral the situation has become extremely precarious.

11. Fourthly, there are often further legal difficulties related to a client’s immigration situation – including family, housing and welfare difficulties. To address these other difficulties, an adviser will often need expertise in both immigration law and in family, housing or welfare law respectively. We fear that the general exclusion of Legal Aid in immigration is likely to make the situation of our clients very much worse, particularly where their legal entitlements in relation to family, housing and welfare are affected or governed by their immigration status. We are alarmed that these concerns will not only affect adults, but also children as we understand the Government to propose that children be excluded from Legal Aid in exactly the same way as adults.

12. Finally, we are concerned about the Government’s proposals for a single and mandatory telephone gateway to access Legal Aid, and for advice to be increasingly delivered by telephone. Talking to people face to face is the most effective method of helping our clients, and of identifying their needs. This helps to create trust, so that our clients can disclose things they might not otherwise disclose, and helps us to see what are the things our clients may not be understanding or reluctant to explain fully. It also allows us to inspect paperwork, which can reveal problems that would not otherwise be apparent. We do not intend to suggest that telephone advice services are unimportant, only that our experience shows that there are many cases where telephone advice is not appropriate (and this may not be clear over the telephone).

13. If the telephone gateway is introduced, we fear this would increase our workload. Our clients would still come to us, for us to make the call on their behalf. Instead of being able to just make the relevant referral they need, to a lawyer whom we know and can have confidence in, we would have to go through a potentially long process of telephone queries before an actual referral is made or accepted; and, if accepted, possibly accepted by a lawyer who has no experience of working with us or our clients. It would be far better, and quicker, if we were able to refer directly to a lawyer we know.

Conclusion:

14. We welcome the Government’s recognition that migrant victims of domestic violence face particular hurdles to escaping their abusive relationships arising from their immigration situation. However, we are concerned that the Government appears to have focused solely on the situation of those victims, whose circumstances fall within the scope of the immigration domestic violence rule (paragraph 289A of the Immigration Rules). For the reasons we have outlined above, a focus on that rule is inadequate. Such a focus would leave many other victims of domestic violence trapped in abusive relationships by reason of their immigration status. It would also, given the wider intentions in the Bill, put at risk the adequacy or availability of legal advice and assistance for those victims whose circumstances do fall within the particular immigration rule.

15. Below are two case studies giving example of the immigration domestic violence cases we deal with.

CASE STUDY ONE –

Mrs D came to see us in 2009 for support. Having entered the UK to join her husband, she was given the two year limited stay as the foreign spouse. Her husband subjected her to verbal, emotional and physical abuse from the moment she entered the UK. He was controlling and cruel. She was eventually thrown out of the matrimonial home rendering her homeless, and penniless. Having used the local park as her home, she was finally brought to our Centre. The most important task for us was to secure a safe home for her as a top priority. Limited leave to remain comes with No Recourse To Public Funds and so it was a mammoth task to find shelter for her and whilst we were trying to do so, she made the decision to return to the violent husband who in turn sent her back to her country of origin, she remained there nearly 12 months, before he agreed to her return. Once back the same pattern of violence and abuse ensued. She left and was able to stay with benefactors who accommodated her for over 12 months, in return for housework and other domestic duties, whilst we worked tirelessly with the Police, her lawyers and medical team to prove the utter demented behaviour her husband subjected her to. She was eventually granted indefinite leave to remain.

Mrs D’s immigration, housing and family solicitors were fundamental in the outcome of her case. Through our input and support they were all able to work together in-order to provide the best possible support to her. The process of compiling evidence, making the right applications to the Home Office as well as the possibility of going through an appeal process is not one that our centre has the capacity to do nor do we hold the specialist expertise to provide such a service. Mrs D was not in a position to pay for legal advice as a result of her circumstances and had she not received this vital support through legal aid, we would hate to imagine where she would be today. Support both emotional and on a practical level continue in the hope that Mrs D will overcome the traumas she suffered and begin a new life.

CASESTUDY TWO -

Ms E was referred to us by her GP who wanted to refer her to counselling. Ms E had been in the UK for approx 8 months and had a 2-year spouse visa making her totally dependent on her husband. She had been repeatedly raped by her husband and due to cultural and religious barriers believed that to report him she would be going against her religion and culture. Family pressures also stopped her from doing so. She needed to discuss her issues with a religiously sensitive counsellor who would understand her anxieties.

 

Ms E equally had practical issues that she needed support with, she wanted to leave her husband, however because of her immigration status, unless she was able to report her husband to the police and gather strong enough evidence for her to leave the matrimonial home, she would not be able to apply for stay in the UK under the domestic violence rules. She would also not qualify for any public funds or social housing, and because of language barriers as well as the emotional turmoil she was going through, she was not in a position to work and support herself. She was therefore in a very vulnerable position. Ms E felt she could not return to her homeland, as she would have shamed her family and stated they would not want her back as a divorced woman. The pressure from her family was a main factor as to why she could not report the matter to the police.

Through our contacts and long-term working partnerships with solicitors we were able to find a solicitor who was able to work with Mrs E through the assistance of legal aid. However more and more often we are noticing a significant reduction in solicitors who are able to provide advice through legal aid.

It proved to be very difficult to secure a refuge space for Ms E, however having obtained advice from a housing solicitor she felt she could remain in the matrimonial home with her husband until we were able to identify alternative accommodation. Throughout this time we maintained communication with her solicitor and were able to work together in-order to identify alternative living arrangements for our client.

Ms E also sought advice from an immigration solicitor as well as a family solicitor who was able to provide advice on the application process for an injunction and exploring the options of divorce or legal separation.

Ms E’s position was very unstable; she was very unsure about her situation and very scared about doing anything to help herself out of it. Had it not been for the input of solicitors through the vital assistance of Legal Aid, Ms E would not be aware of the process of action available to her and as such would have remained within her abusive relationship and no doubt would have deteriorated. Helping her understand what support was available to her provided her with the knowledge and confidence to help herself.

Ms E continues to receive one to one support from both the domestic violence and mental health projects as well as attend workshops and centre activities.

September 2011