Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Bail for Immigration Detainees (BID) (LA 73)

1. BID is an independent charity that exists to challenge immigration detention in the UK. We work with asylum seekers and migrants held in removal centres and prisons to secure their release from detention. From August 2010 to July 2011 BID provided legal advice, information and representation to 2115 immigration detainees.

Summary

2. BID is gravely concerned that the removal of all immigration claims from scope for Legal Aid funding will mean that in practice large numbers of immigration detainees will no longer have any meaningful opportunity to challenge the UK Border Agency’s (UKBA’s) decision to hold them in immigration detention.

3. The complexity of immigration law and the circumstances of immigration detainees mean that it will not be possible in the vast majority of cases for detainees to properly prepare and present their own immigration cases.

4. BID has worked with numerous clients who have been held in immigration detention for long periods, and who the courts have ultimately found to have been detained unlawfully. In a number of cases, our clients’ legal aid representatives have successfully challenged the immigration decision which was the basis of their detention.

5. We are particularly concerned by the impact which the removal of Legal Aid for immigration claims would have on children who are facing removal from the UK with their families or separation from their parents. We are also concerned that the removal of Legal Aid funding for certain immigration and asylum judicial reviews will prevent detainees from challenging unlawful decisions to remove them from the UK.

6. Finally, there are a number of areas where the removal of immigration cases from the scope of Legal Aid funding may result in unintended and problematic consequences for the asylum and immigration system.

Introduction

7. BID welcomes the Government’s recognition, in their response to the Legal Aid consultation, that cases concerning an individual’s loss of liberty are of a high priority and that Legal Aid should continue to be routinely available in such cases subject to means and merits tests. [1] The Government also deems to be of high priority cases involving a risk to life or physical safety; homelessness; and cases where the individual faces intervention from the state, or seeks to hold the state to account.

8. Other factors which the Government identifies as relevant to what should remain in scope for Legal Aid are:

· the individual’s ability to present their own case;

· the availability of alternative sources of funding;

· and the availability of alternative means of resolution. [2]

9. As a result of the prioritisation of cases concerning loss of liberty, the Government proposes that people in immigration detention will continue to be able to access Legal Aid to apply for bail. This is a welcome proposal from BID’s point of view, particularly given the fact that there is no statutory time limit on immigration detention in the UK.

10. However, we are extremely concerned that the removal of all immigration claims from scope for Legal Aid funding will mean that in practice large numbers of immigration detainees will no longer have any meaningful opportunity to challenge the UKBA’s decision to hold them in immigration detention.

11. The UKBA’s decision to detain a person under Immigration Act powers is a direct consequence of an immigration decision. For example, where the UKBA has made a decision to refuse an applicant leave to remain in the UK, they may then detain them in order to effect their forced removal. This means that in immigration cases, and particularly in removal and deportation cases, the individual’s liberty is immediately at stake. Challenging immigration detention is inextricably linked to challenging the immigration decision which is the justification for detention. If all immigration claims are removed from scope for Legal Aid funding, detainees who are not asylum applicants will, in most cases, have no means of properly putting forward their immigration case and challenging their detention.

Alternatives to Legal Aid funding

12. The complexity of immigration law and the circumstances of immigration detainees mean that it will not be possible in the vast majority of cases for detainees to properly prepare and present their own immigration cases. Detainees are, by virtue of their situation, isolated and ill-placed to gather evidence, including witness and expert evidence, to support their cases. Their knowledge of English may be very limited. In some cases they will suffer from mental illnesses. It is unrealistic to imagine that detainees will have the knowledge of court procedures and case law, and the ability to advance complex legal arguments in an adversarial procedure, which would be necessary for them to properly prepare and present their cases.

13. We also note that the Government is generally represented in cases or proceedings taken against it, and suggest that an expansion of types of case or proceeding where individuals are held to be generally able to represent themselves goes against the principle of equality of arms.

14. The Office of the Immigration Services Commissioner, and the Law Society’s Immigration Accreditation Scheme, are both intended to regulate standards of immigration advice. Both schemes take into account the complexities of different areas of Immigration Law by restricting advisors from being able to advise unless they have passed exams that reflect knowledge in those areas of the Law. It is illogical therefore to suggest that litigants who have no knowledge or experience in these levels of legal competency should be able to represent themselves both prior to, and before a Tribunal.

15. Detainees are unable to earn money to pay for legal costs. As immigration advice and representation are regulated, advice cannot be provided by charities who do not meet the requirements of such regulation.

16. In immigration cases, there are no alternative means of resolution. Immigration matters cannot be resolved by mediation, ombudsmen, complaint procedures or other dispute resolution methods.

Background on immigration detention

17. It is not uncommon for people to be held in immigration detention for long periods. Home Office statistics show that of the 25,959 people who left immigration detention during 2010, 8327 were detained for more than 29 days. Of these, 316 people were detained for over a year. [3] BID has clients who have been detained for over four years.

18. BID has worked with a number of clients who have ultimately been granted leave to remain in the UK despite the UKBA having previously detained them and attempted to forcibly remove them from the UK. We have also referred a sizeable number of clients to legal representatives who have made successful claims against the UKBA for unlawful detention. The Independent newspaper recently reported that the UKBA had informed them the agency had set aside over £4 million to pay compensation on pending unlawful detention claims. [4] In one recent case, the High Court ruled that the UKBA subjected a man suffering from mental illness to inhuman and degrading treatment in immigration detention, detaining him unlawfully for a period of five months. [5]

19. In this context, BID considers it to be of crucial importance that detainees have a meaningful opportunity to challenge the lawfulness of the UKBA’s decision to detain them. In our view this would require that immigration cases which pass the merits test remain in scope for Legal Aid funding.

Challenges to deportation

20. The current Bill removes challenges to deportation from scope for Legal Aid funding.

21. BID has had a number of clients in detention with signed deportation orders in place following criminal convictions, who have been resident in the UK for twenty, thirty and even fifty years, and yet face deportation to a country of origin of which they have limited or no knowledge. They may have come to the UK as young children themselves. Many of these clients have UK citizen partners, children, and grandchildren from whom they face separation if they are removed from the UK.

22. Deportation action is appealable. However, if deport appeals are removed from the scope of Legal Aid funding, detainees facing deportation who are without private means would have no meaningful opportunity to examine their immigration position and challenge their removal from the UK where appropriate.

23. The majority of BID’s clients who are detained long-term are subject to deportation orders. If these clients are unable to challenge their deportation order, they will not be able to meaningfully challenge the basis of their detention. There is clear potential for situations to arise where a person is detained despite their detention being unnecessary and unlawful in the light of their underlying deport case, because without Legal Aid they have been unable to adequately present or evidence that case.

24. BID has worked with a number of clients who have successfully appealed their deport orders. Without the availability of Legal Aid to make such challenges, these clients could well have been forcibly removed from the UK without having an opportunity to challenge the lawfulness of their deport order.

25. For example, one of BID’s clients successfully appealed her deport order after being detained for six months. She arrived in the UK in 1999 with valid entry clearance, and her daughter was born in the same year. She over stayed her visa but tried to regulate her stay by applying for a student visa. She and her daughter were eventually granted 4 years discretionary leave. In 2009 she received a prison sentence, having used a false passport to secure a place on a nursing degree. At the end of her six months in criminal custody, she was detained under Immigration Act powers and separated from her child by detention for six months during 2009-10. She was served with a decision to deport towards the end of her time in immigration detention, which her Legal Aid representative successfully challenged shortly after her release from detention. She was granted leave to remain in the UK. If she had not been able to access Legal Aid to challenge her removal from the UK, this would have been seriously detrimental to the welfare and best interests of her child, who was born in the UK and had been living here for over ten years.

Children

26. The proposal to remove immigration cases from scope for Legal Aid would particularly affect:

· Children who are facing removal from the UK with their families

· Children who are separated from a parent by immigration detention, or by that parent’s removal from the UK.

27. The ill-health experienced by children in immigration detention is well-documented. Medical studies have found that detention is associated with post-traumatic stress disorder, major depression, suicidal ideation, self-harm and developmental delay in children. [6] The Government’s recent change in policy, which has limited the time children can spend in immigration detention to seven days, is a considerable improvement on the previous situation where children were detained for periods of months. However, children can experience extreme distress even during short periods in detention. For example, in 2009 a 10-year-old girl attempted suicide in a UK Immigration Removal Centre after being held there for three days. [7]

28. We are therefore extremely concerned about the impact which removing all immigration cases from scope for Legal Aid funding will have on families with children, who may be detained and forcibly removed from the UK without having had the opportunity to properly examine and present their immigration cases. BID and The Children’s Society carried out detailed research into the cases of 82 families who were detained during 2009. [8] We found that 48% of the 143 children in the study were born in the UK. 19 families, 23% of our research sample, had been in the UK for over seven years at the time when they were detained. Four of the mothers in the research had become pregnant by or had children with men who lived in the UK. These children would have been separated from their fathers if they were removed from the UK. Such cases raise serious issues in terms of Article 8 of the European Convention on Human Rights (the right to family and private life), international and domestic obligations concerning the best interests of the child [9] and the safety and welfare of children. [10]

29. We are also concerned about the impact which the proposals in the Bill would have on children who are separated from a parent by immigration detention, or by that parent’s removal from the UK. From September 2008 to June 2011, BID’s family team worked with 64 families where children who were not detained had been separated from their parent (in many cases their primary carer) who was in detention. The majority of these parents had committed criminal offences, and were being held in immigration detention following the completion of their criminal sentences, while the UKBA sought to remove them from the UK. During this time, 42 of these parents were released from immigration detention, 31 of them on bail. Only two clients were removed from the UK or returned voluntarily to their country of origin at the end of their detention. On release or return, the average length of detention for these parents was 269 days. Clearly, separating children from their parents for such long periods is likely to be very damaging both to the child and to their relationship with their parent. In some cases, child protection concerns have been raised about the care arrangements which these children are in while their parents are detained.

30. The UKBA also has the ability to separate families by forcibly removing parents and leaving children in the UK, including where these children will be in Local Authority care following their parent’s removal. BID knows of cases where there are no known child protection concerns about a detained parent, and yet the UKBA caseowner has sought authority to split a family for removal. In such cases, it appears that this step is being taken despite the profoundly negative impact it could have on child welfare, because it serves the administrative convenience of the UKBA.

31. A recent case which has revealed particularly poor practice in this area is that of Marlyse Malla, currently being considered by the ECtHR, in which a Cameroonian woman was forcibly removed from the UK without her one year old baby. [11] She was detained with her baby, but was separated from her child when she fell ill during her detention and was hospitalised. She was then forcibly removed from the UK without her child, who appears to be in the care of the father. The statement of facts on this case published by the court states that Ms. Malla ‘complains that her daughter was taken away from her without her consent, that her rights to motherhood have been violated and that she has no possibility of future contact with or news of her daughter because her father is a national of the Democratic Republic of Congo whose whereabouts are currently unknown.’ Ms. Malla is currently pursuing this case from the Cameroon.

32. We are concerned that, without the ability to access Legal Aid to properly examine, prepare and present their immigration cases, parents and children who the UKBA seeks to separate by immigration detention and removal will not have a meaningful opportunity to challenge the UKBA’s decisions.

33. We also note that in two cases concerning the separation of families the Supreme Court and its predecessor have highlighted that there will be cases where the child needs to be represented separately. [12]  In its response to the consultation on Legal Aid reform, the Government revised its proposals in relation to family law in recognition of the fact that ‘children are not able to represent themselves’. [13] It is also the case that children are not able to represent themselves in immigration proceedings; Legal Aid should therefore be provided to them.

34. Furthermore, we are interested to note that the Government’s response to the Legal Aid consultation states that:

35. ‘Legal Aid would 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.’ [14] (emphasis added)

36. However, the Government does not appear to have taken into account here the clear risk that children will be placed in care as a result of being separated from their parent by immigration detention or the parent’s removal, particularly given the removal of immigration cases from scope for legal aid funding.

Judicial Review

37. In its response to the Legal Aid consultation, the Government set out its intention to remove Legal Aid for judicial reviews in certain immigration and asylum cases. [15]

38. These types of judicial reviews are directly concerned with the loss of an individual’s liberty, interventions they face at the hands of the state, and holding the state to account – all matters which the Government has identified as being of a high priority.

39. BID has worked with a number of clients who have been held in immigration detention, and whom the UKBA has sought to forcibly remove from the UK, but who have been granted leave to remain after challenging their removal by bringing judicial review proceedings. In the research which BID and The Children’s Society carried out with families detained in 2009, we collected post-detention data on 30 families. In the cases of three families who lodged judicial reviews in detention, it was subsequently found that errors had been made in the way their cases were considered, so they needed to be looked at again in full. [16]

40. In its response to the Legal Aid consultation, the Government states that it is removing Legal Aid for judicial reviews in particular immigration and asylum cases in response to recommendations from the Judge’s Council. [17] However, the stated aim of the Judge’s Council’s proposals was to exclude only unmeritorious cases from Legal Aid funding. But the Government now proposes to remove Legal Aid for all immigration judicial reviews except cases where the UKBA has not acted within a year of a final decision of a court or tribunal, regardless of the merit of the case. We are gravely concerned that this may lead to people being unlawfully detained and removed from the UK, as they will not be able to access Legal Aid to challenge the UKBA’s decisions.

Perverse Consequences

41. Finally, we note that there are a number of areas where there is a risk that the removal of immigration cases from the scope of Legal Aid funding will result in unintended and problematic consequences for the asylum and immigration system.

· There may be an increase in the numbers of individuals applying for asylum because they cannot get legal aid for immigration applications and deport appeals.

· There is a risk that the numbers of judicial review applications will increase because claimants are not able to pursue their immigration cases in the tribunal due to the lack of Legal Aid funding. Judicial review proceedings will generally be more costly and time-consuming than tribunal proceedings.

· There may be an increase in immigration detainees seeking alternative forms of advice and help, and in particular approaching MPs to make representations on their behalf.

· Detainees may be able to obtain Legal Aid to apply for bail, but will not be able to obtain Legal Aid to resolve their underlying immigration matter if they are released from detention. This could result in people being repeatedly detained, without ever being able to resolve their underlying immigration issue.

· People may be held in immigration detention unlawfully in cases where errors have been made in the UKBA’s handling of their immigration case, but will not be able to access Legal Aid to challenge the UKBA’s immigration decisions and secure their release from detention.

· While it is proposed that asylum matters and detention-related matters will remain in scope, in practice most legal aid firms balance immigration and asylum work - particularly as asylum work is costly, and takes a long time to be paid. So the proposed removal of general immigration work from scope is likely to make a number of these businesses unviable.

September 2011


[1] Proposals for the Reform of Legal Aid in England and Wales : Consultation Response Ministry of Justice, June 2011, p4

[2] Proposals for the Reform of Legal Aid in England and Wales : Consultation Response Ministry of Justice, June 2011, paragraph 6, p11

[3] Home Office Immigration Statistics April-June 2011

[4] The Independent 15/8/11 ‘£12m paid in asylum seeker claims’ by Wesley Johnson http://www.independent.co.uk/news/uk/home-news/12m-paid-in-asylum-seeker-claims-2338008.html

[5] S v SSHD [2011] EWHC 2120 (Admin)

[6] Lorek, A., Ehnholt, K., Nesbitt, A., Wey, E., Githinji, G., Rossor, E. and Wickramasinghe, R. (2009) ‘The mental and physical health difficulties of children held within a British immigration detention centre: A pilot study’ Child Abuse and Neglect 33:9 pp 573-585; Mares, S. and Jureidini, J. ( 2004 ) ‘Psychiatric assessment of children and families in immigration detention – clinical, administrative and ethical issues’ Australian and New Zealand Journal of Public Health 28:6 pp520-526; Steel, Z., Momartin, S., Bateman, C., Hafshejani, A., Silove, D.M., Everson, N., Roy, K., Dudley, M . , Newman, L., Blick, B. and Mares, S. ( 2004 ) ‘Psychiatric status of asylum seeker families held for a protracted period in a remote detention centre in Australia’ Australian and New Zealand Journal of Public Health 28 pp23-32.

[7] Guardian 21/10/09 ‘Detained Nigerian girl found trying to strangle herself’ Diane Taylor http://www.guardian.co.uk/uk/2009/oct/21/detained-nigerian-girl-strangle-immigration

[8] Bail for Immigration Detainees and The Children’s Society 2011 Last resort or first resort? Immigration detention of children in the UK

[9] Article 3.1, 1989 UN Convention on the Rights of the Child.

[10] Section 55, Borders, Citizenship and Immigration Act 2009.

[11] ECtHR 15/9/10 Chamber Fourth Section Application No. 19159/08

[12] EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64; ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.

[13] Proposals for the Reform of Legal Aid in England and Wales : Consultation Response Mi nistry of Justice, June 2011, paragraph 50, page 21; Bill Schedule 1, Part 1, paragraph 13.

[14] Proposals for the Reform of Legal Aid in England and Wales : Consultation Response Ministry of Justice, June 2011, p4

[15] Proposals for the Reform of Legal Aid in England and Wales : Consultation Response Ministry of Justice, June 2011, paragraph 16, p13

[16] Bail for Immigration Detainees and The Children’s Society 2011 Last resort or first resort? Immigration detention of children in the UK

[17] Proposals for the Reform of Legal Aid in England and Wales : Consultation Response Ministry of Justice, June 2011, paragraph 13, p13

Prepared 7th September 2011