Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Zimbabwe Association (LA 75)

Introduction

1. The Zimbabwe Association (ZA) is a charity and membership organisation which supports Zimbabwean asylum seekers and refugees in the UK. We work to ensure they have access to fair legal representation and accurate information throughout the asylum process. Our aims include utilising and developing members’ skills, accessing education and enabling Zimbabweans to be heard.

2. ZA was formed by volunteers in October 2001. ZA began campaigning against the detention and removal of Zimbabweans; removals were suspended in January 2002. However, since this time, many Zimbabweans have faced serious difficulties in finding competent legal representation and many have found themselves in situations of limbo (without status) and destitution in the UK, despite it being unsafe for them to return to Zimbabwe. A key role for ZA is seeking to direct people to competent legal representation.

Access to competent legal representation

3. Over the last 10 years, and particularly since 2004, several of the most experienced immigration and asylum practitioners have closed or reduced their legal aid work. The loss of Refugee and Migrant Justice (formerly the Refugee Legal Centre) and the Immigration Advisory Service has been a catastrophe, but these are far from the only losses in this area. When Refugee and Migrant Justice closed last year, the Government said this was simply a matter of that organisation failing to cope with the legal aid regime which everyone else was coping with; and that its closure was not a problem because others could fill the gap – in particular the Immigration Advisory Service, which the Government was to give a 20% share of the immigration and asylum legal aid market [1] . This year’s closure of the Immigration Advisory Service has shown the Government’s confidence was misplaced. Over the last 12 months, good quality firms such as Glazer Delmar and Fisher Meredith have stopped doing legal aid work in this area.

4. ZA note the figures quoted by the Justice Committee in its Third Report of Session 2010-11 [2] . Total civil legal aid spend has fallen from £1,044 million in 2003-04 to £941 million in 2009-10 (a fall of £103 million) [3] . Immigration and asylum legal aid spend has fallen from £193 million in 2004-05 to £89 million in 2009-10 (a fall of £104 million) [4] . There has been no serious attempt when making this more than 50% reduction in spending in this area to preserving quality, or ensuring competence. ZA’s experience is that it has become increasingly difficult to find competent legal representation; and we are all too familiar with the damage that poor legal representation has done in many cases.

5. Committee members have discussed concerns of cost and quality. Mr Robert Buckland MP, for instance, said [5] :

"…it is about the quality of the system that we can provide. The challenge facing any Government coming to office in 2010 was to accept the fact that there were limited resources and that those resources would shrink, and to square that shrinking level of resources with providing a system that would reach out not only to the poor but to those who are on the margins, are vulnerable and need real help."

6. ZA welcome the decision by the Government that asylum will remain covered by legal aid. However, Mr Buckland is right to highlight the importance of quality, and the reduction in legal aid fees by 10% [6] increases the existing problem of the financial viability of competent and effective legal aid work in this area. This will be made worse by the removal of flexibility offered to legal aid practitioners (trying to mitigate the cost of complex cases) by removing immigration from legal aid.

7. It does not appear to us that the Government or the Committee have so far fully understood the significance of regulation of immigration advice. In principle, ZA support regulation because we are all too aware of the consequences of bad immigration advice and the opportunity for exploitation of those who need immigration advice. However, immigration law is complex and regulation requires organisations that wish to provide advice to demonstrate general competence in this area. Many community and general advice agencies are not in a position to join the regulated scheme [7] , and hence cannot give immigration advice (and face criminal prosecution if they do so). When the Committee members discuss distinctions between ‘legal advice’ and ‘other advice’ [8] , it is vital that they recognise the criminal regulatory scheme that is peculiar to immigration.

Asylum and Immigration

8. Committee members have discussed questions of the boundary between categories of law. For example, Kate Green MP spoke of "the classic area [being] the boundary between immigration and asylum" [9] . She, as others, was particularly concerned with the possibility that cases present differently because "individuals can no longer use particular categories of law because they are now outside of scope" [10] . ZA agree there is a risk that the Bill will lead to an increase in asylum claims. However, ZA wish to highlight a different point about the boundary between asylum and immigration, which is that the Bill’s narrow focus on asylum risks failing to provide the protection the Government intends, including "in cases where people’s life or liberty is at stake, where they are at risk of serious physical harm" [11] .

9. Over the past decade many Zimbabweans have lived in destitution and limbo in the UK because their asylum claims have been refused, and at certain times (i.e. before January 2002, between November 2004 and July 2005 and more recently) they have faced removal to Zimbabwe. Yet for many of these people return has been, and remains unsafe. In October 2005 [12] , the Asylum and Immigration Tribunal made a general (country guidance) ruling that, if returned, they faced persecution. In November 2008 [13] , that tribunal made a similar ruling. Before these rulings, many Zimbabweans were refused asylum in circumstances where these rulings showed them to be refugees. More recently, the Upper Tribunal (Immigration and Asylum Chamber) made a general ruling in January 2011 [14] which continues to show that large numbers of Zimbabweans face persecution if returned to Zimbabwe. In that most recent ruling, the tribunal explicitly recognised a situation that applies to several Zimbabweans who have been denied asylum in the UK over the last decade when it ruled in respect of one of the appellants [15] :

"Whether JG could ever have substantiated a protection claim to remain or not, it is understandable that she would be unwilling to return voluntarily to a society so ravaged by violence, insecurity and an absence of sound governance as was Zimbabwe under ZANU-PF."

10. There are several Zimbabweans, who have needed legal representation to resist removal over the periods to which we refer. This includes individuals who have been refused asylum (and had asylum appeals dismissed), yet have subsequently been recognised as refugees. It includes families (such as that of JG and her children), who have lived in the UK for many years (and in the case of many children all or nearly all their lives), several of whom should have been recognised as refugees but were not and who do not have any safe or stable place to return to in Zimbabwe at this time. Many of these have been failed by the asylum system (the reasons for this include poor legal representation, to which we have referred above). Many of these have had to rely upon immigration (including Article 8 claims) and judicial reviews to secure their safety in the UK.

11. Finally, in relation to this, ZA endorses the importance of funding for test cases, as highlighted by Kate Green [16] . Test cases, funded by legal aid, have been vital for Zimbabweans and for the asylum system to recognise the severity of the situation in Zimbabwe. The capacity for bringing such cases has been seriously compromised by the closures of Refugee and Migrant Justice and the Immigration Advisory Service, to which we have referred. However, ZA also shares her and others’ concern about the quality of initial decisions, such as UK Border Agency asylum decisions (even when assisted by test case decisions). For example, in the face of the country guidance ruling in November 2008, save for during the first quarter, the UK Border Agency maintained a high refusal rate during 2009 while conversely (though perhaps inevitably) the rate of allowed appeals remained very high [17] .

Refugee Family Reunion

12. One area where the boundary drawn by the Government between asylum and immigration is inappropriate concerns refugee family reunion. The following is but one example:

T and his wife were granted refugee status in January 2009. Their children were stranded in South Africa having fled from Zimbabwe, and had experienced the violent xenophobia of 2008 in South Africa. T was desperate to get his children out. His legal aid lawyer helped identify the correct forms, communicated with the British High Commission in Pretoria and gave them correct information regarding the possibility of the children being able to travel without Zimbabwean passports. A number of applications were refused but the lawyer helped with the court appeal against the refusal. An Immigration Judge allowed the appeal and eventually visas were issued to the children. Shortly afterwards they arrived in the UK in September 2010, and were reunited with their parents after 7 years apart.

It has taken over 2 months for T and his wife to start believing that it is not a dream and that their children really are with them. The children still wake up from nightmares terrified that they have been taken away from their parents and are back in Zimbabwe or South Africa.

As T says, their family reunion would have been, "Almost impossible without legal help".

13. The stress of trying to achieve family reunion – even with legal aid – is colossal. Refugees deprived of legal aid and unable to reunite with their families will likely suffer excessive strain with the risk of serious ill-health, mental and physical. Continued family separation is a profound hurdle to refugee integration.

Telephone gateway and telephone advice

14. ZA welcomes the Government’s decision that asylum is not suitable for advice by telephone, and that asylum is not to be included in the initial mandatory telephone gateway for legal aid. However, we have several concerns about the mandatory use of a telephone service in other areas, which will create difficulties for refugees and others.

15. Being able to see papers is often vital in immigration and non-immigration problems. In non-immigration matters, it will often be important to see papers to understand a person’s immigration status. Sensitive matters often cannot be or will not be disclosed or discussed over the telephone. Many refugees, whether English-speaking or not, lack confidence on the telephone. Moreover, there is greater risk of misunderstanding over the telephone, including because the parties cannot see each other and cannot see that one or the other does not appear to be understanding or appears to need to say something more. We ask the Committee to investigate the Government’s intentions about telephone advice, and in particular whether advice given on the telephone will be followed up in writing. Written advice is generally important, but will be particularly important where advice has only been delivered by telephone. It may be the only way by which both parties can be sure that they have a shared understanding of the instructions given on the one hand and the advice given on the other.

16. ZA’s experience of seeking to access legal help via the Community Legal Advice Helpline following the closure of Refugee and Migrant Justice is far from encouraging. The helpline involved choosing between several options and several stages before finally speaking to someone. Advice on the helpline included referring people to legal firms that had ceased providing legal aid. The cost to callers using mobiles was very high (approximately £5.00). In summary, this service was expensive, inaccurate and for some prohibitively inconvenient.

17. ZA also has experience of mandatory telephone gateways – following the UK Border Agency’s introduction of requirements to make appointments by telephone to make fresh asylum claims and first asylum claims in 2009 and 2011 respectively. Individuals, organisations, including ZA, and legal representatives have wasted hours and days being unable to get through to make an appointment over periods of days and weeks.

Other areas of law

18. Committee members have discussed that arguments about legal aid scope may "miss the point [e.g.] because we are dealing with ordinary people who do not come in off the street and into the law centre to say that they have a debt problem, but who come in with human experiences and concerns and in need of legal advice" [18] . ZA stresses that refugees include people with debt, employment, housing, welfare (and other) problems just like others. However, for many refugees, questions about their immigration status, unfamiliarity with systems and structures in the UK, and the ongoing trauma of histories of torture or family separation increase their vulnerability to these problems. The decision by the UK Border Agency to withdraw all Refugee Integration and Employment Service funding will increase refugees’ vulnerability.

September 2011


[1] Hansard HC, 17 June 2010 : Columns 1023, 1024, 1026 and 1028 (Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice)

[2] Government’s proposed reform of legal aid , HC 681, 29 March 2011

[3] ibid , paragraph 14 & table 4

[4] ibid , table 4

[5] Hansard HC, Public Bill Committee, 19 July 2011 (afternoon) : Column 214

[6] draft Community Legal Service (Funding) (Amendment No 2) Order 2011

[7] Part V, Immigration and Asylum Act 1999 (establishing the Immigration Services Commissioner)

[8] e.g. Hansard HC, Public Bill Committee, 19 July 2011 (afternoon) : Columns 206, 234 & 235

[9] Hansard HC, Public Bill Committee, 19 July 2011 : Column 219

[10] ibid

[11] Ministerial Foreword by Kenneth Clarke, Ministry of Justice Reform of Legal Aid in England and Wales : the Government response , June 2011, Cm 8072 (page 4)

[12] AA ( Zimbabwe ) v Secretary of State for the Home Department [2005] UKAIT 00144

[13] RN ( Zimbabwe ) v Secretary of State for the Home Department [2008] UKAIT 00083

[14] EM ( Zimbabwe )& Ors v Secretary of State for the Home Department [2011] UKUT 98 (IAC)

[15] EM (Zimbabwe) op cit , paragraph 308(iv)

[16] Hansard HC, Public Bill Committee, 19 July 2011 (afternoon) : Column 219

[17] For Quarters 2, 3 & 4 for 2009, the Home Office Control of Immigration Quarterly Statistical Summaries show that the refusal rate in Zimbabwe cases was 74%, 82% and 76% respectively. For these same Quarters, the Summaries show the appeal allowed rate in Zimbabwe cases was 44%, 42% and 43%. (The allowed appeal rate for all nationalities in these Quarters was 26%, 31% and 30%.)

[18] Mr Robert Buckland: Hansard HC, Public Bill Committee, 19 July 2011 (afternoon) : Column 216

Prepared 7th September 2011