3Legal advice and representation
Legal complexity
39.Article 5(4) of the European Convention on Human Rights states:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”55
40.It is essential that anyone faced with deprivation of liberty has sufficient and prompt access to the legal advice they need to help them to challenge the loss of their liberty. Legal advice to immigration detainees is even more essential because immigration law, rules and policy have become so complex over time that even the most experienced practitioners find the system difficult to navigate. Immigration law, rules and administrative guidance changes frequently; immigration law is spread between many different statutes and regulations; there is a high volume of administrative guidance and immigration rules are long and complex. Practitioners told us that even senior judges in the Court of Appeal find the immigration system “impenetrable” and difficult to understand. It was “unrealistic to expect anyone, let alone immigration detainees, given the particular obstacles and vulnerabilities that affect many”, to challenge their detention at the High Court or navigate the immigration system on their own.56
41.The House of Lords Constitution Committee inquiry into the “The Legislative Process: Preparing Legislation for Parliament” noted that immigration law was among the fields where complexity:
“had developed to the point that it was a serious threat to the ability of lawyers and judges to apply it consistently—not to mention raising rule-of-law concerns as to the ability of the general public to understand the law to which they are subject.”57
42.In our inquiry, we looked in particular at appeal rights against immigration decisions and how the changes over the years have created a particularly complex appeals regime. Annex 2 shows a timeline of the way in which such rights have been changed over the years.
43.Individuals cannot enforce their rights effectively if they do not understand them. There is also a greater likelihood of misapplication if the law is overly complex. The Law Commission currently has a project—“Simplifying the Immigration Rules”—considering how immigration rules can be made more simple and accessible. We welcome this. The Government should also consider asking the Law Commission to look at consolidating and simplifying immigration law more widely.
Availability of legal advice
44.Other than the legal complexity facing individuals seeking to challenge their administrative detention, there are the procedural complexities of challenging detention via judicial review or habeas corpus at the High Court and “evidential complexities” wherein crucial evidence or information often needs to be filtered through “voluminous” and “disorganised” case files or where critical documents such as detention reviews are missing from Home Office case files and need to be requested.58
45.Under the criminal justice system, those held in custody in a police station have near-immediate and free access to legal advice to assist them in relation to both challenging their detention and in relation to their underlying case. For immigration detainees, legal aid is available for challenges to detention including for immigration bail and judicial review applications and to challenge a removal decision, but it is generally not available for most immigration applications.59 Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) non-asylum immigration cases were taken out of scope of legal aid, subject to narrow exceptions for some applications by victims of domestic violence, and of trafficking and modern slavery.
46.Witnesses told us that the lack of early legal help and assistance for individuals making immigration applications has fundamental consequences:
“There is a very close correlation between the legality of the detention, the decision-making on detention and the substantive immigration decision. If you cannot challenge the substantive decision, it is difficult to challenge your detention decision because it is all linked to removal. That lack of legal representation at an earlier point in the process has a fundamental knock-on effect… It is very costly to detain a person: £34,000 per year—£125 million. It is used where individuals should not be there because they would have very good claims if they had proper representation. Many of them will only get it at the point where they are detained.”60
We note that the Government response to our report on Enforcing Rights indicated that the review of the Legal Aid, Sentencing and Offenders Act would cover “the reduction of scope of legal aid for non-asylum immigration matters.”61
47.Article 5 (of the ECHR) provides that detainees should be entitled to take proceedings by which the lawfulness of detention should be decided speedily by a court and release ordered if the detention is not lawful. Given the challenges individuals face in detention, and the complexity of the law, legal advice and representation is crucial to help individuals to pursue their rights effectively. Legal aid is currently available to challenge detention decisions but generally not available for most immigration applications. Restricting legal aid to such challenges without addressing the underlying immigration case may undermine the effectiveness of such challenges. It may also be a false economy. Not only is detention itself expensive, but there are likely to be costs elsewhere in the system, if the lack of legal aid means it takes longer to settle someone’s immigration status and wastes more court time with unrepresented individuals. It could be cheaper overall if legal advice were provided at the outset, so that all issues could be properly considered when the issues first arise and thereby reduce the need for repeated court interventions. We have already recommended that the Government consider whether immigration cases engaging the Article 8 right to private and family life be brought within the scope of civil legal aid, where they would be available on the means and merits test basis. We consider there is a case for similarly reinstating legal aid for all immigration cases.
Legal advice in IRCs
48.In the criminal context, the longest an individual can be made to wait before getting legal advice is 36 hours after arriving at the police station (or 48 hours for suspected terrorism).62 Under the Detention Duty Advice Scheme (DDA), the Legal Aid Agency operates free legal advice surgeries in IRCs in England. Solicitors’ firms that have immigration and asylum contracts with the Legal Aid Agency have other contracts to run regular DDA surgeries where immigration detainees can receive up to 30 minutes of free legal advice irrespective of financial eligibility or the merits of their case. But we heard of several problems with the provision of the initial legal advice under the DDA scheme.
49.Detainees need to sign up for an appointment at the IRC’s library and due to the high demand, they may have to wait up to two weeks or longer before being able to see a legal adviser. Those detained on the grounds that their removal is imminent may be removed before that. Detainees should have access to legal advisers in the first few days of detention to enable them to challenge any potentially unlawful deprivation of liberty and take advice on their substantive immigration case. Only providing access to legal advice for those in lengthy detention (after 14 days) is unacceptable.
50.Witnesses told us that the half hour slot was insufficient to assess the detainee’s case. It included the time for the detainee to “be brought to the legal visits area, to obtain the right interpreter on the telephone, to look at the detainee’s documents and take instructions sufficient to understand the case, to explain their legal position to them and give advice, and to obtain evidence of the detainee’s means […]”.63
51.Statistical data and data from surveys conducted by HMIP on the number of detainees who have a legal representative is particularly concerning. HMIP’s survey of Brook House IRC showed that one-third of detainees did not have a solicitor and only a third of those who did had received a legal visit.64 The organisation Bail for Immigration Detainees’ legal advice survey from Spring 2018 which interviewed 103 immigration detainees across different detention centres showed that three quarters of immigration detainees were not taken on as Legal Aid clients following their free appointment.65 Witnesses told us that detainees were not being taken on as legal aid clients because of the reduced scope of legal aid following legal aid cuts in 2013,66 or because of the rigorous application of the means and merits test which assesses eligibility for legal aid.67
52.A number of witnesses expressed concern about recent changes to the larger number of firms which can now provide DDA surgeries at IRCs.68 Previously DDA surgeries were provided by a small number of firms but as of September 2018, a greater number of firms can receive a contract for detention centre duty work. This has raised concerns about whether there will be a consistent level of expertise, given that the decision to disperse contracts to over fifty firms will mean one firm may appear only once or twice per year in the rota and the possibility that some firms will not have a proven track record in detention work.69
53.Those in the criminal justice system have initial access to prompt legal advice; there should be similar provision for those in immigration detention. Initial legal advice appointments under the Detention Duty Advice scheme should be made automatically, unless the individual opts out. Surgeries should be long enough to ensure that there is sufficient time for the detainee to explain their case and for the adviser to collect the necessary details needed to take the case forward to representation. The new system for providing advice should be kept under review to ensure that the firms responsible for advising detainees have the necessary skills and experience to do so.
Legal advice in prisons
54.The practice of holding ex-prisoners, who have completed their sentences and who are subsequently liable to be deported, in prisons has been repeatedly criticised by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT).70 Nonetheless, the Home Office’s detention statistics shows that there were 301 detainees held in HM Prisons under immigration powers at the end of September 2018.71 If it is necessary and proportionate for an individual to be detained under immigration powers after they have finished serving a prison sentence, then detention should take place in an immigration removal centre.
55.The term “foreign national offender,” which is commonly used to describe both current and former prisoners, is confusing. It can be used simply to mean any foreign national who commits a crime while in the UK, including offences which do not necessarily attract a prison sentence. It may also be used to refer to those who are liable to automatic deportation under the terms of section 32 of the United Kingdom Borders Act 2007. This applies to individuals sentenced to imprisonment for 12 months or more or convicted of a “serious offence”72 and sentenced to imprisonment. In this section we are using the term to apply to anyone who is serving a custodial sentence with immigration issues.
56.There are widespread concerns that those being held in a prison and facing removal or deportation are deprived of all the basic protections available to detainees held in IRCs.73 Individuals held in prisons post custody generally have very limited contact with the outside world and limited access to mobile phones or the internet. As detainees in prison are not covered by the Detention Centre Rules and Detention Service Orders they are also currently excluded from other important safeguards against excessive detention such as rule 35 mechanisms to identify vulnerable individuals at risk of harm in detention.
57.Crucially, there are no detention duty advice surgeries in prisons which inhibits any resolution of immigration cases and inhibits detainees’ ability to apply for immigration bail from prison. HMIP was among the witnesses who expressed serious concern about the lack of legal advice available to immigration detainees who continue to be held in prisons at the end of their criminal sentences. We heard that access to lawyers for these individuals depends on referrals by charities or other detainees passing information to their own lawyers.74
58.The Home Office can be slow to notify individuals serving custodial sentences that they will continue to be detained under immigration powers at the end of their sentence. Individuals can be notified a few days before their release date or even on the day they are due to be released.75 Foreign national ex-offenders can therefore spend long periods of time in detention without proper access to legal advice or real opportunity to challenge their detention.
59.We consider that immigration issues should be settled, as far as possible, while prisoners are still serving their sentences. The lack of immigration legal advice in prison also means that in some cases there is a period of (expensive) immigration detention at the end of a sentence simply because there are outstanding legal avenues, which, with proper access to legal services, could have been resolved previously.
60.Foreign nationals who are serving custodial sentences in prisons and who are liable to deportation at the end of their sentences are among those detained under immigration powers for the longest periods. This is inappropriate and inefficient. In many cases it should be possible for the Home Office and the Foreign and Commonwealth Office to seek to resolve early in the course of a sentence problems with documentation or the attitude of the receiving country. Access to legal advice in prison would mean that such offenders could engage with the legal processes to resolve their immigration status while serving their sentence. The Home Office should make it a priority to resolve the immigration status of prisoners at the earliest opportunity. People liable to deportation should be given notice of the Home Office’s intentions to deport as far before their release date as possible. Individuals should then have prompt and automatic access to legal advice so that they can engage with the legal processes for challenging deportation appropriately. This should mean immigration status issues are resolved before custodial sentences end and offenders can either be released or removed at the end of their custodial sentence. This would also help to manage the expectations of both the detainee and their families.
55 Human Rights Act 1998, Schedule 1, Article 5(4)
57 House of Lords, Report of the Select Committee on the Constitution, Session 2017–19, HL Paper 27, para 113.
59 Legal aid is available in the following cases: Asylum cases, including applications by refugees and people with humanitarian protection for settlement and claims for leave to enter or remain arising from Article 2 (right to life) and Article 3 (prohibition on torture, inhuman or degrading treatment or punishment) of the European Convention on Human Rights; Applications for indefinite leave to remain by victims of domestic violence whose current immigration status is based on their relationship with the perpetrator; Victims of trafficking, slavery or forced or compulsory labour seeking to regularise their status. Legal aid is also available to challenge a decision to remove someone.
61 Ministry of Justice, Government response to the Joint Committee on Human Rights tenth report of session 2017–19: Enforcing Human Rights, Cm 9703, September 2018, p 5
62 Gov UK, Being arrested: your rights
65 Bail for Immigration Detainees Legal Advice Survey Spring 2018
66 The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) dramatically reduced legal aid available for immigration matters. Legal aid is no longer available for Applications for leave to enter or remain based on an individual’s right to private and family life under Article 8 of the ECHR (except under the ‘Exceptional Case Funding’ scheme); Legal advice or representation in most non-asylum immigration matters including family migration cases (including family reunification applications under the Refugee Convention); student and visitor visas; and deportation cases (unless the case has an asylum or Article 3 (prohibition of torture) element.
67 Q7 [Celia Clarke, Bail for Immigration Detainees]; Jo Wilding (IMD0048). The merits test involves looking at a detainee’s bank statements/proof of income but in some cases legal providers cannot take on a case because detainees may not have documents to show them. This may be because they were detained in a raid or while reporting and a landlord has disposed of their belongings because they did not return.
68 Q8 [Dame Ann Owers, Independent Monitoring Board]; Q22 [Amanda Weston QC, Stephanie Harrison QC and Toufique Hossain]; Jo Wilding (IMD0048)
69 Jo Wilding (IMD0048); Research report commissioned by the Bar Council, Dr Anna Lindley, SOAS (University of London) Injustice in Immigration Detention Perspectives from legal professionals, November 2017
70 Council of Europe, Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 30 March to 12 April 2016, April 2017, p 93
71 Home Office, Immigration Statistics, year ending September 2018 (table dt_13_q)
72 “Serious offences” are defined in The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004
73 Law Centre (NI) (IMD0024); Garden Court Chambers (IMD0058); Virgo Consultancy Services Ltd (IMD0004); Her Majesty’s Inspectorate of Prisons (IMD0016); Duncan Lewis Solicitors (IMD0047); Bail for Immigration Detainees (IMD0012).
75 Virgo Consultancy Services Ltd (IMD0004); Research report commissioned by the Bar Council, Dr Anna Lindley, SOAS (University of London) Injustice in Immigration Detention Perspectives from legal professionals, November 2017, p 49.
Published: 7 February 2019