Response to consultation paper:
“Transforming legal aid: delivering a more credible and
efficient system”
Submission by Detention Action
Main contact: Jerome Phelps, Director, Detention Action
Address: Unit 3R, Leroy House, 436 Essex Rd, London N1 3QP, UK
Tel: 020 7226 3114
jerome@detentionaction.org.uk
www.detentionaction.org.uk
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Responses to consultation questions
Q1.
No. We do not agree with the proposal to remove matters from scope. The proposals will
have a particularly severe impact on migrants detained after finishing prison sentences, who are
often held in prisons without time limit.
Q4.
No. Limiting legal aid to those with a strong connection to the UK will allow the government
to violate the rights of migrants with impunity, ending Britain’s tradition of quality legal
representation and justice for all. Immigration control raises serious issues of the right to liberty and
the right to asylum. Without access to legally aided representation, migrants will face being unable
to challenge exceptionally serious abuses of their rights.
The residence test for civil legal aid claimants should not be introduced. If it is introduced, a further
exemption should be created for migrants and refused asylum-seekers in immigration detention.
Legal aid should continue post-release for litigation initiated during incarceration.
Rule of law
Migrants with overwhelmingly strong cases will not be able to bring them, because they will not be
entitled to legal aid. This undermines the rule of law, as the government will be able to violate rights
with impunity. There will be no incentive to improve the quality of decision-making, as government
bodies will be largely out of the reach of the scrutiny of the law. The complexity of immigration law
means that most will be unable adequately to represent themselves. In areas of law such as
unlawful detention, a vital safeguard against arbitrary detention, it is unlikely that self-representing
migrants in detention will even be able to bring such cases.
The residency test discriminates against non-citizens. Access to justice is a universal right, which
should not be limited to the lawfully resident. Injustice is injustice, regardless of immigration status.
Access to justice is a basic constitutional principle, not a privilege that should be limited to those
with strong connections to the UK.
In an adversarial immigration system, it is vital that there should be equality of arms between the
government and individuals. The Home Office will continue to be represented in all litigation by
lawyers, at public expense. The integrity of the system requires that migrants have access to legal
advice to challenge their detention or deportation.
Indefinite detention
The UK has some of the least constrained powers of detention in the developed world. Unlike the
United States and most of the rest of the EU, there is no time limit on detention. The Home Office
exercises a discretionary power to detain in a wide range of circumstances. In the absence of clear
limitations on who can be detained and for how long, the oversight of the courts is essential. A
series of judgments have made clear that arbitrary indefinite detention is unlawful. If migrants in
detention lose effective access to the courts to challenge their detention, the government will
exercise a virtually unconstrained power of detention of foreign nationals, which would be almost
unique in the developed world. Even the indefinitely detained ‘enemy combatants’ of Guantanamo
Bay have lawyers.
The UK routinely detains migrants for periods of years. The High Court has repeatedly found that
migrants have been unlawfully detained for extreme periods, with little or no prospect of
deportation. In Detention Action’s experience, the vast majority of the migrants who have been
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released by the High Court have been dependent on legal aid. Under these proposals, they would
remain in detention indefinitely.
Migrants with mental health problems are in many cases not able to represent themselves even in
bail hearings. As a result, there would be no judicial scrutiny of their detention whatsoever.
The High Court has found four times in little more than a year that the Home Office has treated
severely mentally ill migrants in detention in an inhuman or degrading manner. These cases would
not have been brought without legal aid. The following are examples of migrants supported by
Detention Action who successfully challenged their detention in the courts, with the assistance of
legally aided representation. Under the proposals, they would not have been eligible for legal aid,
and would have remained in detention.
S, a severely mentally ill man, was found by the High Court in August 2011 in to have experienced
inhuman or degrading treatment, in breach of Article 3 of the European Convention on Human Rights.
This was the first time the UK’s treatment of a migrant in detention had reached the Article 3
threshold. S had a history of serious ill treatment and abuse prior to arriving in the UK, which had
been accepted by a number of medical experts. After serving a prison sentence, he was sectioned
under mental health legislation until April 2010, when he was transferred to immigration detention,
despite evidence that detention caused deterioration in his psychotic state. By continuing S’s
detention, the UKBA was found to have breached the negative and positive obligations under Article
3.1
In October 2011 the High Court found a further breach of Article 3 in the case of BA, a Nigerian with a
criminal conviction for smuggling drugs, who was detained between June and October 2011. He had
been assessed by the Probation Service as low risk of reoffending or serious harm to the public. He
was twice sectioned under the Mental Health Act during his prison sentence, with evidence of
psychosis and refusal of fluids. By July 2011, the UKBA had been informed by the Healthcare
Manager at Harmondsworth Immigration Removal Centre that he was not fit to be detained as he
could die imminently due to his refusal of fluids. After a spell in hospital, he was transferred back to
detention, in breach of a court order. He was not released until a further order from the High Court
on 7 October. The High Court described “callous indifference” on the part of the UKBA, alongside “a
deplorable failure… to recognise the nature and extent of BA’s illness.”2
In the case of Sino, the High Court found that an Algerian national with a psychological disorder and
a history of minor offending had been detained unlawfully for the entirety of his 4 years and 11
months in immigration detention.3 This is thought to be the longest ever period of unlawful
immigration detention in the UK. The court found that there was at no point any prospect of his
deportation becoming possible in a reasonable period, so there was never a power to detain him.
Efforts to obtain a travel document had been unsuccessful for three years prior to Mr Sino’s detention,
so it should have been clear at the outset that further efforts would prove unsuccessful.
E was detained for three years and eight months despite suffering from exceptionally severe mental
health problems. He was not able to give instructions to his solicitor, so Detention Action had to
involve the Official Solicitor on his behalf. It is believed that E was trafficked to Europe at a young
1
S, R (on the application of) v Secretary of State for the Home Department, [2011] EWHC 2120
(Admin), (5 August 2011), para 212.
2 BA, R (on the application of) v Secretary of State for the Home Department, [2011] EWHC 2748 (Admin) (26 October 2011)
3
Sino, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin) (25 August 2011)
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age and abused in several countries. His nationality is unknown, and there has never been any
progress in documenting him for removal. From the very start of his detention he made frequent
suicide attempts. His mental health deteriorated further in detention, including ever deepening
delusional thought and behaviour. Multiple diagnoses were made during his detention, including bipolar and schizoaffective disorder. The High Court ordered that he should be released to a
psychiatric intensive care unit, and he was released after almost four years in detention.
The proposals go against the will of Parliament. Parliament decided in 2012 that the Legal Aid,
Sentencing and Punishment of Offenders Act should maintain detention within the scope of civil
legal aid, as detention concerns the liberty of the individual, whose detention would likely prevent
him / her from accessing alternative advice. The current proposals, a bare few months later, will
reverse this decision through secondary legislation that may receive no Parliamentary scrutiny.
Right to asylum
Many recognised refugees require fresh claims and judicial reviews to prove their cases. Often vital
evidence only becomes available after the initial asylum process has finished. Given the asylum
system’s focus on the need for documentary evidence to prove all assertions (the ‘culture of
disbelief’ diagnosed by for example the Independent Asylum Commission4), the possibility of fresh
claims is crucial. This is particularly the case for asylum-seekers on the Detained Fast Track, who
face the twin disadvantage of accelerated deadlines, with two days for lodging appeal, and
incarceration in detention throughout the process. Both factors make it difficult for them to obtain
evidence during the asylum process, and particularly reliant on fresh claims.
B was a torture survivor from Uganda, where he was beaten and his finger-nails pulled out with
pliers. He was detained as soon as he claimed asylum, and placed on the Detained Fast Track. He
was traumatised to find himself back in prison, and did not fully describe his torture at his asylum
interview. No medico-legal report of his extensive scarring could be obtained within the time
available, and his application and appeal were refused. His legally-aided solicitor obtained a medicolegal report and a country expert report, and lodged a fresh claim. B was granted full refugee status.
K had been tortured in Palestine, and claimed asylum in the UK. He was refused asylum and detained
for almost three years, because Palestine was unable to issue a travel document for him to return.
He obtained a legal aid solicitor in detention, who commissioned reports documenting his physical
and psychological damage. The solicitor made a fresh claim on his behalf. He was granted full
refugee status on appeal and released from detention. He was later granted compensation for
unlawful detention.
Unworkable
The residence test is unworkable. It will require solicitors in other areas of law to act as immigration
officers and determine complex questions of lawful residence. The Legal Aid Agency will face a
significant administrative burden in determining whether lawful residence has been sufficiently
evidenced. In some cases, the question of whether the person is lawfully resident is precisely the
issue at stake in the litigation. This will lead to satellite litigation about whether someone is lawfully
resident. Lawful residents who are entitled to legal aid will be wrongly refused by risk-averse nonspecialist lawyers who cannot afford the risk of not being paid.
There will be an increase in litigants in person, at great cost in terms of court time and the efficient
administration of justice. The courts will be filled with poorly argued and prepared cases, which take
4
Independent Asylum Commission, Fit for Purpose Yet?, 2008, p40
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significant additional time to deal with. The additional costs to the courts are likely to exceed the
savings on legal aid.
Unintended consequences
Access to legal advice is vital to the psychological coping of migrants in detention without time limit.
As the majority of migrants in detention are not lawfully resident and do not have pending asylum
claims, they would not be entitled to legal aid, either to challenge their detention or to pursue their
immigration cases. Detention centres are already characterised by extreme levels of distress and
frustration, particularly amongst long-term detained migrants and those facing removal. At present,
the opportunity to explore legal avenues is one of the few positive steps available to migrants in
detention. Taking away access to legal advice from the majority would dramatically increase levels
of frustration and mental health deterioration.
This would have an impact on the manageability of detention centres. If detained migrants find that
legal avenues are closed to them, they are more likely to resort to protest and actions within the
centres. The HM Chief Inspector of Prisons has already found Immigration Removal Centres to be at
the outer edge of their ability to cope with the challenging and vulnerable people they were
holding.5
Removing access to legal advice from refused migrants would have the perverse consequence of
leaving them unable to verify whether they have further legal opportunities to stay in the UK. This
would make them less likely to cooperate with removal or accept assisted return. Many will believe
that, if only they could find legal representation, they would be able to stay in the UK. Rates of
assisted return are therefore likely to decrease. In addition, the removal of legal advice will intensify
migrants’ perceptions of an unjust system predisposed against them, and further incentivise them to
fight against it.
Evidence from Sweden and Australia shows clearly that ensuring access to legal advice and
information about the immigration process increases dramatically the levels of take-up of assisted
return. The costs of legal advice and assisted return are dwarfed by those of detention and enforced
removal. As a result, any savings made to the legal aid budget are likely to be cancelled out many
times over by increased spending per person on detention and enforced removal.
Q5.
No. Judicial reviews are a crucial safeguard against the unconstrained power of the state.
The proposals will make judicial review work financially unviable in the majority of cases, as large
amounts of work will be ‘at risk’. Given the precarious financial situation of legal aid immigration
firms even prior to these proposals, these cases will in general no longer be brought under legal aid.
As a result, people with strong cases will be unable to access justice.
Many judicial reviews are settled before going to court, usually because the government authority
backs down. This is both effective in defending the rights of individuals, and efficient for the
taxpayer, as little or no court time is used. Under the proposals, the solicitors will no longer be paid
for this work, despite the favourable outcome for their clients. The consultation paper notes this
anomaly, but refuses to address it. No assessment is made of the impact of the beneficiaries of
these cases of taking them out of scope.
5
HM Chief Inspector of Prisons, Report on an unannounced full follow-up inspection of Colnbrook Immigration Removal Centre, 18-22 June
2007, p6
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Even strong judicial reviews invariably involve a risk of refusal of permission. We frequently see
important cases involving our clients refused permission initially, yet go on to succeed. Given the
narrow profit margins involved, solicitors will be unable to carry the risk of a significant proportion of
their judicial review work going unpaid. Given that they will be unable to accurately determine in
advance which cases will not be paid, the logical conclusion will be not to bring any of the cases.
The proposal is not to refuse payment for cases determined to be without merit, but all cases
refused permission. This will include cases of clear merit which were correctly brought. Lawyers
performing their professional duty to their clients, and working to a high standard, will nevertheless
go unpaid. In any other form of business, this would not be considered a viable model.
Q6.
No. The borderline category is important because it is frequently impossible to judge
prospects of success before preparing the case. These cases frequently involve particular
importance to the litigant, including substantial injustice or suffering. Solicitors issued contracts by
the Legal Aid Agency should be considered to have sufficient professionalism to be able to use the
borderline category correctly.
Q31. No. The proposals would severely impact on the availability of specialist barristers with
expertise in immigration cases, including unlawful detention. The proposals will affect the principle
of equality of arms, as the government will be able to pay its advocates more, also at public expense,
and therefore obtain more senior and experienced representatives.
Q32. No. The proposals will make it increasingly unviable for specialists advocates to focus on
immigration work. The proposals will affect the principle of equality of arms, as the government will
be able to pay its advocates more, also at public expense, and therefore obtain more senior and
experienced representatives.
Q33. No. High quality expert reports are essential for many migrants to prove their claims, in the
context of immigration systems that place great reliance on documentary evidence. Reducing fees
for experts will reduce the availability of such reports, and further reduce access to justice. The
government will retain the ability to pay higher fees to experts, at public expense.
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