If you are detained, there can be big difficulties in accessing the legal advice you need to challenge your detention and/or progress your legal case.
Many people find that the lawyer that was previously representing them can no longer do so once they are detained, because the detention centre is too far away from where the lawyer is based. This isn’t because they can’t be bothered to travel – legal aid lawyers are very limited in the time and travel they can claim for under the legal aid funding scheme.
Some lawyers will continue working with you if they are in the middle of working on an aspect of your case, but communication will generally only be phone, email and fax. If there is a new legal matter to work once you are detained, your previous lawyer may not be allowed to represent you. This is because in England (where six of the seven detention centres are) only certain law firms are contracted to give advice to people in detention.
In general, there is no legal aid in England and Wales for immigration matters that are not asylum-related, apart from some cases involving domestic violence or trafficking. If you have a non-asylum immigration case, you will probably not be able to get legal aid advice on your substantive case, though you may be able to get legal aid to challenge your detention.
Legal aid is still available for non-asylum immigration cases in Scotland and Northern Ireland but if you are detained in Scotland (Dungavel detention centre) or Northern Ireland (Larne short-term holding centre), you will be moved to a detention centre in England if the Home Office is attempting to imminently remove/deport you. If you need a new England-based lawyer to carry on your legal case, you are unlikely to be able to get legal aid for non-asylum immigration issues in your case.
Lack of access to legal advice
The organisation Bail for Immigration Detainees (BID) conducts regular surveys on people in detention’s access to legal advice and representation.
In their June 2018 survey, they found that:
Only 50% of detainees held in immigration detention currently have a legal representative, and of those, only 61% of those have a legal aid solicitor.
The situation is even worse for people held in prisons under immigration powers. Out of 50 detainees who had moved from prison to detention, only 3 had received immigration advice from a solicitor while in prison (6%).
For those who booked an appointment with the legal aid solicitor in detention, two thirds had to wait more than a week, and just 20% received specific advice about their case.
As mentioned above, legal advice in detention in England is limited to certain contracted firms, operating through Detention Duty Advice rotas.
This used to be just two to four providers for each detention centre, who would have a week of appointment of slots in turn on the rota. In the autumn of 2018, however, the contracts for providing legal advice in detention were given to a much bigger number of firms.
There are now about 75 legal firms providing advice sessions in detention centres in England. You can see who they are, and when they are on the rota, on the spreadsheets on AVID’s website here.
This might sound like a positive development, but Dr Jo Wilding points out in her recent report on legal aid that the vast majority of these firms have no prior experience in doing detention centre advice work. Each firm has about three weeks in a year on the rota, meaning there is little chance to built up expertise in this area of advice.
The report goes on to say:
Detainees have no meaningful choice of provider and cannot change providers if they are dissatisfied. Given the short timeslots for advice, it was common under the old system for detainees to be unsure whether a lawyer had taken on their case or not. But with a maximum of four possible providers, support workers said it used to be relatively easy to find out which one a detainee had seen and to try to resolve any communication problems which had arisen. The change to the mode of providing advice in detention centres appears to have been a response to the arguments that the exclusive contract for detention work was unfair and deprived detainees of choice. However, the new system continues to give detainees no choice.
Options if you can’t get legal aid advice
So far this has painted a pretty gloomy picture, and the barriers to accessing legal advice in detention are really severe. Being cut off from legal advice, as well as your community and support networks, makes it very difficult to pursue your legal case and get your right to remain. That’s one of the reasons that we campaign against immigration detention (see our These Walls Must Fall campaign here).
But people do find ways to struggle on.
In our Toolkit, we suggest:
BID’s survey showed that 74% of people they spoke to had worked on their own immigration case.
Until the legal aid situation improves, this will continue to be necessary, and it’s vital that people are as informed as possible about what has happened in their case, what their options are, and who can help them.
Take a look at the Right to Remain Toolkit which has information on all of these things, and lots of suggestions for actions people can take in their own cases, and legal support actions if you are helping someone else.
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