In our blog post of 6 September – Legal Aid Consultation: next steps – we set out the latest form of the Government’s legal aid proposals including some clarifications and concessions in relation to the residence test and the availability of judicial review. 

While it is encouraging that the objections of various campaign groups and professional bodies has been heard, the proposals which remain on the table could have very damaging consequences. 

Find out more about why the legal aid campaign is not yet won, in this post by NCADC legal volunteer Jacqueline.

Residence Test

As set out in ILPA’s helpful summary of the government’s response to the legal aid consultation, there has been some clarification as to what the proposed residence test will involve.  Crucially, some exemptions have been won:  detention cases; victims of domestic violence and forced marriage; protection of children cases; and SIAC cases.

Asylum seekers are excepted from the test and this exception will apply if a fresh claim is made.  If the Home Office considers that further submissions do not amount to a fresh claim then legal aid will be available for judicial review.  There is to be further consultation on judicial reviews, and so it is not clear yet whether legal aid fees will only be paid for judicial review applications which subsequently succeed at the permission stage.

It is now clear that, once asylum is granted, the 12 month period of lawful residence will be taken to begin at the date of application for asylum, so those with refugee status do not need to wait a full year from successful decision in order to be eligible for legal aid.  This creates an anomaly whereby those who are granted asylum within a year will have a window of time where they are not eligible for legal aid.

Nick Armstrong of Matrix Chambers wrote a useful briefing and points out the following problems:

• The residence test will still exclude anyone who cannot show documentation to prove they have 12 months residence.  This could include those with leave to remain who are homeless, or who have had to flee their homes and not thought to bring documentation with them (as, for instance, they have not had to prove their immigration status before.
• Especially vulnerable groups such as children and those with physical disabilities and mental illnesses, who are currently able to rely on legal aid in order to secure support and accommodation, will not be able to claim legal aid if their immigration status is unclear or if they cannot show supporting documentation.
• Claims about serious ill treatment at the hands of the state will now fail the residence test.  For example, the recent news stories concerning the sexual abuse of inmates by Serco officers at Yarl’s Wood immigration removal centre (original allegations have now been corroborated) – the officers sought to deport those who complained, and these complainants would fail the residence test.

Additionally, the residence test will have disastrous consequences in cases where someone is to be imminently removed to a country where they will be in danger and their last hope is for their solicitor to gain a last-minute injunction.  A key example of this occurred last year, when dozens of Sri Lankan asylum seekers were removed from a deportation flight as a result of a high volume of injunction applications leading to an acceptance in the High Court that the deportees were at risk of torture upon their return. When the residence test is brought into force, those at similar risk would fail the residence test, be ineligible for legal aid and unable to pay for this legal work.

The Ministry Of Justice offers an “exceptional funding” scheme, which could arguably be used for all of these types of claims, but they are designed for rare cases only, so is very unlikely to make up for the significant shortfall of legal aid available for those who are in desperate need.  Liberty’s opinion paper on the legality of the residency test points out that:

The problem is that the exceptional funding regime requires non-residents to establish a separate and distinct individual violation, quite apart from the merits of whatever case they would be receiving legal aid funding for.  That high-threshold additional requirement is imposed only on non-residents.  So, it cannot justify the differential treatment.

A common theme in much of the commentary is that there is no justification for the residency test, legal (see the Liberty article) or otherwise.  To justify the residency test, surely the Government must explain the fairness of supplying different support to people based on their immigration status.   They have not done this, other than to assert that all of the new legal aid measures are “designed to restore the public’s faith in the system” – this differentiating (and potentially discriminating) between individuals in need of support on the basis of immigration status requires a much stronger justification even by the government’s own measures.  Otherwise, it is difficult to view the residence test as having any purpose other than to pander to the way in which migrants have become a scapegoat for the UK’s economic problems.

Speaking of economic problems, it is difficult even to find credit in a financial argument for the residence test.  In fact, it would appear that the residence test will be costly to implement, costing local councils an estimated £26 million per year as well as further costs to the Legal Aid Agency and the Home Office, whilst “the Ministry of Justice has not been able to estimate any financial savings”.

Judicial Review

Those who fail the residence test will have greater difficulty in accessing the judicial review system as well.  The reform of legal aid availability in the context of judicial review has not been ultimately decided yet and there is a further consultation on this to come.

A high proportion of judicial review applications are made in respect of immigration and asylum cases and it is essential that migrants threatened with deportation are able to benefit from the judicial review system.

In the case of Odette Sefuko who had been an anti-rape campaigner in DRC and consequently persecuted, her asylum claim failed and it was judicial review which prevented her removal.  Subsequently, her removal was suspended by the Home Office and she was released from Yarl’s Wood detention centre.  Had it not been for her access to judicial review, she would likely have been removed to Uganda, as the Home Office believed that she was Ugandan, not Congolese.  NCADC supported Odette’s campaign for justice, and you can read more about it here.

While Judicial Review is needed in order to hold state bodies accountable for unfair decisions, it can also be used where an organisation (such as the UKBA with its notoriously huge backlog) has repeatedly failed to make any decision at all.  In the case of one Syrian man who has a British wife and two British children, and whose discretionary leave to remain expired in 2007, what should have been a reasonably routine application for an extension took five years to be dealt with.  It was only after his solicitors submitted a judicial review application that he received his status documents.  By this time, his wife and children were living abroad and the delays caused a breakdown in his relationship with his young son, as he could not visit his family.

If the workload resultant from the high number of immigration-based judicial review applications is causing a problem, the solution is not to deny justice to migrants and refugees by restricting their access to legal aid and judicial review.  A fairer way to ease any strain on the judicial review system would be to scrutinise the way cases are handled in the Home Office and by UKBA and find a way to increase competence, speed and fairness.  Judicial review exists to allow the government to be held accountable for its decisions.  Contrary to this, proposals which will restrict access to judicial review run a severe risk of penalising migrants for the Home Office’s shortcomings – quite the opposite of ensuring government accountability.