This post is by Nick Armstrong, a barrister at Matrix Chambers specialising in social welfare law including immigration, community care and education law. You can follow Nick @njbarmstrong on Twitter.
Those of us who have worked in legal aid for any length of time are familiar with the chimes of doom that from time to time sound around us. For me, the last time was 2003-4 when the Legal Services Commission announced its fixed fee scheme for immigration and asylum cases. That came in the same year as the Asylum and Immigration (Treatment of Claimants, etc) Bill, which as published, contained at Clause 10 a proposal to oust judicial review from virtually all immigration-related decision-making. I well remember hearing Michael Fordham QC, then most often seen representing the government, telling a packed meeting in an underground room somewhere near Waterloo, that there were limits to Parliamentary sovereignty, and that if this clause became law, he would be inviting High Court judges not to enforce it. Revolution was in the air.* For my part, I spent that meeting wondering whether I could afford to get married the following year.
Even by this standard, however, the current assault, contained in the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO), feels bad. The brutality of the cuts proposed in this bill, coming as they do the year after Refugee and Migrant Justice closed, and with the other major not for profit centre in the area, the Immigration Advisory Service (which took over much of the RMJ work), having closed its doors this week, feels extraordinary. The particular focus on social welfare law, previously supported by successive governments because it is relatively cheap and it does an important job, is very different to anything that has gone before. We are told that this is purely because costs have to be cut. Forget the points of principle, it is said. Forget too any appeals to fairness or even rationality. The Coalition is cutting and that is the end of it.
The result is that LASPO feels like a car crash. The focus on social welfare is easily explained: it is less likely than crime or family to attract the protection of Article 6 of the ECHR. Older Strasbourg cases like Maaouia v France (2001) 33 EHRR 42 and the very different context of European administrative law mean that social welfare may not engage civil rights for the purposes of Article 6. Hence there is less likely to be a judgment requiring legal aid to be provided. Hence it is out: simple as that. Once again, the government cuts because it can. This of course ignores the fact that Maaouia is almost certainly wrong, but that is for another day.
The irrationality of all this is also easily made out. Let us start with some cost/benefit. That is after all what legal aid lawyers are required to do in order to justify their modest (and often recoverable) costs in support of litigation. So, applying those skills here, the Justice Select Committee report of 15 March 2011 tells us that the cost of all civil public law in 2009-10 was £7 million. That was down on the £9m spent the year before. For education the figure was £3 million, and for community care, £6 million. Immigration is admittedly higher, but these are some of the figures we are talking about.
Compare and contrast: total cost of LSC redundancy bill so far. Those are the redundancies that flow in part from the same reforms. As revealed in a Freedom of Information request in June this year, they have cost £7million. Including £1m to just four individuals. So the redundancy packages associated with reform cost the same as the total amount spent in a year on public law, and more than twice that spent on education.
The LASPO bill is of course less bad in some areas than others. Education has, in fact, been relatively spared now that special educational needs has enjoyed a reprieve. Some of those lawyers are now beset by survivor guilt. Community care also looks better. Problems, however, remain: Clause 26 of the bill establishes the means to require services to be delivered by telephone. That heralds the much discussed telephone gateway, which clients will be required to use before accessing solicitors and full legal aid. This would have massive repercussions for the specialist providers in this market place. The experience of many of those providers is that the quality of existing telephone advisers is too low to properly filter and refer cases. Social welfare law is very specialist, and very fast-moving. Applications to the High Court are often required in a matter of hours. But if a client cannot get a referral, and cannot get legal aid without a referral, then the results are obvious.
Immigration, however, remains the real story. This is where the pile up really occurs. There is not the space here to go through all the detail of the bill save to say that it was produced very quickly and it is correspondingly badly drafted. Definitions materially vary between clauses. Provision is made in respect of appeal procedures that do not exist. I was expressly told in one meeting with civil servants not to expect to understand the policy intention behind the bill merely by reading its provisions. My only comment at this stage is that the bill is a complicated mess, and if it comes in, in anything like its current form, then people like me are going to be spending a lot of time unravelling it. It will undoubtedly generate its own litigation.
The key and really breathtaking change, however, is contained in paragraph 25 of Part 1 of Schedule 1 of the bill. This has the effect of completely removing legal aid from all non-asylum, non-Article 3 claims (the latter being torture and inhuman or degrading treatment: these usually cover the same ground as asylum, i.e. seeking to stay in the UK because you will be beaten up and perhaps killed if returned). Everything else is out. Things like immigration detention claims remain in, but there is nothing else to assist with the fundamental claim to enter or remain in theUK.
The government believes that this knocks out students (loss of revenue to higher education institutions issues there), family claims, and those pesky foreign national prisoners who say they cannot be removed because they have fathered (or indeed mothered) a child in theUK. On the face of it, the government is right. However, just like bottom trawling, and just as generalities foster racism, so the broad brush also catches those who no-one could sensibly suggest do not deserve advice and representation.
Here, therefore, are a few details:
- The main class of potential claimants who will be excluded by these proposals are those who seek to claim under Article 8 of the ECHR and equivalent parts of the Immigration Rules.
- This certainly includes family claimants. That in turn includes refugee family claimants, which in turn includes the family members, including children, of those who have been separated from their families by war, are now stuck in refugee camps abroad (including, or especially, refugee camps of the kind currently seen in the Horn of Africa. See here for an insight into conditions there: http://t.co/Kp9keqH), and who are now seeking to join their only remaining family members.
- The government thinks these cases are rare. They are not. I have done a lot of them.
- The government says, in its response to consultation, that individuals in this situation could simply claim refugee status themselves. That is laughable. Refugee claimants have to be within the country of refuge. It is also, of course, a serious criminal offence to bring them here.
- The government also thinks cases like these are straightforward and do not require representation. That too is wrong. It has taken me up to four years and several contested hearings to get some of these families into theUKfrom these kinds of situations, such are the scale of the obstacles stacked against them. Some have histories so bad immigration officers and judges do not believe them. Many officers are simply appalling decision-makers. Relationships have to be proved, with DNA evidence in some cases. Judges, whatever their qualities, and however sensitive some (and it is only some) may be to litigants in person, cannot collect evidence. There is also considerable inertia in immigration decision making.
- Also caught are the people already here but who seek to remain. This includes trafficking victims, who may not be able to claim that if returned they would return to trafficking (such that might engage Article 3). Their claim may instead be that they have mental health problems, or children in school, or simply that their only chance of stability is in theUK. All such claims will be run as Article 8 claims. Article 8 means more than just family; it also means protecting the core being, a component of private life.
- The same is true of victims of domestic violence. Women who seek to leave abusive husbands but who are dependant on that husband’s immigration status will not now be able to get legal advice about that immigration-related matter. So back they must go to the relationship.
- Also caught are unaccompanied minors. Every year a large number of children come to theUK, claim asylum, fail, but are granted discretionary leave until six months before their eighteenth birthdays. When that point arrives they seek to extend their leave. Often that will be another Article 8 claim, put on the basis that they have largely grown up here, and have begun to put down roots. It follows that these children will not now be entitled to legal aid. This consequence is particularly interesting because most of these children will have been accommodated by local authorities. As such they will be “looked after children” within the meaning of the Children Act 1989, and entitled to various forms of support including under the leaving care provisions of that Act. Local authorities I know are now very concerned that if the bill goes through, this will mean paying for legal advice that is currently funded through legal aid.
- In what appears to be a clear failure to think through the policy of the bill, these individuals who are refused legal aid will never get legal aid. The bill also excludes legal aid for immigration judicial reviews where there has been previous legal proceedings (amongst other things). The purpose, it is thought, is to avoid legal aid for second bites of the cherry. That, however, is not the effect. The bill contains no carve out for those cases where the individual did not get legal aid the first time around because they were putting an Article 8 claim. Nor, incidentally, is there a carve out where there were previous legal proceedings, the individual won, and the Home Office then reconsidered. In those cases, if later proceedings are necessary, for example because the Home Office just refuses again, that individual is not now entitled to legal aid to re-challenge. This would appear to be an obvious mistake. Let us hope they correct it in time.
As I have said, those of us who are looking at this bill, and who are trying to advise MPs (or more likely, Lords – it seems unlikely that the House of Commons will do anything at all) as it fast tracks its way to an anticipated Royal Assent in May 2012, have been told not to put these points of fairness or principle. The government is not interested. Rather, we are told, we should concentrate on where the bill will not work. Better still, we should highlight where it will not reduce costs.
We will do that. We have a lot of points. So, where parents cannot get legal aid to avoid deportation on the grounds that they have British children, judicial review will be sought in the name of the child. Where there are holes in the bill because it was hastily drafted, those holes will be exploited. Maaouia will be tested, perhaps before sympathetic judges who are now seeing a lot of very vulnerable litigants in person. Where claims that should be Article 8 can be reformulated under Article 3, that will be done. There will also be judicial reviews of local authorities on the basis that they should be supporting vulnerable adults and children and paying where legal aid used to pay. It will be observed that those authorities cannot provide the advice themselves, for exactly the same reason why charities and other providers cannot step in and fill any gap: immigration is special. To provide immigration legal services you have to be authorised under Part V of the Immigration and Asylum Act 1999.
All this will be done, and more besides, and no doubt it will mean that the bill does not work, and that it does not save public money. But that, however, is not why I have written this blog. All that I can say anywhere, and have said already.
No, I have written this blog because here the point can be wider, and more fundamental. Here, on a Friday afternoon, among friends, comfortable in the free-flowing-world-of-ideas-between-right-thinking-people that is the blogosphere and the realm of social media, I think I can say what it is said the government will not hear. It may even be that I do not need to modify my tone.
Given that freedom, I say just this: there is a point of principle. There is a requirement of fairness. This is all irrational. And, just as in 2003, I am completely furious about it.
Look again at the types of people listed above. Look again at the scale of their need and the relatively low costs of helping them. Look at the people coming into the offices of legal aid solicitors today and every day. Look at that Guardian photograph of the Somali camp. Check again that e-mail which arrived, direct, on a Saturday morning from the woman who had happened to see your name attached to a case when she could not get representation for her and her autistic 11 year old when she was about to be removed. Do we really say, and do we really not want to talk about, that however straightened the current times, we cannot help all these people? Just because we do not know them, the ministers and civil servants who take these decisions never met them, they are foreign anyway, and helping them might also mean helping a few less desirable others along the way?
I am afraid I think it is beyond argument that all these people should have our support. I think we can afford it. I should also say that I have had my own moment of despair. But a friend told me I could not give up, because the clients cannot give up. I think she is right.
*Should anyone doubt the enormous constitutional seriousness of what was proposed by the then Labour government, see Sir Stephen Sedley’s collection of essays, Ashes and Sparks: Essays on Law and Justice (Cambridge, 2011) at pp 128-30 and 388-9.