Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, in moving Amendment 62 I shall speak also to Amendments 63 to 67, 69A and 70A. I am delighted to follow the noble and learned Baroness and the previous debate. This is an added dimension, which also relates to a very small number of very vulnerable people. I shall try to explain it simply because it is complex but I will do so as well as I can, not being an expert an immigration rules, rather as the noble Lord, Lord McNally, is not an expert in the subject. However, there are principles here that it would have been impossible to avoid. I start with the purpose of Amendments 62 to 67. These six amendments need to be considered together. They extend the legal aid protection provided by paragraph 25 of Part 1 of Schedule 1 to victims of domestic abuse whose immigration status is dependent on their abusive partner. Paragraph 25 currently provides for legal aid for migrant victims of domestic abuse whose leave to enter or remain is dependent on their relationship as the partner of a British citizen or person with indefinite leave to remain so that they may have legal aid to help them address the consequences to their immigration status of escaping the abusive relationship. These amendments would extend the same protection to migrant victims of domestic abuse whose immigration status is dependent on a partner who is exercising European free movement rights or on a partner who has limited leave to enter or remain. The Government have indicated that they are considering the first of these extensions—that related to European free movement rights—but not the second. I must add that the amendments stop short of providing legal aid in relation to immigration for any victim of domestic abuse but are restricted to those who are lawfully in the UK, where their lawful presence is dependent on that very relationship in which they are experiencing abuse. Several organisations, including Rights of Women, the National Federation of Women’s Institutes, Southall Black Sisters and the Moroccan Women’s Centre, have highlighted the situation of victims of domestic abuse who face being trapped in an abusive relationship because their immigration status is dependent on that relationship and they fear the immigration consequences of seeking to escape. However the Government have already amended the Bill to provide legal aid for some of these victims. For instance, it now provides for victims who are dependent on British citizens and settled persons. The Government have agreed to give further consideration to other victims as yet left out of the Bill, such as those dependent on European Economic Area nationals and others exercising free movement rights, those dependent on migrants with limited leave to enter or remain and those dependent on migrants whose status is irregular. Each of these classes of victim face the same or similar difficulties to the class of victim for whom the Government have now made provision in the Bill. Those difficulties were described by the Minister for Legal Aid. He said: "““There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status. The type of trauma that they might have suffered will often make it difficult to cope with such applications. We also appreciate that people apply under great pressure of time, and access to a properly designated immigration adviser is a factor””.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 19/7/11; col. 245.]" Therefore, the Minister identified four factors relevant to why legal aid should be provided in the cases to which he was referring: the risk that the victims will stay trapped in abusive relationships for fear of jeopardising their immigration status; the trauma they may have suffered which often makes it difficult to cope with the application; time pressures that apply to immigration proceedings; and difficulties of access to a properly designated immigration adviser. These factors are borne out in that domestic abuse-related immigration applications are far from straightforward. Further, the exclusion of some victims from legal aid offends the Government’s own factors which they identify as needing to be taken into account. They include the fact that the UK Border Agency’s record in dealing with these cases is especially poor with some 61 per cent to 69 per cent of refusals being overturned on appeal; the gathering and presentation of evidence, with associated costs and risks, is often necessary for success; many applications are, sometimes wrongly, refused by the UK Border Agency on the grounds of inadequate evidence; to escape abusive relationships victims need to understand the implications for their immigration status; victims need immigration advice; only regulated advisers can provide this advice and without advice and assistance many victims will not find the confidence to escape their abuser. The Bill risks the undesirable outcome that victims of domestic abuse will remain, with their children, in abusive relationships for fear of the immigration consequences of escaping those relationships. The fact that the Government have decided to deal with some aspects but not all for people in this situation adds to the confusion. I hope that the Minister will clarify that. However, I genuinely believe that Amendments 62 to 67 would overcome the problematic and dangerous outcomes that will occur due to the present state of the Bill. I turn now to Amendments 69A and 70A that together would ensure that those who have experienced gender-based violence are able to access immigration advice and representation and are not placed at risk of experiencing further violence and abuse. The amendments would protect children, victims of domestic violence and trafficking, as well as other groups who are at risk of gender-based exploitation such as migrant domestic workers to whom the noble and learned Baroness referred. They would also protect others whose ability to represent themselves in an immigration law issue is impaired because of their age, illness or disability. The amendments would also confer a power to specify other classes of persons in regulations. The ““specified person””, as referred to in Amendment 70A would include children, victims of trafficking and victims of gender-based violence—men as well as women. The Government made the decision to bring back into scope legal aid for victims of domestic violence applying for indefinite leave to remain in the UK under the domestic violence rule—rule 189A of the Immigration Rules. Announcing that decision, the Minister for Legal Aid, said, "““There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status””.—[Official Report, Commons Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 19/7/11; col. 245.]" How that can be said over and over again and yet not followed through, I find difficult to accept. The concerns raised by the Minister apply equally to other vulnerable applicants in immigration cases who have experienced or are at risk of violence and abuse, who simply cannot be expected to represent themselves in applications effectively because of the trauma they have experienced. These include individuals who have been trafficked into the UK for the purposes of sexual or other exploitation, and migrant domestic workers—many of whom, as the noble and learned Baroness said, are trafficked into this country and are extremely vulnerable to exploitation and abuse because of the invisible nature of their work that takes place in private households, and who, because of their dependency on their employers for their work, accommodation and immigration status, can be exploited by their employers and find themselves in a very similar position to victims of domestic violence. I am told that there were around 15,000 migrant domestic workers issued with a visa to work in the UK in 2010. I am horrified to hear that there might be a move to remove their right to a visa. Research shows that 41 per cent of migrant domestic workers cite abuse or exploitation as their reason for changing their employer, but under the Bill legal aid will not be available for them to seek advice on how to regularise their immigration status or, if they wish, to change their employer. Equally, victims of domestic violence whose immigration status may not be dependent on maintaining an abusive relationship with their spouse may also be vulnerable to remaining in a violent relationship if they cannot access legal aid to regularise its immigration status. Rights of Women indicates that it receives many calls to their immigration and asylum law advice line from women whose leave is not dependant on their spouses, yet their insecure immigration status is still used by the perpetrator as a tool of control. All these cases raise complex issues and affect particularly vulnerable women whose fundamental human rights, including the right to be free from inhuman and degrading treatment, are at risk. Yet what sets these cases apart from other areas of law is that there are no alternative advice providers because it is a criminal offence for anyone to give immigration advice or services unless they are qualified to do so. Removal of legal aid for the cases such as those I have identified will place women at greater risk of violence and prevent those with valid legal reasons for remaining in the UK being able to access and benefit from their legal rights. This is not a marginal problem, because between 1 April 2009 and 31 March 2011 there were 1,481 referrals to the National Referral Mechanism, the national framework for the identification of human trafficking in the UK. We know that, in reality, the figure for individuals trafficked is likely to be higher. A further implication of the Bill is that they will not be eligible for legal aid because of the implications of being referred into the national referral mechanism, and therefore their informed consent for referral may be questioned. My information from Rights of Women is that it hears countless testimonies from women whose immigration status, which is often reliant on their abusers, has restricted their ability to leave a violent situation and access the advice and support services that they need. Without legal advice and representation, domestic violence victims, migrant domestic workers and trafficked victims remain reliant on misinformation from their abusers about their legal rights and status and are trapped and dependent upon violent relationships, placing their lives at risk. The amendments together would ensure that those who have experienced violence are able to access legal aid for immigration advice and representation. For too many women, their insecure immigration status is still used by the perpetrator as a tool of control. That cannot be justified. The amendments would eliminate that position. I beg to move.