Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, these amendments, supported by the Immigration Law Practitioners’ Association, which assisted in their drafting, were tabled to draw attention to and to remedy the inconsistency of the Government in claiming to protect legal aid for people whose liberty is at stake, while denying those who are liable to detention, pending their removal or deportation, the means to assert their claim before the tribunal constituted for that purpose. Paragraphs 22 to 24 of Schedule 1 allow a person who is detained under the Immigration Act to obtain legal aid to challenge their detention but not to contest the reasons for the refusal of their application for leave to remain. Over the past several years, more than one-quarter of appeals against refusal have been granted; the decision-making process is obviously seriously flawed. If the Government want to reduce spending on legal aid for immigration appeals they should concentrate on improving the quality of the UK Border Agency's decisions. Until now, those with genuine claims have had a reasonable chance of asserting their rights because they have been able to get legal aid. However, when Schedule 1 comes into effect, there is absolutely no doubt that some people who are entitled to remain here will be deported unlawfully. Among the many reasons given by respondents who were against the proposal to deprive applicants of legal aid in all immigration proceedings were the complexity of immigration legislation, the inequality of arms between the state and the individual applicant, the fact that many applicants would have little if any understanding of English law and the fact that English might not be their first language. The Government summarily dismissed all the respondents' arguments in three short paragraphs. They said that individuals in immigration cases should be capable of dealing with their immigration application and should not require a lawyer. If it is so easy to decide how to pursue immigration applications, why have Citizens Advice staff been instructed not to give advice on them but to take down the facts and send them to a solicitor? The Immigration Law Practitioners’ Association gives four examples of cases where the claimant would have been removed if the courts had not intervened. Two of the cases went all the way to the House of Lords. I will not detain the Committee by reading the details of the cases in full, but I invite the Minister to agree that in the first case—I assume that he received the note from ILPA—the trial judge found that the appellant, a Dutch national of Somali origin, would have been deported to Somalia or held in detention indefinitely under the Immigration Act but for the efforts of his solicitor. In the second case, the High Court ordered the release of an individual who had been detained unlawfully for 11 months under a secret Home Office policy when there was no realistic prospect of deporting him. In the third case, the House of Lords ruled that it would rarely be proportionate to remove a person if there was a close bond with his or her spouse, who could not be expected to follow them to their country of origin, or if the effect of the removal order would be to sever a genuine and subsisting relationship between the person and their child. In the final example, the appellant was a woman from Zimbabwe who was married to a British citizen, by whom she had a child. The Home Office had decreed that she had to return to Zimbabwe and make an application to come here as a spouse. In these four cases and many others, it would have been extremely unlikely—I dare say impossible for the two people whose cases went to the House of Lords—for the two appellants to have succeeded without legal aid. Again, I invite my noble friend to agree with that proposition. Will he also acknowledge that cases where someone is liable to detention with a view to their removal or deportation and passes the merits threshold for legal aid are among the most serious that come before the courts? If so, it cannot be denied that among them are instances of the most egregious errors by the state, extending to the wrongful removal of British citizens who have the right of abode in the UK. The importance of the issues at stake, such as the absence of any alternative source of funding or of any other means of resolving claims that the individual may even be incapable of formulating without professional advice, cries out against their removal from the scope of legal aid. So, too, does the risk of unintended and perverse effects such as an increase in asylum claims by people who would have had valid reasons to ask for leave to remain on other grounds, the need to accommodate and make allowance for an increase in the number of litigants in person, and the damage to the viability of practitioners who serve mainly asylum clients through the loss of their work on other immigration cases. It is certain that meritorious claims will be lost because the applicant is not legally aided, although official statistics on appeals do not separately identify those with representation and those without either at the stage of first decision by the UKBA or on appeal. The Ministry of Justice conducted a survey of litigants in person which concluded: "““Most evidence … indicated that case outcomes were adversely affected””," and: "““The weight of the evidence indicated that lack of representation generally had a negative effect on case outcomes””." In November 2011, the Civil Justice Council published a report on litigants in person and access to justice making recommendations on the basis that Schedule 1 remained intact. The authors warned: "““Even if all the recommendations we make are acted upon, they will not prevent the reality that … as a result of the reductions and changes in legal aid, there will be a denial of justice””." The Administrative Justice and Tribunals Council, in its devastating response to the consultation on the Government’s legal aid proposals, drawing on the previous study by the Legal Services Commission, found: "““In mental health and immigration, where issues are highly complex and representation is often required, the success rate is over 60%””." The council quotes evidence of the glaring disparity in the social security and child support tribunal between the success rates of litigants who are represented and unrepresented. They are 55 per cent and 28 per cent respectively. Although, unfortunately, there are no equivalent statistics for the immigration tribunal, it concludes that throughout the administrative justice system: "““If the proposals are pursued then the Government lays itself wide open to allegations that the withdrawal of legal aid is designed both to reduce the number of appeals … in general, even where they would probably be successful””." As regards immigration issues in particular: "““The AJTC also notes the extraordinary complexity of immigration law and takes issue with the assertion that ‘individuals will generally be able to represent themselves’””." It says: "““It is essential that appellants are properly advised and prepared before facing a highly complex process with potentially life-changing consequences””." Detainees are uniquely and materially disadvantaged in presenting their own cases, being isolated and incapable of gathering evidence, such as witness statements, and having no funds to pay for telephone charges, registered post or the copying of documents. The AJTC goes on to conclude: "““For all of these reasons””," of which I have mentioned just a few, it, "““strongly opposes the removal of legal aid for immigration advice””." Finally, I turn to the distinction made between detention and the underlying immigration matter. Hardly any of the respondents to the consultation challenged the decision to retain legal aid in relation to detention, but some experts, notably ILPA, disputed the Government’s assertion that legal aid providers would be able to distinguish between advice on detention and on the underlying reasons for the detention. It said: "““Challenging immigration detention is necessarily and intrinsically linked to challenging the underlying immigration decision which is both the cause of, and justification for, detention””." This needs to be spelled out for the record. In the case Lumba and Mighty, Lord Dyson, giving the lead judgment said that, "““it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one””." The merits of the appeal are directly relevant to the lawfulness of immigration detention. If the appeal is ultimately likely to be successful, the grounds for detention, which are to effect removal, must be commensurately weaker. If the detention is at the earlier stage where the person’s entitlement to enter the UK is being investigated, the same principle applies. The solicitor who advises him on the lawfulness of his detention at that point would have to look into the merits of the application for leave to enter because that would be the only practical reason for challenging his detention. I really hope the Government will think again about denying legal aid to immigration detainees and instead address the abysmal standards of decision-making by the UKBA, thus reducing the wholesale cost of the detention system and the administrative and legal costs of tribunals, and saving far more than they will by depriving meritorious immigrants of access to justice. I beg to move.